Kaschke v Gray & Anor

This appeal raises important questions relating to Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (S.I 2002 No 2013). (“The Regulations”). It is an appeal by Mr Hilton, the second defendant against the refusal by Master Rose on 29 May 2009 of his application for summary judgment under CPR Part 24 against the claimant Ms Kaschke striking out her claim against him for damages for libel. The claim relates to an alleged defamatory blog post which was placed on 9 April 2007 on a webpage made available on a website called Labourhome.org which was controlled and operated by Mr Hilton. The author of the allegedly defamatory blog is alleged to have been Mr Gray the first defendant, who is also alleged to have placed it on the webpage.

Mr Hilton raised separate defences under section 1 of the Defamation Act 1996 and Regulation 19 of The Regulations. By his application for summary judgment under Part 24 he asserted that Ms. Kaschke had no realistic prospect of defeating either of those two defences. Master Rose found against him on both points and refused permission to appeal. Permission to appeal was granted by Eady J on 29 July 2009. No appeal is maintained in respect of the section 1 defence. The appeal before me is confined to the master’s findings on the Regulation 19 point.

The brief details of the claim as against Mr Hilton endorsed on the claim form issued on 10 March 2008 as subsequently amended allege that: “Mr Alex Hilton published on 9 April 2007 his web blog on http://www.labourhome.org/story/2007 /4/9/91351/13299 “Baader-Meinhof” losing candidate…”

As against Mr Hilton the Particulars of Claim amended as at 14 July 2008 alleged as follows:

“Defendant 2 published on his LabourHome blog site on http://www.labourhome.org/story/2007/4/9/91351/13299 on 9 April 2007 a blog, which contained the following libels:

(1)

Title “Baader-Meinhof losing candidate joins diss-Respect”,

(2)

The text of the article, firstly at Paragraph 1:

“Former Baader-Meinhof suspect Johanna Kaschke, who was one of the sixty four candidates hoping to be nominated as the next Labour Party MP for Bethnal Green and Bow has resigned to join diss-Respect/SWP”

(3)

The text of the article, secondly at Paragraph 2:

‘However, this being TowerHamlets the story developed. Dave Osler Blog “Ex-Punk, Ex-Trot. Unchanged attitude problem” (definitely not a New Labour Supporter) picked up that Johanna was also a former Baader-Meinhof (Also known as the (“Red Army Faction”) suspect who was detained for three months on suspicion of being involved in terrorist activities. Baader-Meinhof was a particularly nasty Left wing terrorist gang who murdered many people in Germany mainly during the 1970’s (and up to late 1990’s). They were found to be partly funded and supported by the communist East German secret police, the Stasi.’

(4)

The text of the article, thirdly at Paragraph 3:

‘Johanna is quite open about this (and other things) on her website. It would appear that she was released without charge and that she was given compensation by the German Government for wrongful imprisonment. However, she does give the impression that she was involved in fund raising activities for the terrorists although this is unclear. To be fair, she is now firmly and openly against terrorism.’

It was then alleged that:

“In both the Gray (Defendant 1) and the Hilton (Defendant 2) blogs

Paragraph 1 is libel because the Claimant was not, never has been a member of a terrorist group and she was never a sympathiser and she was not connected in any way to any type of terrorists, terrorism or terrorist activity, the Baader-Meinhof group, the Red Army faction. This libel is not protected by justification, as it is untrue, or privilege or qualified privilege, as it is not in the public interest to publish untruths.

Further the blog contained in red letters as paragraph divider very vividly the Baader-Mainhof word several times.

In both the Gray (Defendant 1) and the Hilton (Defendant 2) blogs

Paragraph 2 is a libel for the same reasons, the Claimant was never directly accused of being a member of the Baader-Meinhof group or the Red Army Faction.

In both the Gray (Defendant 1) and the Hilton (Defendant 2 blogs) are multiple libels, the claimant was never accused of being involved in terrorist activities, she was detained initially without a warrant, when a warrant was produced on the second day of her arrest it contained the possibility that she was seen near a depot that contained items which could be used possibly for criminal or terrorist activities.

However her alleged ownership or use of the depot was never proven and neither was her alleged ownership of the said articles within. A list of which can be seen on the translated arrest warrant. In any case the German State prosecutor paid substantial compensation to the Claimant for false arrest, false imprisonment and loss of benefits and costs with a compensation award issued on 16 March 1978.

