ISP Liability in England (oh yeah, and Wales too)

Michael Geist notes the recent decision in Bunt v. Tilley, a case in the High Court of Justice, Queen’s Bench Division. The plaintiffs in the case argued for holding ISPs liable when their services are used in defamation. Happily, they lost.

There is an argument that ISPs represent the most efficient source at which to control all kinds of bad acts, including gambling, defamation, copyright violation, propagation of viruses, and so on. As I argued in my Regulation paper “Against ISP Liability,” though, efficiency is not the highest goal of legal rules.

Supposedly efficient ISP liability would be devastating to the Internet. I quote me:

Consider the Internet access market and the viability of the network effect if ISPs were liable for copyright violation, obscenity, and defamatory statements put out by their clients. Looking at potentially massive payouts, ISPs would screen content thoroughly, charging clients substantially higher sums for the service. They would restrict their clientele to established media companies and sophisticated, wealthy parties who could
indemnify them.

Under such a regime, the Internet might be about where digital cable systems are, with lots of downstream content and very little opportunity for interactivity, much less individual publishing. The robust, democratized, one-to-all medium we have today . . . was not a foregone conclusion in its early years.

So I approve of the result in Bunt v. Tilley, though there are flaws. Geist points out a suggestion in the case that notice to an ISP of defamatory content might be enough to create liability. But I hope that future cases will dispel that notion.

I like to think that what is happening here is what would have happened in the U.S. in the absence of the Communications Decency Act, which preemptively did away with ISP liability. Me I quote approvingly again:

Had common law processes been left to determine ISPs’ liability, a variety of courts would have weighed the competing interests through strings of real-world decisions over several years. As likely as not, they would have concluded that ISPs have no duty to protect the world from their clients.

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