Libel and the Internet

[DrC0721]

Who says whilst these days? Interesting thread though. Good food for thought.

 

[straydog]

This is correct. Specific damages are important. For example if there was a young rider who was about to sign a professional contract and someone came on here and repeated posted that he was a doper, that he had seen him dope, etc. If the DS read this and decided not to sign him.....and was willing to testify that the reason he did not sign him was because what a poster said about his doping he might have a case for damages.

On the other hand if a poster repeatedly made invented lies about me or my family. Writing that "Race Radio did XXX" I would have no recourse as I am anonymous, I do not own the username or trademark for "Race Radio" and I could show no actual damages. If I pursued such a case against another poster, especially in the UK, I would expose myself to picking up all the court costs for both sides.

Another interesting point about UK law is you cannot libel nicknames, even if the owner of the nickname is known. Using Wonderboy, Big Tex, Uniballer, etc. is a good option. This also makes it pretty much impossible for us to sue each other on this forum as we all use nicknames (Usernames) to address each other.

This is a valid point RR....the reason I posted this thread however wasn't because I was concerned that one of us might try to sue another for name calling....lol I think we all understand how the burden of proving "harm" might be difficult in that situation, just in case someone is upset about being called a troll too often, or a "fanboy" etc....save your pennies...you aint gonna win.

Harrasment, and the legislation in place to protect people from it, however, i would say is something to possibly bear in mind.....if we look at certain recent "meltdowns" both here and on other sites connected to here.

But essentially RR....your first point is my main reason for raising this thread. There are some posters here that use their real name....and also obviously a lot of people, other than just LA by the way BroDeal, are discussed here, and accusations are often thrown. Also, and I am not looking at anyone here honestly, pictures are sometimes used to illustrate a point, or provide humour etc. Now those pictures, if they are of public figures, do of course fall under "fair comment" etc for any satire, but where those pictures might include "innocent" parties, and harmful connotations could be construed, I think it could get a bit murkier.

Also Barrus,

I am interested by your assertion....The reason why a famous person would not sue, is because a public figure has almost no chance of winning, due to the fact that most legal regimes have some regulation about public figures in their defamation doctrine which offer great breadth, or almost complete immunity in some regimes, for the person making the statements.

famous people have no chance of winning and we have more or less complete immunity if we want to defame them?....the first article i linked to examples a case where that is explicitly not true...I am genuinely interested why you say that? And do you have any links or info to illustrate?

 

[Race Radio]

This is a valid point RR....the reason I posted this thread however wasn't because I was concerned that one of us might try to sue another for name calling....lol I think we all understand how the burden of proving "harm" might be difficult in that situation, just in case someone is upset about being called a troll too often, or a "fanboy" etc....save your pennies...you aint gonna win.

Harrasment, and the legislation in place to protect people from it, however, i would say is something to possibly bear in mind.....if we look at certain recent "meltdowns" both here and on other sites connected to here.

But essentially RR....your first point is my main reason for raising this thread. There are some posters here that use their real name....and also obviously a lot of people, other than just LA by the way BroDeal, are discussed here, and accusations are often thrown. Also, and I am not looking at anyone here honestly, pictures are sometimes used to illustrate a point, or provide humour etc. Now those pictures, if they are of public figures, do of course fall under "fair comment" etc for any satire, but where those pictures might include "innocent" parties, and harmful connotations could be construed, I think it could get a bit murkier.

Also Barrus,

I am interested by your assertion....The reason why a famous person would not sue, is because a public figure has almost no chance of winning, due to the fact that most legal regimes have some regulation about public figures in their defamation doctrine which offer great breadth, or almost complete immunity in some regimes, for the person making the statements.

famous people have no chance of winning and we have more or less complete immunity if we want to defame them?....the first article i linked to examples a case where that is explicitly not true...I am genuinely interested why you say that? And do you have any links or info to illustrate?

Complete immunity is a real challenge. They would have a higher burden then the average poster. I think the only person that could really claim libel on this forum would be Joe Papp as he uses his real name and links to his website, email, etc, on every thread. Even JV would have a challenge as he uses a nickname/username.