The Claimant never raised any money for a terrorist group but organised a concert for an organisation, which helps prisoners who are victims of state persecution, similar to Amnesty International and this group is completely legal and has a website at http://www.rote-hilfe.de whereby the claimant was merely responsible for getting the music groups together. The Claimant never has done any work for the Rote or Schwarze Hilfe and never was a member of either organisation.

The effect of the Hilton libel was that his blog is officially endorsed by the Labour Party and is linked to from the official Labour Party website at: http://www.labour.org.uk/home with a legal statement reminding all bloggers that they will be made liable by the Labour Party if they publish libel on the blog site. The fact that this libel was displayed for a considerable time made the visitors belief that the Labour Party endorsed this libel. The claimant became aware of the libel only in the beginning of June 2007.

The Hilton libel repeating the same statements as the Gray libel cements the view in the eyes of the reader that the Claimant is connected with terrorism or Baader-Meinhof, and/or the Red Army Faction in particular.

The Hilton blog was adorned with red Baader-Meinhof dividers between each comment and the mention of the David Osler Blog, Dave’s Part invited visitors of the Hilton blog on LabourHome to visit this blog and find those articles as describe here:”

Particulars are then pleaded of the alleged David Osler blog. And the claim then continues:

“The fact that there is nothing about the claimant that speaks about other things about her person cements the firm view into readers mind that the claimant is connected to terrorism and potentially very dangerous and that she probably hasn’t been found out yet by the security services.

Both the John Gray and Alex Hilton blog in Paragraph 2 speak about the atrocities that Baader-Meinhof carried out and even creates a connection to the East German secret service implying also that the Claimant may be connected to the former Communist regime in East Germany. That is then cemented by the statement in Paragraph 4 that the Claimant is now firmly and openly against terrorism implicating that she has not always been against terrorism, which is completely untrue.

So since the 8 April and respectively the 9 April both the defendant 1 Mr Gray and Defendant 2 Hilton have spread the rumour that the Claimant is connected to terrorism in one form or another or has in the past sympathised with it as this is the innuendo and hidden meaning of the remarks made about her. These are not libels protected by justification or privilege or qualified privilege, as they are untrue, as it is not in the public interest to publish untruths.”

In his defence dated 23 September 2008 Mr Hilton admitted that on 9 April 2007 a poster with the user name Grayee posted the article complained of on the LabourHome website. He denied writing the words complained of or any part of them and asserted that he did not participate in any way in their publication beyond being the person who ultimately controlled the website. He made no decision to publish the words complained of beyond making a service available on the website that allowed any user of the internet to post material on it. He averred that all content on the website is created and posted by visitors to it. It is not proactively moderated (or closely monitored) by him or anyone else. If complaints are made about any of the content of the website he will consider the offending post and take whatever action he considers appropriate. He admitted that the website is controlled and operated by him and averred that it is a weblog run by him on a voluntary basis to allow users of the internet to obtain information and exchange views about the Labour Party and associated interest areas. The website was described on its “About” section as follows: “LabourHome is a popular political collaborative multi blog specialising in British politics started by Alex Hilton and Jag Singh. Launched in June 2006 with the tagline “Back to the roots” the site targets supporters of the Labour Party, attempting to reinvigorate the party’s base and grass roots. LabourHome is not in any way financed or controlled by the Labour Party.”

Mr Hilton denied that the words complained of bore the meanings alleged or any meaning defamatory of Ms Kaschke. He did not admit that the words complained of have been published to people within the jurisdiction of the Court. He admitted that a letter of complaint dated 21 June 2007 was sent on behalf on Ms Kaschke to him to Hilton and Hilton Limited, room 202, 23-28 Penn Street, London, N15 DL but averred that the letter was not received by him because it was sent to the wrong address for Hilton and Hilton Limited. It was sent in the post rather than via the contact details provided on the website: support@LabourHome.org.

He averred that on 7 August 2007 Ms Kaschke emailed him to complain that she had not received a response to her complaint letter. He averred that that was the first time that he became aware of her complaint. Before then he had not even read the words complained of. Following receipt of the email he averred that on the same day he removed the words complained of from the website. He offered her a right of reply on the Website which offer was not taken up.

