In considering the above case, the judge clarified the following:

1) Was the defendant a “service provider”, as defined in Regulation 19?

The judge first considered whether a host could still be considered a mere “storer” of the allegedly unlawful content, even if he was also active in moderating or monitoring other content. He noted that, the Regulation 19 defence applied and that the defence did not necessarily become unavailable merely, because the ISP also engaged in activities which fell outside the defence (because they constituted more than mere storage of information).

The judge also considered the case of Imran Kamir v Newsquest Media Group Limited, in which a libel claim had been made against an online publisher responsible for multiple titles and websites and the defendant publisher had successfully applied for summary judgment to dismiss that, the part of the claim which related to user-generated comments. Thus, the judge’s accepting that, the publisher qualified as a service provider for the purposes of Regulation 19, even though it had also actively participated in the publication of non-user-generated, allegedly defamatory, content.

The judge then concluded that, the inclusion on a website of content written or proactively chosen by the operator, alongside unmoderated user-generated content, did not necessarily preclude the operator from relying on the Regulation 19 defence.

2) The judge also considered whether the “storage” referred to in Regulation 19 meant storage of the allegedly defamatory material or storage of all user-generated content on the website.

If it referred to the entirety of such content, then it was possible to conclude that, Mr. B was not merely “storing” the blog in question, as he had in the past intervened in some of the other postings on the site by editing or removing them.

The judge reaffirmed the principle that, protection should not be withheld merely, because a defendant who would otherwise qualify for protection also provides a different service, which does not qualify for it. He also noted that, this conclusion was consistent with the language of Article 14 of the E-Commerce Directive, on which Regulation 19 was based.

He therefore ruled that, a court would only have to take into account the specific blog posting complained of, when determining whether Mr. B could potentially have a defence under Regulation 19.

3) Did Mr. B have actual knowledge of unlawful activity or information?

The requisite knowledge had to have been had at a time, when publication was occurring.

Mr. B’s evidence was that, he was unaware of the content of the post at the time of its publication. The claimant alleged that, Mr. B must have known about it from late June, when her lawyers sent him a letter of complaint (which he denied receiving); in any event her claim did not allege that, the blog post on the site had been published to any person between 21 June and 7 August, when he removed the post from his website, following receipt of an email from the claimant.

The judge considered that, in those circumstances, there was no realistic prospect of the claimant being able to show that, Mr. B had actual knowledge of the unlawful activity or information at any material time.

4) Constructive knowledge of blog post

Did Mr. B have constructive knowledge of blog post and that it was unlawful?

5) Expeditious removal of blog post

Mr. B acted expeditiously to remove or disable access to the post, once he became aware of it.

6) Authority or control over person, who made post

Assuming that, Mr. B was a “service provider” for the purposes of Regulation 19, had no actual or deemed knowledge of the defamatory post and had acted expeditiously to remove it, was Mr. A acting under Mr. B’s authority or control, when he posted the statements? Unfortunately the judge did not address this point.

1) The court will look solely at the material complained of and not at the entirety of the material, made accessible by the defendant ISP;

2) ISPs in order to optimise their chances of having a Regulation 19 defence to liability, in relation to any particular piece of content, should refrain from monitoring or moderating that content and should take material down, as soon as they receive a complaint about it (possibly while they assess whether the complaint is justified).

3) Consequently, ISPs and other website providers must ensure that, they address the above in their terms and conditions and usage policies with their users.