 

[Barrus]

Also Barrus,

I am interested by your assertion....The reason why a famous person would not sue, is because a public figure has almost no chance of winning, due to the fact that most legal regimes have some regulation about public figures in their defamation doctrine which offer great breadth, or almost complete immunity in some regimes, for the person making the statements.

famous people have no chance of winning and we have more or less complete immunity if we want to defame them?....the first article i linked to examples a case where that is explicitly not true...I am genuinely interested why you say that? And do you have any links or info to illustrate?

It all depends on the jurisdiction what the exact, but for example in the US it is necessary for a public figure to show that the writer of the message had 'actual malice' and knew that the information was false or acted in 'reckless disregard of whether it was true'. The last needs to be proven on a subjective standard, whether the author doubted the truth of the message. See Curtis Publishing Co. v. Butts, which extended New York Publishing v. Sullivan to all kinds of public figures, including celebrities. This higher burden of proof often makes it almost impossible for a public figure to be successful in a defamation suit.

I cannot really give you any links, as most sources I use are not commonly accessible, but I believe the wiki article is quite short and pretty accurate

 

[straydog]

Complete immunity is a real challenge. They would have a higher burden then the average poster. I think the only person that could really claim libel on this forum would be Joe Papp as he uses his real name and links to his website, email, etc, on every thread. Even JV would have a challenge as he uses a nickname/username.

I agree on the Joe Papp part. But a public figure who has been "defamed" on this site doesn't have to be a member of this site to take action. This is still a public forum, any material posted is deemed to have been "published" by being here, and as such if it can be proved that it causes harm, or was an act of malice, then as such it is subject to the same sanctions as if it were in a newspaper or magazine etc.

It all depends on the jurisdiction what the exact, but for example in the US it is necessary for a public figure to show that the writer of the message had 'actual malice' and knew that the information was false or acted in 'reckless disregard of whether it was true'. The last needs to be proven on a subjective standard, whether the author doubted the truth of the message. See Curtis Publishing Co. v. Butts, which extended New York Publishing v. Sullivan to all kinds of public figures, including celebrities. This higher burden of proof often makes it almost impossible for a public figure to be successful in a defamation suit.

I cannot really give you any links, as most sources I use are not commonly accessible, but I believe the wiki article is quite short and pretty accurate

The highlighted section is the part I have difficulty believing without links Barrus.....I can think of plenty of cases of high profile cases, not just here in the UK, where public figures have sued for libel and been successful....maybe I am not understanding what it is you are saying, but I find it a very strange assertion.

Also I don't remember who it was who posted the link to the EFF website, but firstly they are an organisation that aims to protect anonymity on the web, so I am not really sure that their site provides much balance, for example they list their victories, but not their defeats....

Secondly, as far as I can see most of the material you posted a link to dates back a lot further than 2008....

 

[Dr. Maserati]

Following reading some pretty salacious rumor mongering and accusations on certain threads here, I thought it might be worth starting this thread, firstly in case anyone hadn't considered any of the issues involved and secondly to see if anyone has anything to add to the discussion....


So a few links to get things started:

http://www.guardian.co.uk/media/2006/mar/23/digitalmedia.law

http://www.ehow.com/how_2040840_sue-someone-internet-libel.html

http://technology.timesonline.co.uk/tol/news/tech_and_web/the_web/article3677002.ece

Interested to hear peoples thoughts....no name calling though....or I will call my lawyer

I know you were not a member at the time but this issue has been discussed on a few occassions before you arrived. But no harm to highlight it again.

A quote I made last year:

In August a court in NYC ordered Google to reveal the identity of a 'blogger' who had 'bad-mouthed' a New York model.

Article here.

 

[Barrus]

I agree on the Joe Papp part. But a public figure who has been "defamed" on this site doesn't have to be a member of this site to take action. This is still a public forum, any material posted is deemed to have been "published" by being here, and as such if it can be proved that it causes harm, or was an act of malice, then as such it is subject to the same sanctions as if it were in a newspaper or magazine etc.

NO, no no, it is not similar as a newspaper or a magazine, at least not for the internet service provider, they cannot be likened to a publisher in traditional media.

