The tort of defamation, traditionally, attempts to balance society's interest of free speech and the individual's right to his reputation. The way in which this balance is struck varies from jurisdiction to jurisdiction (while some are more pro-plaintiff, others are more pro-defendant). However, the way this balance is struck in any jurisdiction determines how open a country is to free speech and dissemination of information.
That traditional function of the law of defamation is now under threat with the proliferation of information over the Internet and especially so due to its multi-jurisdictional nature. One big fear is that defamation laws can no longer effectively protect the reputation of the individual. Against this is the fear that the application of traditional defamation principles on the on-line environment is likely to fetter the effectiveness of the Internet as a channel of global communication and electronic commerce.
In so far as the Internet is concerned, defamation liability has its most important implication in respect of ISPs and websites (including e-business sites) which host the content of others. Thus, raising the prickly question of the liability of the so-called "innocent disseminators". Their liability must balance the need to protect the reputation of individuals who are defamed by postings on a global scale, against the need to ensure that through the ISPs and hosting websites, global information flows unimpeded.
The Defence Of "Innocent Dissemination"
Historically, publishers of material, like newspapers, who exercise editorial control have been held liable for defamation without the benefit of the defence of innocent dissemination. However, mere distributors, like newspaper vendors, have been able to avail themselves of that defence. It provides, in a nutshell, that if innocent disseminators of defamatory statements did not know of the statements, and there were no circumstances that ought to have alerted them to it (provided that they were not negligent in not being so alerted), they are protected from liability.
Liability of ISPs and Hosting Websites under the Defamation Act 1996
The historical common law defence of innocent dissemination is enshrined in section 1(1) of the Defamation Act 1996 ('the Act'), which provides that in a defamation action a person has a defence if he shows that:
he was not the author, editor or publisher of the statement;
he took reasonable care in relation to its publication; and...