This judgment suggests that ISPs will not be considered common law publishers and therefore will not be liable for online defamatory posts unless they take a positive, technical step to maintain the publication. Although this is good news for ISPs, the judgment is contradictory to what was stated in a previous case on similar facts (Davison v Habeeb).[7] In that case, which was decided in November last year, it was held that Google was arguably the common law publisher of defamatory blogs on Blogger.com. This case may be appealed in the Court of Appeal and, if it is, Eady J’s findings on common law publication could come under scrutiny.
It was traditionally thought that ISPs had to take down content quickly following receipt of a complaint in order to avail themselves of the innocent dissemination and hosting defences. Yet the Tamiz judgment suggests that the burden on claimants to prove the strengths of their case (even at the notification stage) is greater and that ISPs have more time to deal with such allegations before they become liable for publishing online posts. One might wonder if claimants seeking the removal of other unlawful content (e.g. content that breaches IP rights) bear a similar burden of proof to that suggested by Eady J in this defamation case.
It is worth bearing in mind that Eady J’s comments on the innocent dissemination defence and the hosting defence were non-binding and will not necessarily be followed in subsequent cases.
In light of this, it would be brave for ISPs to change their internal policy with regard to defamatory posts until the conflict in the previous case law is resolved.