The defence, sometimes also known as "mechanical distributor", is of concern to Internet Service Providers because of their potential liability for defamatory material posted by their subscribers.
His Lordship held that the defendant library was liable for having negligently overlooked the publisher's request for return of the offending book.
[6] This has been criticized as "illogical" and has been explained as an exception that made sense in the days of primitive technology only – when printers used to read what they print, which is no longer the case.
Newton's statements of defence alleged he was an innocent disseminator as he did not see or authorize the posting before it occurred and removed it in good faith upon receipt of Hemming's complaint.
The judge held that Newton had pleaded sufficient facts to enable Hemming to know why he contends he was an innocent disseminator, and refused to strike out the defence.
However, the Act made clear that the defence is not available to the author, editor or commercial publisher of the defamatory material.
Morland J considered Byrne v Deane,[11] in which the defendant failed to remove a defamatory notice placed on a board in its premise (a golf club).
In Byrne, Greene LJ rejected the proposition that publication cannot be constituted by the refraining from doing some act, and identified the test as: [H]aving regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?Morland J then held that whenever a defamatory posting is transmitted from the defendants' news server, the defendants should be regarded as having published that posting to customers who accessed the newsgroup containing that posting.
If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue.
It is not enough that a person merely plays a passive instrumental role in the process...Eady J went on to distinguish Godfrey as a case of continued publication of the same defamatory statements after receipt of the plaintiff's request of removal.
[13] The position of online service providers was considered in Hong Kong in Oriental Press Group Ltd and Another v Fevaworks Solutions Limited.
His Lordship held that ISPs are only publishers when they become aware of the defamatory content of any posting and choose not to remove it from their server.
The judge also remarked that the inconsistent application of a lower standard of liability to an electronic news distributor than that applied to a public library, book store, or newsstand would impose an undue burden on the free flow of information.
The judge also identified the appropriate standard of liability is whether CompuServe knew or had reason to know of the allegedly defamatory Rumorville statements.