The highlighted section is the part I have difficulty believing without links Barrus.....I can think of plenty of cases of high profile cases, not just here in the UK, where public figures have sued for libel and been successful....maybe I am not understanding what it is you are saying, but I find it a very strange assertion.

As I said, that was in the US. I did not say it was completely impossible, but in most cases it is at best improbable. There is a large burden of proof on the person instigating the case, something which in most cases proves to be insurmountable, this is one of the reasons why most public figures do not even start a defamation suit. The person who thinks they were libeled need to proof with clear and convincing evidence that the statement was false. Which especially in the case of this forum, with doping is almost impossible to do.

Off course in the case of journalism it is sometimes easier to do, yet this can't be said to be applicable for this forum

Another aspect which need to be viewed particularly in the case of this forum, is the lack of damages which would effect the plaintiff, in cases here on the forum it is very unlikely that it would have monetary or otherwise effect on those that you would call libelled

 

[straydog]

I know you were not a member at the time but this issue has been discussed on a few occassions before you arrived. But no harm to highlight it again.

A quote I made last year:

Article here.

Cheers for the link....very interesting.

As to this being discussed before, from what I can see it has been part of a side discussion in other threads, so I thought it warranted it's own thread.

 

[straydog]

NO, no no, it is not similar as a newspaper or a magazine, at least not for the internet service provider, they cannot be likened to a publisher in traditional media.



As I said, that was in the US. I did not say it was completely impossible, but in most cases it is at best improbable. There is a large burden of proof on the person instigating the case, something which in most cases proves to be insurmountable, this is one of the reasons why most public figures do not even start a defamation suit. The person who thinks they were libeled need to proof with clear and convincing evidence that the statement was false. Which especially in the case of this forum, with doping is almost impossible to do.

Off course in the case of journalism it is sometimes easier to do, yet this can't be said to be applicable for this forum

Another aspect which need to be viewed particularly in the case of this forum, is the lack of damages which would effect the plaintiff, in cases here on the forum it is very unlikely that it would have monetary or otherwise effect on those that you would call libelled

YES, yes, yes.....lol....as you can see in some of the articles I have presented, this is exactly the assertion that have courts have made. That ISPs are in effect the "publisher" of any relevent material. i.e if they do not react to remove the offensive or libelous comments, they can and have been held responsible.

....I did not say it was completely impossible but you did say it was more or less impossible...and pretty much impossible....which I don't think the articles I have posted concur with.

Listen, I have never said I think pursuing a libel claim is easy, my point is that it is certainly possible and has been done with regards to anonymous posts on the internet and seems to be on the rise.

Not providing links again Barrus...I am going to have to quote Ironside....

"Objection....Speculation!"

 

[Race Radio]

I agree on the Joe Papp part. But a public figure who has been "defamed" on this site doesn't have to be a member of this site to take action. This is still a public forum, any material posted is deemed to have been "published" by being here, and as such if it can be proved that it causes harm, or was an act of malice, then as such it is subject to the same sanctions as if it were in a newspaper or magazine etc.

I think you may be confused as to what I wrote.

I used Joe as an example as he is one of the few public figures that posts on this forum who includes his identity in all of his posts. As I have written it is not possible to libel a nickname.

 

[Barrus]

YES, yes, yes.....lol....as you can see in some of the articles I have presented, this is exactly the assertion that have courts have made. That ISPs are in effect the "publisher" of any relevent material. i.e if they do not react to remove the offensive or libelous comments, they can and have been held responsible.

....I did not say it was completely impossible but you did say it was more or less impossible...and pretty much impossible....which I don't think the articles I have posted concur with.

Listen, I have never said I think pursuing a libel claim is easy, my point is that it is certainly possible and has been done with regards to anonymous posts on the internet and seems to be on the rise.

Not providing links again Barrus...I am going to have to quote Ironside....

"Objection....Speculation!"

