The general rule of UK defamation law is that the publisher of defamation faces liability. This applies to FE and HE institutions in the same way as to any other publisher.
Under general principles of law, institutions may be liable for defamation if they know, or have reason to know that the information distributed on their websites/networks is defamatory. There is an obligation on the institution to take offending material down once notified that it is defamatory.
JISC Legal has published an Overview paper on Internet Service Provider Liability and it is available on the JISC Legal website at - http://www.jisclegal.ac.uk/ManageContent/ViewDetail/ID/149/Hosting-Liability--Overview-for-FE-and-HE-Institutions-23112007.aspx.
Liability may arise if, for example, the institution exercises some discretion over how long material is stored or has the power to remove material (as with newsgroups or websites). In defamation law, institutions, who host email discussion groups, may be considered secondary publishers. Although this term does not appear in the legislation, it is commonly used to describe those involved in disseminating a defamatory statement, other than the author, editor and commercial publisher.
The defence of innocent dissemination of a defamation is available to secondary publishers and intermediaries where:
- they are not the author, editor, or publisher of the defamation.
- they did not know and had no reason to believe that the statement in question was defamatory
- they took reasonable care in relation to the publication of the statement in question.
Further, under Section 1(3)(e), of the Defamation Act 1996 an intermediary is not considered to be the author, editor, or publisher of a defamatory statement:
if [the intermediary] is only involved as the operator of or provider of access to a communication system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.
The key thing here is that an institution (or any other intermediary with no knowledge of the defamatory material complained of) will lose the protection of section 1 if it is given notice of the defamatory material and does not delete that material. As a result, any FE or HE institution should treat a notice of complaint seriously and investigate it immediately.
Since July 2002, the requirements of the Electronic Commerce (EC Directive) Regulations 2002, which give effect to the European Electronic Commerce Directive (known as the E-Commerce Directive) must be considered. The Regulations limit the liability of service providers who unwittingly transmit or store unlawful content provided by others in certain circumstances.
Further detailed information on the E-Commerce Directive is available in the document FE/HE Institutions and Liability for Third Party Provided Content by Gavin Sutter on the JISC Legal website at - http://www.jisclegal.ac.uk/ManageContent/ViewDetail/ID/151/FEHE-Institutions-and-Liability-for-Third-Party-Provided-Content-10062003.aspx.