In the premises he admitted that the words complained of were published on the website controlled by him from their original posting by Grayee on 9 April 2007 until they were removed by him on 7 August 2007. (the pleading pleads that they were removed by Ms Kaschke but I take that to be an unintentional error). This admission appears to be at odds with the plea that : “The Claimant must show that the words complained of have been published to people within the jurisdiction of the Court. The second Defendant makes no admissions as to publication” unless the latter was intended to be confined to a non admission that the article was published to people within the jurisdiction of the Court.

Mr Hilton’s defence then pleaded a defence under section 1 of the Defamation Act 1996 in the following terms:

“However, if and insofar as the words complained of bore any meaning that is found to be defamatory of the Claimant and the Claimant shows that these words have been published to anyone during this period, then the Second Defendant has a completed defence to the Claimant’s claim under s.1 Defamation Act 1996.

PARTICULARS

The Second Defendant was not the author, editor or publisher of the words complained of as defined in s.1(2) Defamation Act 1996

The Second Defendant took reasonable care in relation to the operation of the Website and the publication of the words complained of. The Second Defendant was only involved in the publication of the words complained of either as someone who operated the Website, being a service by means of which the words complained of were made available in electronic form, or as the operator of and/or provider of access to a communications system by which the words complained of was transmitted or made available on the Internet. The Second Defendant had no effective control over the person who posted the words complained of and as soon as he became aware that the Claimant had a complaint about the posting on the Website, the Second Defendant removed the posting and offered the Claimant a right of reply; an offer she did not take up.”

No defence based on Regulation 19 was pleaded.

On 4 February 2009 Mr Hilton applied for summary judgment under Part 24 against Ms Kaschke on the whole claim on the ground that the claim has no real prospect of success because he has complete and independent defences under section 1 of the Defamation Act 1996 and Regulation 19. Mr Hilton relied on a witness statement of his dated 3 February 2009. There followed a flurry of witness statements responding to each other from Ms Kaschke and Mr Hilton.

Following a hearing on 7 May 2009 Master Rose on 29 May 2009, for reasons set out in a reserved judgment handed down that day, refused Mr Hilton’s summary judgment application. He held in effect that there was a realistic prospect that neither the section 1 nor the Regulation 19 defence would succeed at trial. Master Rose refused permission to appeal. Permission to appeal in relation to the Regulation 19 point only was subsequently sought by Mr Hilton and granted by Eady J the grounds of appeal are set out in an Appellant’s Notice dated 19 June 2009.

In parallel with the claim for summary judgment, the appeal against the refusal of which is before me, Mr Hilton (and also the first defendant John Gray) applied to strike out the claim for failure to comply with the requirement in paragraph 2.3 of the Practice Direction to Part 53 to specify the defamatory meaning or meanings alleged and orders by Master Rose dated 9 July 2008 and 27 January 2009 requiring Ms Kaschke to comply with paragraph 2.3. Mr Hilton’s application was issued on 12 March 2009, Mr Gray’s on 13 March 2009.

On 5 March 2009 Ms Kaschke appealed against Master Rose’s order of 27 January 2009 and on 20 March 2009 Master Rose directed that Mr Hilton’s application to strike out should be stayed pending determination of Ms Kaschke’s appeal or further order. However he directed that Mr Hilton’s application for summary judgment should remain listed for hearing on 7 May 2009, indicating in his reserved judgment dated 29 May 2009 that in his view Mr Hilton’s strike out application did not affect the proper determination of his application for summary judgment.

On 11 September 2009 Ms Kaschke’s application for permission to appeal was dismissed and on 17 December 2009 I was informed that Master Rose had on 14 March 2009 at a restored hearing of the defendant’s strike out applications, ordered that Ms Kaschke’s case on meaning in accordance with Practice Direction 53 paragraph 2.3 be limited in the case of her claim against each defendant to the following meaning, namely “that the claimant was once suspected by west German authorities to be a member of Baader-Meinoff the terrorist group that carried out bombings, robberies and murders. He further ordered that Ms Kaschke be treated as having pleaded that meaning against each defendant and that each defendant file and serve an amended defence in response to such meaning by 18 January 2010 and that by 8 February 2010 Ms Kaschke file replies to such amended defences. On 19 January 2010 Mr Hilton served an amended defence, in which among other things it was pleaded that Mr Hilton has a complete defence to the claim under the Regulations. It was also admitted that the words complained of were hosted on the website controlled by Mr Hilton from their original posting by grayee on 9 April 2007 until they were removed by Ms Kaschke on 7 August 2007. On 31 January 2010 Ms Kaschke served a reply to Mr Hilton’s amended defence. Copies of these pleadings were forwarded to me.

