I have been thinking about the consequences of installing network level filtering, as TalkTalk have indicated recently they would do and Claire Perry would like.
“TalkTalk customers get internet porn filter choice”
As I understand current UK defamation law, ISPs have an “innocent disseminator” defence provided in the Defamation Act 1996 .
I found it extremely interesting that mobile phone companies provide over their network access “no effective control” affected by the editorial control (selective blocks, trivially administered). TalkTalk ISP, and (by extension) all network providers according to Claire Perry’s should move toward an OPT-IN and a suggestion of mandatory network filtering.Could it, in theory, become possible to sue an ISP for not blocking access to material originating outside of UK jurisdiction? What would happen if a court was asked to issue an injunction to filter for defamation or a privacy breach? Could TalkTalk be compelled to block material?
For section1 (secondary responsibility defence) under the Defamation Act one needs to show reasonable care so that, in theory, the repeat defamation situation case that would not be met. For an interesting case, see the dicussion in McGrath v Dawkins  EWHC B3 (QB). At present common law innocent dissemination survives –however see Metropolitan Schools.
The Ecommerce directive prevents any general obligation to monitor. See the cases of Case C-70/10 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM) . There is also a firm rule against prior restraint of defamation –so that not even the courts by court order will restrain defamation pre-publication (as opposed to privacy) –to avoid the courts acting as censor. It would be an unlawful restraint on speech/expression and so engage Art 10.
its an interesting question and I am not entirely sure what the correct answer is.Two points: (1) the High Courts power to issue an injunction is very wide Take a look at s37 of the Senior Courts Act 1981 here…
(2) Secondly, however, an ISP is not themselves liable as a publisher of material which passes over their wires. The BPI thought that would mean they could not obtain an injunction under the SCA against ISP’s to block copyright content, which is why they lobbied hard for s97A of the CDPA 1988 and even then they were nervous of proceeding any further. In the event s97A has proved quite powerful enough.
As you know, there are 4 main types of case where the court will refuse an interim injunction to restrain publication. The Solicitors from Hell case was one in which Bonnard didn’t apply because the defendant did not indicate an intention to plead justification would a decision at hearing turn upon questions of the general character of the claimant, but I failed to communicate that was what I was talking about.
I suspect there’ll be an increasing opportunity for cases where neither Bonnard v Perryman nor any of the other situations (such an intention to plead honest comment or where a communication is prima facie privileged) apply. There’ll also be situations – such as election comments – where I can see people finding it attractive to obtain an injunction, but the rule against prior restraint is superseded by statute. I n those sorts of situations where a court will make an order, do will it make an order against an ISP using filtering technologies? I cannot think of any situations where that has happened or something analogous has happened?
More generally some information about orders to block directed at ISP’s outside s97A:
In modern practice the rule against prior restraint applies whenever a defendant has a defence –not just when that defence is Truth. The rule was affirmed in Green v Associated  EWCA Civ 1462. There is also now a significant body of human rights jurisprudence to support the rule. Eady had questioned whether the rule was compatable with the new convention jurisprudence and the test for balancing Art 8 (reputation and privacy) and Art 10 (freedom of expression) which gives no precedence to either Article as applied in privacy cases (see Campbell and Re S) in Sunderland Housing v Barnes –but the rule has held except where as in the Solicitors from Hell case the defendant has evidenced an intention to repeat. The rule is good law and not under attack.