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Andrew Scott

Whether online intermediaries should be liable in respect of defamatory material authored by others has become a pressing issue in jurisdictions around the world. In English law, analogies with traditional publishing contexts have seen liability extended through an expansionist conception of ‘publication’. While this tendency proffers easy access to redress for those aggrieved by online publication, it carries with it potentially profound impacts on free speech and the socio-political potential of the internet. Intermediaries have been induced to act as censors, taking down content irrespective of its accuracy or importance. In response, courts and policy makers have been forced to devise a complicated array of mitigating defences and jurisdictional exclusions for intermediaries. This process can be seen as the haphazard crafting of an unwholesome legal layer cake. The complexity of the area has been exacerbated by the advent of data protection law that is applicable to the same questions. This chapter suggests that the expansion of the concept of publication beyond primary authors, editors and publishers has been a profound misstep in the development of the law. Absent a broad conception of publication, defamation law might easily offer alternative means by which aggrieved parties could secure adequate redress. The alternative means proposed would not extend liability to intermediaries and therefore would not place such persons in the role of censor. Moreover, the existing regime may already have become superfluous in the context of the expanding remit of data protection law. Effective rules in the defamation context, however, might avoid the field being ceded entirely to this new legal technology which currently offers only blunt and inadequate means of balancing the individual and social interests in reputation and free speech. Keywords: defamation; data protection; intermediaries; freedom of speech; reputation; internet

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Scott Grinsell and Andrew Klaber