This appeal raises important questions relating to Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (Section I 2002 No 2013). The judgment appears to accept the proposition that the operation of a chat room is capable of falling within the definition of the provision of an information society service consisting of the storage of information, making it eligible for protection under the hosting safe harbour in Article 14 of the E-Commerce Directive (2000/31/EC).
Moreover, the safe harbour protection is not lost just because the site is also used for activities other than storage in this sense. However, any form of editorial control, even just checking a piece for spelling and grammar and making corrections, arguably goes beyond mere storage of information and takes the service provider outside the safe harbour, exposing it to liability for defamatory content on the blog.
This was an appeal by the second Defendant, Mr Hilton, against the refusal of his application for summary judgment against the Claimant, striking out a libel claim against him. The claim related to an allegedly defamatory blog posted by the first Defendant, Mr Gray, on Mr Hilton's website— labourhome.org—in April 2007. Ms Kaschke claimed that statements in the blog linked her to terrorism.
Mr Hilton applied for summary judgment on the basis that Ms Kaschke had no real prospect of success because he had a complete and independent defence under Section 1 of the Defamation Act 1996 and Regulation 19 of the E-Commerce Regulations 2002/2013 which implement the E-Commerce Directive into UK law.
Reliant upon Mulvaney v Betfair  EIHC 133 and Karim v Newsquest  EWHC 3205, the judge found that was no reason why the operation of a chat room should be incapable of falling within the definition of the provision of an information society service consisting of the storage of information. Thus there was no reason why it should not be an activity intended to be protected by Article 14 of the E-Commerce Directive and eligible for the exclusion from liability conferred by Regulation 19.
He further drew the conclusion that there was no reason why the protection should be withheld merely because a defendant who would otherwise qualify for protection, provided a different service which did not qualify for it.
In this case, the question was whether the information society service provided by the Defendant in respect of the information contained in the defamatory words consisted only of and was limited to storage of that information.
Mr Hilton from time to time identified recommended or recent blogs and his evidence showed that he might (but did not always) quickly check such pieces for spelling and grammar and make corrections. The issue was whether Mr Hilton did or did not in any way edit, amend or alter any of the content or appearance of Mr Gray's blog. It was not "wholly fanciful" that evidence in cross-examination might reveal that Mr Hilton's hosting of Mr Gray's blog went beyond mere storage. On that basis, the Master was correct in refusing to strike out Ms Kaschke's claim.
The clear message from Stadlen J's judgment is that intervention of any sort at any time, whether pre or postmoderation for offensive content, or merely correcting dispassionately grammar or spelling, takes the service beyond mere storage and outside the safe harbour. Nonetheless the case is also significant for its endorsement of the broad application of Regulation 19 in Karim, extended arguably still further by the judge's finding that the relevant service for the purposes of the defence was not the hosting of all blogs on the website but the hosting of particular information provided by a particular recipient of the service, as opposed to the storage of all information provided by all recipients of the service.