P sued D1 for posting defamatory messages about him on D2’s website. D2 applied to have the claim against them struck out and CA allowed the application. To be liable for a defamatory publication a defendant must be knowingly involved in the process of publication of the relevant words, and it was not enough that the defendant merely played a passive instrumental role in the process and an ISP who performed only a passive role could not be deemed a publisher.
Eady J: This is distinct from Godfrey as in that case the ISP had actively chosen to receive and store the newsgroup exchanges containing the posting and it chose not to remove the posting once it knew of its defamatory content (surely this is still passive: choosing not to do something is not “active” in common parlance). “In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant's knowledge can be an important factor” However defamation can occur without actual awareness.