In Kaschke v Gray & Hilton, the High Court has ruled on the availability of the ‘hosting’ defence in Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (the Regulations) in the context of an allegedly defamatory blog post.
Regulation 19 of the Regulations implements Article 14 of the E-Commerce Directive. Regulation 19 provides:
Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where –
(a) the service provider –
(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or
(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information and,
(b) the recipient of the service was not acting under the authority or the control of the service provider…
Hilton (H) operated and controlled a political commentary website on which Gray (G) posted a blog entry allegedly defamatory of Kaschke (K). K brought proceedings against H for libel. H relied on the Regulation 19 hosting defence and sought summary judgment to strike out K’s claim. The application failed and H appealed.
On appeal, the High Court was called on to interpret Regulation 19, in particular whether H’s information society service amounted to mere storage of information allowing the hosting defence to be available to him.
It was clear from the evidence that H took an active role in relation to the website as a whole. He secured articles from high profile politicians or writers, wrote articles himself to go onto the website and conducted polls and interviews which also went onto the website. He took a more limited role in relation to individual blog posts. In relation to these he read and ‘promoted’ the most interesting by making them more prominent on the page. At the same time, he corrected the spelling and grammar. He also deleted some posts; those which he thought were offensive or which were obviously spam. Until receiving a letter before action from K, H had never read G’s post or promoted it.
Mr Justice Stadlen held that the H was providing an information society service. In this case, the information society service was not the website as a whole or the hosting of all blogs posted on the webpage. If it had been either of this the hosting defence would not have been available to H as it was clear that his role in relation to both went beyond mere storage. The information society service was in fact the hosting of G’s blog alone. H had done nothing with the blog and had not even read it. It had been posted to the website without any intervention by H. In relation to G’s blog entry, H had done nothing more than merely stored the information and was therefore potentially able to rely on the hosting defence in relation to the claim for libel. H would not be precluded from relying on the defence merely because he also provided the same or different information society services which went beyond mere storage of information.
However, the judge held that exactly what role H had taken in relation to G’s blog post needed to be investigated further and so the matter should go to trial. H’s appeal was dismissed.
Click here to read the judgment