If you mean that one link which does state that in the US an ISP could be held accountable as a publisher, that link is severely outdated. Really that has not been the case since 1996 when the Communications Decency Act was enacted. Section 230 of this act protects the ISP and this was exactly because of the cases mentioned in that link of yours, I believe the names were Stratton Oakmont v. Prodigy services and the other case's name has slipped my mind. This section has been reaffirmed in several cases which all show that there are only particular cases in which an ISP can be held accountable. Such as in Fair Housing v. Roommates.com, but this was solely due to the fact that the latter was directly involved and was responsible for the information that was being hosted.
However in cases such as Zeran v. America Online, Joe v. Sexsearch, Dart v. Craigslist, Carafano v. Metrosplash and several others the ISP was found to not be accountable. AS long as the ISP does not provide the information, he cannot be held accountable in the US at the moment.

Again, I can provide links, yet you cannot access the information in those links, therefore it would be futile for me to provide these links

Also @ straydog, you do realise that the cases where a defamation case is successfull for a public figure, are the anomaly and therefore come in the news?

EDIT: Just to be clear my statement concerning defamation was based on US law, not on UK law, as your examples are. DIfferent jurisdictions, different rules, one of the reasons for libel tourism.

 

[straydog]

I think you may be confused as to what I wrote.

I used Joe as an example as he is one of the few public figures that posts on this forum who includes his identity in all of his posts. As I have written it is not possible to libel a nickname.

no not confused at all.....I read and agreed with that in a previous post.

My point was that if, for example, someone states anonymously on this site: "Rider X is doping. I definitely know that, a friend told me. And what's more he had an affair with Sarah Palin's Daughter, she told me"

Then "Rider X" will have the potential to seek legal recourse for any damage to his reputation.

I don't think we are disagreeing here....odd as that may seem to you

 

[straydog]

If you mean that one link which does state that in the US an ISP could be held accountable as a publisher, that link is severely outdated. Really that has not been the case since 1996 when the Communications Decency Act was enacted. Section 230 of this act protects the ISP and this was exactly because of the cases mentioned in that link of yours, I believe the names were Stratton Oakmont v. Prodigy services and the other case's name has slipped my mind. This section has been reaffirmed in several cases which all show that there are only particular cases in which an ISP can be held accountable. Such as in Fair Housing v. Roommates.com, but this was solely due to the fact that the latter was directly involved and was responsible for the information that was being hosted.
However in cases such as Zeran v. America Online, Joe v. Sexsearch, Dart v. Craigslist, Carafano v. Metrosplash and several others the ISP was found to not be accountable. AS long as the ISP does not provide the information, he cannot be held accountable in the US at the moment.

Again, I can provide links, yet you cannot access the information in those links, therefore it would be futile for me to provide these links

Also @ straydog, you do realise that the cases where a defamation case is successfull for a public figure, are the anomaly and therefore come in the news?

EDIT: Just to be clear my statement concerning defamation was based on US law, not on UK law, as your examples are. DIfferent jurisdictions, different rules, one of the reasons for libel tourism.

Barrus, thanks for the reply and the examples....

You seem to be saying, that Yes it can happen, but has not happened very often....

What I have been saying is that I have a feeling that it might be happening a bit more often from now onwards. As precedents are set etc.

As to the highlighted part....absolutely...and CN being a UK based operation makes that even more salient in my opinion.

 

[Barrus]

Barrus, thanks for the reply and the examples....

You seem to be saying, that Yes it can happen, but has not happened very often....

What I have been saying is that I have a feeling that it might be happening a bit more often from now onwards. As precedents are set etc.

As to the highlighted part....absolutely...and CN being a UK based operation makes that even more salient in my opinion.

ISP liability in the US cannot happen in the case of user generated content, as a forum is. In the UK, the exact rules I don't know from the top of my head, I'll need to have a look at my research for that. If you want to know that, let me know, I'll come back on that.

In the case of defamation, yes it can happen, but is unlikely and even though there are new precedents it will remain extremely unlikely to be effective.

Concerning the fact that CN is a UK based operation, is not really of any concern, as defamation, as most other torts the jurisdiction can be based on different factors. It depends on the jurisdiction what rules are in effect, but the most common ones are the jurisdiction of the place of residence of the defendant, or lex loci delicti known as Handlungsort, meaning the place where the actions that constitutes the tort took place or lex loci damni also known as Erfolgsort, the place where the damages occurred. The country of registration of the company CN is of no concern

 

[Anonymous]

I think you may be confused as to what I wrote.

