Internet Service Provider Liabilty: Whether ISP liable under defamation(libel) or not.

An ISP does not liable for the libel defamation because naturally or generally they do their duty only what the materials/information have been provided to their service and they doesn’t observing or monitoring all the information that they sending to their user or subscriber. They does doing their job as a courier of the information that have been provided by other party or its subscriber without doing any observation or doing editing to any information that provided to them.

In the case of Smith v California, an ISP is presumed similar like a book shop owners which is not liable for the liability on defamation on libel. The reason is the owner’s of book shop does not know all the contains of information in all of the books in their shop. The owner of a book shop is not a publisher that have the obligation to observe or control all the contains in the all books that they are sell. Similar to an ISP, an ISP is only as a courier or seller of the information provided to them by their subscriber or others internet user. It is a difficulty to the ISP to control or observe all the contain of the information that provided by third party like its subscriber. In the case of Cubby Inc v CompuServe Inc, the court held that CompuServe as an ISP, does not liable for the defamation of libel that have been provided by its subscriber. The court held that CompuServe is similar like a owner of book shop, newspaper seller or a librarian in public library. They does not rationally expect as have all the eyes, observation and energy to control all the contains of all the information that being provided to them.

But, if the ISP promoted their self as a controller and distributor and trying to filter, editing and observing all the messages or information in their websites, they must responsible and liable for the defamation action against them. Their position is same like a publisher that must take control, observe and edit all the messages or information in the book that will be published. In the case of Stratton Oakment v Prodigy Service, the court held that Prodigy as an ISP was liable under defamation because they had promoted their self as a controller provider to their subscribers. Their position is same like a publisher because they try to control all the information and messages that send to their site. But, in USA, the judgment of this case was protested by the section 230 of the USA Telecommunication Act 1996 which provided that the ISP does not liable under defamation even though they try to control all of the unwanted information and messages that comes to their site.

In Zenan v American Online, the court held that an ISPis exclude from the liability of all messages or information that have been provide by third party like subscriber and other internet users. The exception only for the ISP, not for the people that written or spread the information that is absolutely liable for the libel defamation. In Varian Medical System v Delfino , two researcher had found guilty on the act of spreading thousand of defamation messages in the website.

Important to say, if the ISP has realized the defamation information, the must delete the information, if they does not doing that or attempt or make an effort to delete that , the ISP also have the liability of the defamation. In the case of Godfrey v Demon Internet Ltd, the obscene and deflation was realize by the ISP, notice have been given to the ISP to delete the information, but the ISP does not take their action to delete the obscene and defamatory material, and the court held that the Demon has liable.