In the recent case Kaschke v Gray & Hilton, the courts have again looked at the question of how far blogs can benefit from hosting defences.
An editor of a blogging website was prosecuted for displaying defamatory comments. That post was deleted by the editor when its subject brought it to his awareness. The editor applied for summary judgement (to have the case thrown out before trial) on the ground that he had a defence to prosecution. He argued that as an Information Society Service (“ISS”) provider he could rely on the Electronic Commerce Regulations 2002 in that he was merely storing information. Under regulation 19, an ISS provider can escape liability if he is unaware of the unlawful activity or if he acts expeditiously to tackle unlawful activity. The question in issue was what amount of control must a host exercise before they go beyond the act of the mere storage of information. Further, it was questioned whether an individual post, rather than the website as a whole, could be seen as an ISS.
In this case, the editor could promote, store, delete and edit user generated content. This demonstrates that he exercised some editorial control and so could potentially be seen as going beyond mere storage of information. In practise, he very rarely exercised any control over the website. He was unaware of the post in question and did not have any editorial control over it other that by its removal as soon as the post came to his attention. The only way that the editor could fall within the defence was if a single post could be classed as an ISS, in which case the editor would merely have been storing information. The judge ruled favourably for the editor in deciding that a single post could be an ISS. This being said, summary judgement was refused, as there was a realistic possibility that in the witness box, the editor may reveal more information that may show that he exercised more control over each post and thus fell outside the defence.