Yet a third application to stop the claim was issued by Mr Hilton on 2 June 2009 in the form of an application to strike out the claim because it failed to plead any publication. On 14 December 2009 Master Rose refused the application and refused permission to appeal against his refusal.

The Electronic Commerce (EC Directive) Regulations 2002 are derived from EC Directive 2000/31/EC (“The E-Commerce Directive”). Regulations 17, 18 and 19, which exclude liability in certain circumstances resulting from respectively mere conduit, caching and hosting reflect Articles 12, 13 and 14 respectively of the E-Commerce Directive.

“Information society services” is defined in the Regulations as having the meaning set out in Article 2(a) of the E-Commerce Directive, as summarised in recital 17 thereof. See section 2(1):

“information society services (which is summarised in recital 17 of the Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”) has the meaning set out in Article 2(a) of the Directive, (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations[5], as amended by Directive 98/48/EC 20 July 1998[6]”

Article 1(2) of Directive 98/34 EC defines information society service as “any service normally provided for remuneration at a distance by electronic means and at the individual request of a recipient of services.”

The following definitions in Article 2 of the E-Commerce Directive are relevant:

“For the purpose of the Directive, the following terms shall bear the following meaning:

(a)

‘information society service’: services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC;

(b)

‘service provider’: any natural or legal person providing an information society service;…

(d)

‘recipient of the service’: any natural or legal person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible…”

Regulations 17, 18 and 19 and 22 and 6(1)(c) provide as follows:

“Mere conduit

17 – (1) Where an information society service is provided which consists of the transmission in a communication network of information provided by a recipient of the service or the provision of access to a communication network, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that transmission where the service provider –

(a)

did not initiate the transmissions;

(b)

did not select the receiver of the transmissions; and

(c)

did not select or modify the information contained in the transmissions.

(2)

The acts of transmission and of provision of access referred to in paragraph (1) include the automatic, intermediate and transient storage of the information transmitted where:

(a)

this takes place for the sole purpose of carrying out the transmission in the communication network, and

(b)

the information is not stored of any period longer than is reasonably necessary for the transmission.

Caching

18.

Where an information society service is provided which consists of the transmission in a communication network of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that transmission where –

(a)

the information is the subject of automatic, intermediate and temporary storage where the storage is for the sole purpose of making m ore efficient onward transmission of the information to the other recipients of the service upon their request, and

(b)

the service provider –

(i)

does not modify the information;

(ii)

complies with conditions on access to the information;

(iii)

complies with any rules regarding the updating of the information, specified in a manner widely recognised and used by industry;

(iv)

does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and

(v)

acts expeditiously to remove or disable access to the information he has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.

Hosting

19.

Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where –

(a)

the service provider –

(i)

does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or

(ii)

upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information and,

(b)

the recipient of the service was not acting under the authority or the control of the service provider…

Notice for the purposes of actual knowledge

22.

In determining whether a service provider has actual knowledge for the purposes of regulation 18(b)(v) and 19(a)(i), a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, among other things, shall have regard to –

(a)

whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c), and

(b)

the extent to which any notice includes –

(i)

the full name and address of the sender of the notice;

(ii)

details of the location of the information in question; and

(iii)

details of the unlawful nature of the activity or information in question.

6 – (1) A Person providing an information society service shall make available to the recipient of the service and any relevant enforcement authority, in a form and manner which is easily, directly and permanently accessible, the following information…

(c)

the details of the service provider, including his electronic mail address, which make it possible to contact him rapidly and communicate with him in a direct and effective manner.”

Regulations 17, 18 and 19 reflect Articles 12, 13 and 14 respectively of the E-Commerce Directive. Article 15 of the E-Commerce Directive prohibits the imposition by member states of a general obligation on providers of services covered by Articles 12, 13 and 14 to monitor the information which they transmit or store and a general obligation actively to seek facts or circumstances indicting illegal activity. Article 15 is in these terms:

“No general obligation to monitor

1.

