Vol 7 No 1 - Roger Williams University School of Law

publisher of the statement in question,196 it held that the providerwas ineligible for the liability limitation provided by the act.197Since Demon was notified of the defamatory statement and didnothing, the court concluded that the ISP had failed to exercisethe reasonable care required by the Act.198 The court also heldthat Demon, after notification by Godfrey, was in possession ofsufficient information to make the ISP aware that its actions werecontributing to the publication of a defamatory statement.199Because the ISP did not take affirmative action to remove theallegedly defamatory material after Godfrey’s notification, it lostthe liability limitation that the Defamation Act would haveotherwise provided it.200 As a result, the court held Demon liablefor the third-party defamatory statements posted on its service.201Although Godfrey was not decided under the provisionsrecited in the E-Commerce Directive, the Godfrey case is anexample of how strict adherence to a notice and take-downrequirement can result in chilling free speech. As Godfreyillustrates, an ISP under this regime must remove anyproblematic material as soon as it receives notice that theinformation is either defamatory or infringing copyright law toprotect itself from liability. Further, both the Directive andOCILLA recognize liability for ISPs when the provider shouldhave been aware of facts or circumstances making infringementapparent.202 If the reasoning applied in Godfrey is followed, ISPscould be held liable under these provisions for failing to remove196. See id.197. See Godfrey, 1999 WL 477647 at *3.198. See id.199. See id.200. See id. at *7.201. See id. In deciding Godfrey, the court cited the American defamation casesdealing with ISP liability before the CDA, and then distinguished the court’sapplication of the CDA’s complete content immunity for ISPs in Zeran, noting that theBritish Defamation Act “did not adopt this approach or have this purpose.” SeeGodfrey, 1999 WL 477647 at *8. The Godfrey court also distinguished Lunney’scommon law approach to limiting ISP liability by noting that under English commonlaw Prodigy would have been regarded as the publisher of its user’s third party contentrather than a passive conduit. See id. By this discussion, the Godfrey court illustratesthe massive liability that British ISPs faced under common law defamation principles,and how this liability has been significantly softened by recent statutory provisions likethe Defamation Act, which work to create safe harbors for ISPs.202. See 17 U.S.C. § 512 (c), (d) (Supp. IV 1998); Council Directive 2000/31/EC,2000 O.J. (L 178); see also Julia-Barcelo, supra note 11, at 110; Köhler & Burmeister,supra note 159, at 499.