Scenario in UK

It seems that there is an inherent tension between, on one hand, the ISPs' obligation under section 1(1)(b) to exercise reasonable care and, on the other hand, the requirement, to satisfy section 1(1)(a) that the ISPs only be involved in the publication to the extent set out in section 1(3). Self-regulated or responsible ISPs who put in place procedures to detect and remove defamatory material from their websites or discussion forums may therefore be deprived of the protection of the section 1 defence because they cannot be considered as "only involved" in section 1(3)(c) or (e). If the ISPs do not put in place the procedures, they are still deprived of the section 1 defence because they fail to exercise reasonable care.

In determining for the purposes of Section 1 (1) whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, the Act has defined in section 1(5) what regard shall be had to: (a) the extent of his responsibility for the content of the statement or the decision to publish it; (b) the nature or circumstances of the publication; and (c) the previous conduct or character of the author, editor or publisher.

Depending on the circumstances, plaintiffs defamed by material punished via the Internet may, in addition to civil defamation law, have a number of alternative causes of action open to them in the UK. Some of the most important alternative causes of action include Negligence, Privacy and Data Protection Legislation.

A negligent misstatement occurs where a defendant, who owes a duty of care to the plaintiff, breaches that duty of care by words which cause the plaintiff to suffer reasonably foreseeable, pure economic loss. This alternative cause of action will generally be most attractive in cases where plaintiffs would be deprived of a remedy in defamation law because false material was published of and concerning them without malice, on an occasion of qualified privilege. Although there is no necessary overlap between privacy and reputation, there will be cases in which defamatory material published via the Internet will concurrently amount to be a breach of privacy. That issues of privacy will also be relevant in defamation actions in the UK by reason of the operation of section 12 of the Human Rights Act 1998. The Data Protection Act 19989 ("DPA") regulates the processing of information relating to individuals in the UK. At the heart of the DPA is the protection of the right to privacy. In broad terms, the DPA imposes obligations on "data controllers" in respect of the processing of personal data. ISPs and content providers will generally satisfy the definition of "data controllers" in the DPA. The negligent publication of a misstatement may also give rise to a cause of action which in the UK, is capable of operating concurrently with civil defamation law.