Member States shall not imposes a general obligation on providers, when providing the services covered by Article 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

2.

Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreement.”

It appears that at the opening of his submissions in front of the master Mr Harris, Mr Hilton’s solicitor who appeared for him in front of the master and in front of me, submitted that there was a deficiency of pleading in the particulars of claim as to publication and in particular to whom the words were published. The master did not consider it right to determine the application for summary judgment on that point for two reasons: first that the point is not taken in the application notice and second that Mr Hilton accepted for the purposes of the application only that there was publication of the material complained of. The master referred to an extract of Mr Hilton’s second witness statement dated 9 April 2009 in support of the application as attesting to five comments by readers placed on Mr Hilton’s website on 9 or 10 April 2007 by way of comment on the words relied on by Ms Kaschke as having been published. Mr Harris submitted that if Ms Kaschke were required or proposed to amend the particulars of claim to plead further as to publication her application in that respect would be refused. However the master stated that that would be to consider material that was not before the court on this application and that he did not consider it appropriate to do so.

The master dealt first with the defence based on section 1 of the Defamation Act 1996. The material provisions of section 1 are as follows:

“Responsibility for publication

(1)

In defamation proceedings a person has a defence if he shows that -

(a)

he was not the author, editor or publisher of the statement complained of

(b)

he took reasonable care in relation to its publication, and

(c)

he did not know, and had no reason to believe, that what he did cause or contributed to the publication of a defamatory statement.

(2)

For the purpose “author”, “editor” and “publisher” have the following meanings, which are further explained in the subsection (3) –

“editor” means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and

“publisher” means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.

(3)

A person shall not be considered the author, editor or publisher of a statement if he is only involved…

(c)

in processing, making copies of, distributing or selling an electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form…

(e)

as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control…

(5)

In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of defamatory statement, regard shall be had to –

(a)

the extend of his responsibility for the content of the statement or the decision to publish it,

(b)

the nature of circumstances of the publication, and

(c)

the previous conduct or character of the author, editor or publisher.”

Mr Harris submitted that Mr Hilton is not to be regarded as author, editor or publisher because he had no effective control over the appearance or content of the material complained of on the website and relied in particular on the statutory negativing of a person’s description as editor or publisher if he is only involved in the activities set out in section 1(3)(c) or (e). The master held that Mr Hilton had not shown that Ms Kaschke has no real prospect of showing at trial that he was either the editor or publisher of the material in question after the statutory negativing process required by section 1 is properly applied. Nor did he accept that Ms Kaschke has no real prospect of showing lack of reasonable care in relation to the publication for the purposes of section 1(1)(b).

In reaching those conclusions the master drew attention to a number of admissions by Mr Hilton in his defence and witness statements. First Mr Hilton accepted that he was the operator of the website. Second he accepted that he initiated a system under which entries on the website could be and were described as recommended and that he could himself adjust the score required to entitle any entry to be so described. Third he accepted that he himself was involved in the promotion of posts, that is to say to place them in a more prominent position then they would otherwise be on the website. He cited the following extract from Mr Hilton’s first witness statement: “Whether or not I promote a post is based broadly on the following factors: (a) how busy I am and whether I see a link to the post on the home page; (b) how new it is; (c) whether it has been recommended; (d) whether it has a large number of comments; (e) who it is written by; (f) whether, if I look at the full post, it is interesting on the face.”

Mr Hilton further accepted that on promotion he may make changes. “On promotion I may (but do not always) quickly check the piece for spelling and grammar and make corrections. However that it is the only time that I ever change a person’s post.” Fourth Mr Hilton accepted that there are occasions, albeit rare, when he would take it on himself to delete material from the website: “The system does allow me to remove articles from the website and I have done this in the past in response to a complaint or because I think that removal is otherwise necessary. I would estimate that I had done this on only four or five occasions prior to August 2007 (i.e. the date on which I first saw a letter from the claimant’s lawyers). There have been occasions where a pseudonymous member (i.e. a member who has signed up using details that are clearly not accurate) and has written offensive materials.”

