Adoko v Freeserve.Com.Plc

An internet service provider may enforce a contractual condition prohibiting material which is defamatory or which, in its judgment, causes annoyance, inconvenience or anxiety. Such a condition was neither an exemption nor a limitation clause and was not shown to be unfair.

A duty to report suspected crime does not confer a right to publish allegations of crime. Where no Convention right has been breached, proportionality does not arise. A person who is not a contracting party has no contractual cause of action concerning the provider’s exercise of the condition.

The applicant sought permission to appeal against Gray J’s order of 25 January 2002 striking out his claim against an internet service provider.

The provider had suspended a website after receiving a complaint that material linked from it was seriously defamatory of a solicitor who held part-time judicial office. The applicant alleged breaches of Convention rights and domestic legislation, and sought damages and declarations.

Gray J held that the claim was unarguable and had no reasonable prospect of success. The central issue was whether the proposed appeal had a real prospect of success.

1. Permission to appeal was refused. Mummery LJ held that the proposed appeal against the striking-out order had no real prospect of success.

2. The service conditions entitled the provider to suspend access. The applicant accepted that the service was subject to those conditions. The condition prohibiting defamatory material, or material which in the provider’s judgment caused annoyance, inconvenience or anxiety, was a legitimate operational condition. It was not an exemption, limitation, unfair, or deemed unfair term. Given the complaint of serious defamation, the provider was entitled to judge that the material caused annoyance, inconvenience or anxiety to its subject and to suspend the website.

3. Any duty under the Criminal Law Act 1967 to report a suspected criminal offence did not give the applicant a right to publish allegations of that offence. An asserted admission that the website alleged criminal offences was not an admission that the allegations were true.

4. There was no breach of Articles 6, 10, 14, 17 or 18 of the Convention. The proportionality argument could arise only if a Convention right had been breached. The court agreed with Gray J’s conclusion that none of the rights relied upon in the particulars of claim had been breached.

5. The applicant also had no contractual cause of action. He operated in association with persons who were or might be the contracting parties, rather than being shown to be a party to the contract himself. Mummery LJ therefore agreed with the judgment below.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 869, Mummery LJ refused permission to appeal because the proposed appeal had no real prospect of success.
• High Court, Queen’s Bench Division: Gray J struck out the claim on 25 January 2002, dismissed it, and refused permission to appeal.