I used Joe as an example as he is one of the few public figures that posts on this forum who includes his identity in all of his posts. As I have written it is not possible to libel a nickname.

Well, not an anonymous nickname. If the nickname is of a person that is commonly known then assumption can be made that you are being libelous towards the person. Dodgy area though.

 

[kiwirider]

Concerning the fact that CN is a UK based operation, is not really of any concern, as defamation, as most other torts the jurisdiction can be based on different factors. It depends on the jurisdiction what rules are in effect, but the most common ones are the jurisdiction of the place of residence of the defendant, or lex loci delicti known as Handlungsort, meaning the place where the actions that constitutes the tort took place or lex loci damni also known as Erfolgsort, the place where the damages occurred. The country of registration of the company CN is of no concern

Not quite true - at least not in most of the English based/Commonwealth jurisdictions. I'm a bit rusty on defamation law (more involved with contracts and commercial over the past few years), so this is based on my memory of law school and some subsequent case work in NZ. Would welcome input from any forum members who are Commonwealth lawyers and more current than I am on defamation law.

Like you say, chief principle is that you go to the defendent's court. So, in the case of a suit against CN, the starting point is to file in the UK - unless the company somehow still retains its Australian registration from back when it was first started?

Anyhow, a plaintif could file in another jurisdiction if it suited them - eg., a certain American cyclist is defamed and figures that filing in a state in the south of the country might increase his chances of a large payout. As defendent, CN would have the option of acceding to that filing or filing a counter-motion on the basis of forum conveniens (actually forum non-conveniens, but for some reason the "non" is usually dropped when talking about it). Basically - as most readers could guess from the title - the motion is saying that it is not "convenient" for the case to be held in that other jursidiction. "Convenient" is measured on a wide range of different factors - some of which are practical (eg., if a case was judge alone and required a site visit, an expert witness who is unable to travel, etc) and some of which are more about arguing for the applicability of particulars of the legal system of a given country (eg., CN could actually argue to go to the US to take advantage of the ISP protection law if there aren't the equivalent laws in the UK). Exact application of this part of civil procedure seems to be very country/jurisdiction specific. A famous example of that principle at work is the McLibel case where McDonalds sued the London Greenpeace protesters in the UK.

So, to come back to the scenario of having a go at CN - if a case wasn't filed in the UK, then - based on my experience of working in a couple of other Commonwealth jurisdictions - they'd have good grounds for arguing that it should be filed there (or Aussie if they're still registered there).

Another apparent difference in the defamation laws outside of the US (I say apparent because I haven't worked in any US jurisdiction, so don't know US law) are the elements needed to give rise to a cause of action. Again, in most Commonwealth jurisdictions, the elments of a cause of action are:
- that the statement was defamatory - by which I mean that it causes "right thinking members of society" to think less of the person; and
- it was published - which means "put out there" rather than necessarily put into print.
Arguments will centre around things like the meaning of the alleged defamatory statement, whether it did actually cause anyone to think worse of the person involved, whether it was published, etc. Defendents are usually the people with the deepest pockets - hence the media being usually added as a party along with the person who made the actual statement.

Among the defences is what is known back in NZ as honest opinion - which means that you hold an opinion that it is reasonable to hold on the totality of the facts and make a statement of that opinion. This defence used to be called - and is still called in some jurisdictions - "fair comment", which I think gives a lay person a better handle of what it's about.

To apply that defence to someone on CN commenting about our hypothetical american cyclist - if one was to read about one of his samples having been retrospectively tested and found to be positive and about donations to sporting bodies and him having soundly beaten a number of proven dopers, then one could, on the basis of honest opinion/fair comment, posted an opinion that he was most likely to be a doper too and not expose oneself to a defamation action ...

Hope that's some use/interest - like anything to do with the law, there are technicalities and fine points of argument, but as a broad brush "defamation 101" that's pretty much where things are at ...

And on that note, the day job calls ....

 

[Barrus]

But I actually meant to start a case against the person that defamed someone, not against CN.