The master also referred to a passage in Mr Hilton’s witness statement in which he referred to “spam attacks of pornographic or inappropriate commercial posts.” “On the rare, perhaps three, occasions this has happened in the last two years I have banned the spam account which automatically deletes all the posts and comments from that user accounts. I will have become aware of an attack either because other users notified me about it, or the number of spam posts combined with the titles made them easy to spot.”

In those circumstances the master did not accept for the purposes of the application that it was shown that Mr Hilton was only involved, and he emphasised the word “only”, in processing distributing or selling the electronic medium in which the publication was recorded within the meaning of section 1(3)(c) or that he was only involved in operating the service by which the publication was made available also within the meaning of section 1(3)(c). Nor did he accept that Ms Kaschke has no real prospect of showing lack of reasonable care in relation to the publication for the purposes of section 1(1)(b). With reference to section 1(5) he held that the extent of Mr Hilton’s responsibility for the decision to publish must take account of his involvement in the process of publication which question in his judgment was not concluded by the evidence on the application. He also held that the evidence even if unchallenged was not conclusive on the question whether for the purposes of section 1(3)(e) the court should accept that for the purposes of this publication Mr Hilton was the operator of a system by means of which the statement was transmitted to a person over whom he had no effective control.

In short the master held that this was not the staff of summary judgment. The proper forum to test whether Mr Hilton was to be considered as the editor or publisher of the words complained of and whether he took reasonable care in relation to the publication was at trial where the evidence of the witnesses may be assessed and a judgment formed as to the defence relied on under section 1.

Turning to Mr Hilton’s Regulation 19 defence, the master identified the essential question to be answered in deciding whether Mr Hilton was entitled to invoke it, as being whether his activity was limited to storage by him as a service provider of information provided by a recipient of the service. In answering that question the master referred to two paragraphs in the judgment of Eady J in Bunt v Tilley [2006] EWHC 407:

“8.

The high point of the claimant’s case in this respect is to rely upon the fact that the corporate Defendants have provided a route as intermediaries, whereby third parties have access to the internet and have been able to pass an electronic communication from one computer to another resulting in a posting to the Usernet message board. The Usernet service is hosted by others who are not parties to these proceedings, such as Google. It is not accepted that the relevant postings necessarily took place via the relevant ISP services but that would be a matter for the claimant to establish at trial. For the moment, that assumption should be made in his favour.

9.

When considering the internet, it is so often necessary to resort to analogies which, in the nature of things, are unlikely to be complete. That is because the internet is a new phenomenon. Nevertheless an analogy has been drawn in this case with the postal services. That is to say, ISP do not participate in the process of publication as such, but merely act as facilitators in a similar way to the postal services. They provide a means of transmitting communication without in any way participating in that process.”

The master held that those paragraphs demonstrate that it would be for Mr Hilton to show that as a service provider he did no more than store the information in question or no more than facilitate the transmitting of the communication. If, as he thought it does, the evidence raises a proper question to be tried as to the extent of the control by Mr Hilton of the content of the information provided it would not be appropriate to give summary judgment on the defence raised under Regulation 19.

In reaching that conclusion it would appear that the evidence which the master considered raises a proper question to be tried as to the extent of Mr Hilton’s control of the content of the information provided was the evidence to which he referred in giving his reasons for holding that there was a triable issue on the section 1 defence.

In front of the master, as in front of me, Mr Harris relied strongly on the decision of the High Court of Ireland in Mulvaney v Betfair [2009] EIHC page 133. In that case Clarke J referred to the fact that the defendant’s website contained a chat room, known on the site as the Betfair Forum, described as the “Chat room” in which registered customers of Betfair might make comments concerning sport, betting or other issues. The master observed that the decision in that case was made on the trial of a preliminary issue rather than upon proceedings for summary judgment. Ms Kaschke submitted that Mr Hilton’s website could not sensibly be regarded as a chat room. The master came to the conclusion that again the proper forum to test those competing arguments and importantly to consider the overall purpose for which the website was operated was at trial. He said that it was not fanciful that Ms Kaschke could distinguish the case of Betfair on its facts.

