Concurso de Piano de Linares “Marisa Montiel”

Mere conduit and caching intermediaries, where information and communication happened en route through or were temporarily stored on their system will more than likely be able to avail themselves to the Section 1 defence of the Defamation Act 1996542.

As with the Section 1 defence, regulation 19 will not protect intermediaries who host material from liability when they have been made aware of alleged defamatory material being stored on their systems.

A fundamental difference between Regulation 19 and the Section 1 defence is that an ISP will not be held liable for material that they remove expeditiously on obtaining actual knowledge of its defamatory content. This is unlike the Section 1 defence of the Defamation Act 1996, where the defence is unavailable once the ISP has been made aware of the content543. Therefore, an ISP will only be able to avail themselves

to the mere conduit defence if they (a) did not initiate the transmission, (b) were not involved in the selection of recipients and (c) did not select or modify the information that was transmitted. If the ISP can prove they had no involvement they will have then demonstrated that they were merely providing a conduit through which the information has been sent544.

The interaction between the two laws was tested in Bunt v Tilley545, in which three ISPs were claimed to be responsible for ‘providing access’ to defamatory material. The claim was struck out of court as the material was only communicated over their service and that the delivery of the material in such a manner is similar to that of the postal service.

4.4.3 Human Rights Act 1998

UK defamation law is currently being influenced by the HRA. Evidence of this is demonstrated by the reduction of damages awarded since its transposition into UK law. It is now common for Article 10546 to be recited in a defamation case, which is something that English judges are fond of saying, is no different to common law because freedom of expression has always been acknowledged. Under common law, the protection of reputation is the primary right, in comparison to the HRA, which regards freedom of expression as a fundamental part of democratic society547. Section 12 of the HRA requires UK courts to regard Article 10, which considers the right to freedom of expression. This right may be affected by the awarding of damages, if the awarded amount is disproportionate to the aim of Article 10(2), to compensate the

claimant for damaged reputation548. The court must also consider Article 10 where material:

‘Is journalistic, literary, or artistic in nature, to the extent to which the material has or is about to become available to the public, the public interest in the publication of the material, and any relevant privacy code’549.

The HRA requires member states to ensure that defamation law and practice does not become unfavourable towards the defendant. Underpinning Article 10 is the concern of a ‘chilling effect’, where the publishing of material is deterred by the threat of a libel suit550. Although restrictions on freedom of expression are legitimate, the measure of the restrictions is the fundamental question. This question is for the court to decide under The European Court’s guidance551.

Freedom of Expression has long been held to be the cornerstone of a democratic society and one of the first human rights to be guaranteed in law. The Internet exposes this right to freedom of expression at the expense of other rights and freedoms. The ease of which information can be accessed and created on the Internet creates a conflict between freedom of expression and individual rights552. Furthermore, the laws that seek to regulate these conflicts can also threaten freedom of expression.

It is important, despite the application of different state laws that freedom of expression does not diminish. Wimmer553 quotes Emerson who states that freedom of expression ‘has long been seen as necessary condition for effective civil society’554

and Wolfenson who comments that ‘free expression is essential for building working economies and stable societies’555. Evidence of Wolfenson’s comments can be observed by comparing the long-term and stable democracies in Europe, USA and Canada who support free speech, in comparison to the stability of countries like North Korea, Cuba and Zimbabwe who limit freedom of speech556 and who have in the past controlled this freedom by using force. Although not to this extreme, Britain’s libel laws and the restricting of information on grounds for national security are some of the toughest in the world. Consequently, this can inhibit freedom of expression557.

Taking a more philosophical view on human rights, Haas comments that Governments have ethical responsibilities to individuals and must respect that people have rights558. Quoting Mill:

‘The need for a free society takes precedence over majority preferences, that a multiplicity of opinions is necessary so that truth can be determined in a marketplace of ideas’559.

Furthermore, freedom of speech is more important than the prerogatives of the majority as an error can only be corrected if freedom of expression is maintained560.

However, the exercising of the right to freely express one’s self carries with it special responsibilities, including respecting the rights of others. If a person does not respect their responsibilities then they may be breaking the law and face the consequences that accompany the offence561. Nothing highlights this more than the dissemination of illegal information and material such as child pornography. However, groups that

operated outside of the Internet before its introduction now have new avenue or tool for subversion. Groups such as neo-Nazis or white supremacists are now able to target social groups who use the Internet562.

This section has highlighted the importance of the Human Rights Act and in particular the right to freedom of expression. Furthermore, it has observed the importance of regulation. However, it is the balance between the right to freedom of expression and the regulation of expression that can prove to be the most difficult form of stability to ascertain.

Article 10: Freedom of Expression and Section 12 of the HRA can be found in Appendix E.