Now if they want to start a case against CN it would be a different case in New zealand, not a standard defamation case.
Pleas excuse as I do not know the intrinsic details of this situation in New Zealand, this is just based on some rudimentary research. If I am not mistaken in New Zealand no case has yet been brought under this, nor has this issue been dealt with by any Act of New Zealand. The only exception to this was a change in FVPCA, which is not really of interest to this.

However if you look at the general picture in several commonwealth countries it is clear that they follow to some extend the standard set by the e-commerce Directive of the European Commission, which can be easily located online.

 

[straydog]

Not quite true - at least not in most of the English based/Commonwealth jurisdictions. I'm a bit rusty on defamation law (more involved with contracts and commercial over the past few years), so this is based on my memory of law school and some subsequent case work in NZ. Would welcome input from any forum members who are Commonwealth lawyers and more current than I am on defamation law.

Like you say, chief principle is that you go to the defendent's court. So, in the case of a suit against CN, the starting point is to file in the UK - unless the company somehow still retains its Australian registration from back when it was first started?

Anyhow, a plaintif could file in another jurisdiction if it suited them - eg., a certain American cyclist is defamed and figures that filing in a state in the south of the country might increase his chances of a large payout. As defendent, CN would have the option of acceding to that filing or filing a counter-motion on the basis of forum conveniens (actually forum non-conveniens, but for some reason the "non" is usually dropped when talking about it). Basically - as most readers could guess from the title - the motion is saying that it is not "convenient" for the case to be held in that other jursidiction. "Convenient" is measured on a wide range of different factors - some of which are practical (eg., if a case was judge alone and required a site visit, an expert witness who is unable to travel, etc) and some of which are more about arguing for the applicability of particulars of the legal system of a given country (eg., CN could actually argue to go to the US to take advantage of the ISP protection law if there aren't the equivalent laws in the UK). Exact application of this part of civil procedure seems to be very country/jurisdiction specific. A famous example of that principle at work is the McLibel case where McDonalds sued the London Greenpeace protesters in the UK.

So, to come back to the scenario of having a go at CN - if a case wasn't filed in the UK, then - based on my experience of working in a couple of other Commonwealth jurisdictions - they'd have good grounds for arguing that it should be filed there (or Aussie if they're still registered there).

Another apparent difference in the defamation laws outside of the US (I say apparent because I haven't worked in any US jurisdiction, so don't know US law) are the elements needed to give rise to a cause of action. Again, in most Commonwealth jurisdictions, the elments of a cause of action are:
- that the statement was defamatory - by which I mean that it causes "right thinking members of society" to think less of the person; and
- it was published - which means "put out there" rather than necessarily put into print.
Arguments will centre around things like the meaning of the alleged defamatory statement, whether it did actually cause anyone to think worse of the person involved, whether it was published, etc. Defendents are usually the people with the deepest pockets - hence the media being usually added as a party along with the person who made the actual statement.

Among the defences is what is known back in NZ as honest opinion - which means that you hold an opinion that it is reasonable to hold on the totality of the facts and make a statement of that opinion. This defence used to be called - and is still called in some jurisdictions - "fair comment", which I think gives a lay person a better handle of what it's about.

To apply that defence to someone on CN commenting about our hypothetical american cyclist - if one was to read about one of his samples having been retrospectively tested and found to be positive and about donations to sporting bodies and him having soundly beaten a number of proven dopers, then one could, on the basis of honest opinion/fair comment, posted an opinion that he was most likely to be a doper too and not expose oneself to a defamation action ...

Hope that's some use/interest - like anything to do with the law, there are technicalities and fine points of argument, but as a broad brush "defamation 101" that's pretty much where things are at ...

And on that note, the day job calls ....

Great post...very informative...Thanks

And Barrus... I think his reference to a suit against CN was in relation to my point, that if someone wished to take action against the "publisher" of defamatory comments....in this case it would be CN who as the host of the forum would be considered the publisher, especially if they didn't act to remove anything libelous once their attention had been drawn to it.