In case he was wrong in finding that there is a triable issue on the Regulation 19 defence in relation to the activity carried on by Mr Hilton the Master went on to consider whether Mr Hilton could satisfy the further conditions of Regulation 19 whereby the service provider is not to have actual knowledge of unlawful activity or information and is not to be aware of facts and circumstances from which it would have been apparent to him that the publication was unlawful. In relation to the latter condition the master held that the words “would have been” indicate a test of observation by a reasonable man having regard to all the circumstances. What would reasonably have been observable by Mr Hilton at the time of admitted publication, that is to say at the time when the comments by readers were added to the posting complained of, was in his judgment material to decide whether Mr Hilton does or does not have a defence under Regulation 19. That issue in his view was not appropriate to be decided on an application for summary judgment.

The master added that it would not avail Mr Hilton, if that issue were to be determined against him, to rely on the words of Regulation 19(a)(ii) whereby a defence is available if “upon obtaining such knowledge or awareness” the service provider “acts expeditiously to remove or to disable access to the information.” That was because although the evidence before him was that Mr Hilton removed the posting on 7 August 2007 on receipt of an email from Ms Kaschke accompanied by a copy of a letter from her lawyers dated 21 June 2007 addressed to him, and although Mr Hilton’s case was that that was the first time that he had received notice of a complaint about the posting and, indeed, the first time that he had read it, that did not eliminate the need for enquiry at trial as to his awareness of the relevant circumstances at the time of the posting. It is not clear from the judgment whether he considered that there was a triable issue as to whether the 7 August was the first time that Mr Hilton received notice of a complaint about the posting in addition to a triable issue as to whether he was aware of relevant circumstances at the time of the posting in April 2007.

The master recorded that he did not consider it necessary, if he was right in his judgment on the issues under Regulation 19 which he decided, to go on to decide for the purposes of the application before him and expressly did not decide the following matters:

Finally the master referred to Mr Harris’s reliance on the prohibition in Article 15 of the E-Commerce Directive against the imposition by Member States of a general obligation on providers to monitor the information which they transmit or store or actively seek facts or circumstances indicating illegal activity. He held that such a general objection is not a necessary ingredient of Ms Kaschke’s cause of action and that it would not assist Mr Hilton to show that any absence of a regime of general monitoring on his part did not constitute a breach of any obligation on his part to Ms Kaschke if she could otherwise defeat the defences which he raises under section 1 of the Defamation Act 1996 and Regulation 19. For all those reasons the master concluded that the application for summary judgment did not succeed and must be refused.

As already mentioned there is no appeal in respect of the defence based on section 1of the Defamation Act. In relation to Regulation 19, as it seems to me, the questions that arise are:

In order to succeed in his appeal and demonstrate that the master was wrong not to strike out the claim Mr Hilton would need to show that the answers to questions (i), (iv) and either (ii) or (iii) are no. If the answer to any of the questions (i), (iv) or both (ii) and (iii) is yes, there would be no proper basis for striking out the claim.

The first question is whether Mr Hilton provided an information society service within the definition set out in Regulation 2(1). As summarised in recital 17 of the E-Commerce Directive that definition covers “any service normally provided for remuneration at a distance by means of electronic equipment for the processing (including digital compression) and storage of data and at the individual request of a recipient of a service”. As defined in Directive 98/34/EC it connotes: “any service normally provided for remuneration at a distance by electronic means and at the individual request of a recipient of services.” Doctor Matthew Collins in his work The Law of Defamation and the Internet [second edn 2005] at para 17.03 observes that: “commercial internet intermediaries, such as ISPs, bulletin board operators and web hosting services will usually satisfy this definition”.

In Bunt v Tilley Eady J held that it was clear from the evidence in that case that the three corporate defendants, who were respectively the internet service providers (“ISPs”) to the first to third defendants fell within the definition. In that case he recorded that neither the pleaded case nor the evidence disclosed any role on the part of the corporate defendants other than that of affording connection to the internet. (paragraph 7). In my view it is not seriously arguable that Mr Hilton was not providing an information society service within the definition set out in regulation 2.

I note in passing that in Bunt v Tilley Eady J mentioned the reference, in the consideration of the matter by Gatley on Libel and Slander [Tenth edn] at para 6.27, to Recital 42 of the E-Commerce Directive. The matter referred to by Eady J was the preliminary question of the definition of information society service. Recital 42 is in these terms: “The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.” This is a somewhat curious recital because on its face the suggestion that the exemptions from liability established in the Directive are limited to cases involving transmission or temporary storage of information does not sit easily with the explicit exemption required to be provided by Member States where an information society service is provided that consists of the storage of information (see Article 14 in which, in contrast to Article 13 which deals with caching, there is no requirement that the storage should be temporary).

