Kaschke v Gray & Anor

For the hosting exemption under Electronic Commerce (EC Directive) Regulations 2002, the relevant service is assessed by reference to the particular information said to give rise to liability. The question is whether hosting that information consists only of storage. A website operator’s editorial involvement elsewhere on the website does not by itself defeat the exemption for a particular user-generated posting. However, evidence of wider editorial activity may be relevant if it supports an inference that the operator intervened in the particular posting. The operator bears the burden of establishing the exemption. Summary judgment is inappropriate where a realistic trial issue remains about whether the particular posting was merely stored.

The claimant brought libel proceedings concerning a blog posted by the first defendant on a website controlled and operated by the second defendant. The second defendant applied for summary judgment under CPR Part 24, relying on section 1 of the Defamation Act 1996 and regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002. The Master refused the application. The appeal concerned only regulation 19.

The central issues were whether the second defendant’s service, assessed by reference to the particular blog, consisted only of storage, and whether the remaining conditions of regulation 19 could be established summarily.

1. Appeal dismissed. The claim was not suitable for strike-out or summary judgment because there was a realistic prospect that the regulation 19 defence would fail at trial.
2. The defendant was providing an information society service within regulation 2(1). The relevant question was not whether the website or homepage as a whole involved more than storage. It was whether the service provided in respect of the particular blog containing the allegedly defamatory words consisted only of storing that information.
3. A website operator’s editorial control over the homepage, other material, or other blog posts did not automatically prevent regulation 19 protection for a particular user-generated posting. Such evidence could nevertheless be considered if it supported an inference that the operator edited, amended or otherwise intervened in the posting in issue.
4. On the defendant’s evidence, the hosting of the particular blog might have consisted merely of storage. But the claimant had a realistic prospect of challenging that evidence at trial, including by cross-examination and reliance on the defendant’s admitted interventions in other content. The burden of proving the defence lay on the defendant.
5. The court did not need finally to determine the knowledge, expeditious-removal or authority-and-control conditions. It observed that regulation 19(a)(i) requires proof both of absence of actual knowledge of unlawful activity or information and of absence of awareness of facts or circumstances making unlawfulness apparent. The later complaint letter could not establish knowledge at the time of the April publications, although the court considered that the claimant had a realistic prospect of proving that the letter had earlier come to the defendant’s attention.
6. The court also considered that regulation 19(b) concerns whether the recipient of the service acted under the provider’s authority or control, distinct from the prior question whether the provider’s service went beyond mere storage.
7. The summary judgment jurisdiction must not become a mini-trial. An issue requiring investigation at trial should not be summarily determined.

Accordingly, the Master’s reasoning was partly different, but the refusal of summary judgment was upheld.

1. High Court (Queen’s Bench Division): Master Rose refused the second defendant’s application for summary judgment on 29 May 2009. Permission to appeal on the regulation 19 issue was granted by Eady J on 29 July 2009.
2. High Court (Queen’s Bench Division): Stadlen J dismissed the appeal and held that the claim should proceed to trial.