 

[kiwirider]

And Barrus... I think his reference to a suit against CN was in relation to my point, that if someone wished to take action against the "publisher" of defamatory comments....in this case it would be CN who as the host of the forum would be considered the publisher, especially if they didn't act to remove anything libelous once their attention had been drawn to it.

That's exactly right. I was going to type the same response to Barrus, but you saved me doing it - thanks!

 

[Barrus]

That's exactly right. I was going to type the same response to Barrus, but you saved me doing it - thanks!

Ah, allright I guess I misunderstood your post.

And Barrus... I think his reference to a suit against CN was in relation to my point, that if someone wished to take action against the "publisher" of defamatory comments....in this case it would be CN who as the host of the forum would be considered the publisher, especially if they didn't act to remove anything libelous once their attention had been drawn to it.

But Again, this is not the case. Look, if you want to know it from the UK, here is a short thing about it.

Please be advised that this is a rough first draft of this part of my research and is not to be construed like this. The acts and directives named in this part are easily accessible online

Firstly within the e-commerce directive of the European Commission

The service providers which do not only temporarily store the information, but retain the information and their possible exclusion of liability are described in article 14 of the directive. Again this is not a blanket exclusion, it is restricted by certain requirements. In this case the provider needs to have no knowledge of any illegal activity of information, nor must it be aware of any facts or circumstances which show apparent illegal action or information. Secondly, if such knowledge or awareness is obtained in any manner the provider is required to remove or disable access to this illegal activity or information. A further delineation is mentions in paragraph 2 of the article which states that there is no exclusion of liability if the content generator is acting either under the authority or the control of the provider. In the third paragraph the article does indicate that the provider can be required, by member states, to ensure that the publishing of any illegal activity or information is prevented on the basis of a decision by a court or an administrative authority.

However such a directive needs to be implemented in domestic law, and as you are talking about the UK:

In the UK the E-commerce Directive was implemented 2002, by passing the Electronic Commerce Regulations 2002, with provider liability described in article 17 to 22. Much of the Directive was directly transcribed in the Regulations, but there are some differences. One major difference is article 21, which describes the use of exemption of liability as a defence in criminal proceedings, it states that this regulation can be used as a defence in criminal proceedings, and if it is used in this manner the prosecution has the duty to prove beyond a reasonable doubt that the requirements for exception of liability are not fulfilled.

Another important difference with the regulation is article 22, in this article the standard for actual knowledge is laid down. This is more extensive than is the case in most of the other states their legislation implementing the Directive. The article states that all the facts and circumstances need to be taken into account, however it draws attention to one particular circumstance, which probably needs to be seen as the most important. This circumstance is whether the provider has been notified of the infringement through some form of contact. Unlike in other states this notice system is quite limited in its scope, there are several requirements which a notice needs to fulfil to make the provider have actual knowledge of an infringement. The notice can not be anonymous, it needs to have a name and an address of the sender. The other requirements are quite logical, those being the location of the violation and the details on the unlawful nature of the violation.

Another important difference is the exclusion of an article similar to article 15 of the E-Commerce Directive in the implementation. This means that there is no article stating that the provider does not have an obligation to actively monitor the content it provides. However taking into account the requirement that the Regulations have to determine actual knowledge, it can be seen as though the absent of such an obligation can be implied.

In the UK there has been a similar case against Ebay as was the case in Germany, however the English courts did not share the view of the German colleagues. The English judges stated that there is no obligation of ISPs to ensure that further infringements do not occur when they gain knowledge of a particular kind of infringement. This means that the scope of the exception is broader in the United Kingdom legal system than is the case in the German legal system.

Now if you look at the development in the world, but especially in the commonwealth two types of trends are there, the trend of following the US and creating an almost complete exemption of liability, or that of the EU which provide for a bit more limited exemption, but still for a large exception to liability. Now if you look at the requirements for actual knowledge in the UK you can see why suits against CN will not be successfull, because there is no actual knowledge at CN. One should take into account that the interpretation of this exception of liability is not the same all over the EU, there are difference, most notably in the interpretation of actual knowledge and what a provider should do to prevent abuses from happening

Off course there are states that are an exception to these trends, but really the global trend is one towards a larger exception of liability for ISPs