Bunt v Tilley

Bunt v Tilley & Others (High Court)

Area: Defamation / Libel

Principle: ISPs cannot be held liable for defamatory comments as publishers.

In this case, a claimant sued three individuals for libel and harassment over posts on internet chatrooms. The claimant also sued the individuals’ ISPs (AOL, Tiscali, and BT).

The case held that ISPs were not publishers at common law as an internet service provider is a “passive medium of communication”.

The case also held that ISPs were “information society service” providers within the definition of the Electronic Commerce Regulations and, as such, would be able to rely on the “mere conduit”, “hosting”, and “caching” exceptions to intermediary liability that can be found in the Electronic Commerce (EC Directive) Regulations 2002 (Sections 17, 18, 19).

It is important to note that, of the above liability shields, the “hosting” exemption can be disapplied if the host is provided “actual knowledge” that they are hosting potentially unlawful material. This disapplication upon actual knowledge does not apply to the other two exemptions.

It was also found that s.1 of the Defamation Act 1996 (another liability exemption specifically for defamation) would apply in this scenario and offer the ISPs full protection as they were not the “author”, “editor” or “publisher” of the statement concerned.