Nor does recital 42 sit easily with recital 46 which provides: “In order to benefit from limitations of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned;…” If anything recital 42 would in my view be relevant not to the preliminary question of whether a particular person satisfies the definition of an information service provider but rather to the category of activity in respect of which Member States are obliged under the Directive to secure exemption of liability in Articles 12, 13 and 14. It is also worthy of note that the reference in Recital 42 to the implication that the information society service provider has not only no control over the information which is transmitted or stored but no knowledge of it either goes further than the exclusion of the exemption in Article 14.2 (reflected in Regulation 19(b)) which disapplies the exemption where the recipient of the service is acting under the authority or the control of the provider but not where he has knowledge of the information which is transmitted or stored. Regulation 19 (a) refers to knowledge not of the information stored but of unlawful information or activity.

The suggestion in recital 42 that mere knowledge of the information which is transmitted or stored is sufficient to exclude the exemption from liability which the Directive requires Member States to ensure goes further than the exclusions in Article 14 and Regulation 19.

The next question is whether the information society service provided by Mr Hilton consisted of the storage of information provided by a recipient of the service. There was dispute between the parties as to the correct identification of the service referred to in Regulation 19. Ms Kaschke submitted that where as was the case with Mr Hilton a person controls a website comprising more than one web page the question whether the information society service which he provides consists of the storage of information must be answered by reference to and consideration of the whole of the website and not just the page containing the information comprising the defamatory words exclusion for liability for publishing which is sought to be claimed by invoking Regulation 19. Mr Harris submitted that in such a case the information society service is a reference to the individual webpage on which the defamatory words appeared. It would appear that the master agreed with Ms Kaschke. One of his reasons for refusing the application for summary judgment was his conclusion that the proper forum to consider the overall purpose for which “this website” was operated was at trial. This suggests that he considered that the question whether the information society service provided by Mr Hilton consisted of the storage of information provided by a recipient of the service is to answered by reference to the website as a whole rather than by reference to the individual webpage on which the offending blog was posted by the first defendant.

No authority was cited in which this question has been specifically addressed and explicitly answered. Mr Harris relied on three authorities in support of his submission. The first was Bunt v Tilley. As already mentioned in that case all three corporate defendants were ISPs. The sixth defendant, BT was the ISP of the third individual defendant. Eady J stated that: “It is important in the context of the present applications that it is not pleaded that any of the three corporate defendants has at any stage “hosted” any website relevant to these claims”, and that “the high point of the claimant’s case in this respect is to rely upon the fact that the corporate defendants have provided a route as intermediaries, whereby third parties have access to the internet and have been able to pass an electronic communication from one computer to another resulting in a posting to the Usenet message board. The Usenet service is hosted by others, who are not parties to these proceedings, such as Google.” (paras 5 and 8).

However later in his judgment Eady J recorded that:

“It was made clear in the evidence served on behalf of BT that, although Regulations 17 and 18 had originally been relied upon, this was no longer being pursued. It is accepted that BT hosts Usenet news groups on its servers and that news group postings are stored for a period of time, usually amounting to a few weeks, to enable BT’s users to access them. BT does not operate the news groups, but it has the ability to remove postings from its news group server, although they may still be viewed via other servers. In these circumstances it is necessary to consider the terms of Regulations 19 and 22.” (para 68).

Having set out the relevant provisions of Regulation 19 and 22 and referred to submissions by BT’s counsel that BT had not been put on notice of the alleged unlawful activity or information Eady J recorded that:

“It is thus submitted that BT is not liable for hosting the publications in the light of the provisions of Regulation 19 and there is nothing to suggest that the claimant would have any prospect of proving otherwise.” (para 73).

Eady J concluded:

“It is necessary to bear in mind in this context, as I have said, that the provisions of Regulation 19 would prevent any claim for damages, whether in respect of harassment or any other wrongful act.

In conclusion I am quite satisfied that the claims against these applicants should be struck out in accordance with CPR Part 3, and indeed that there would be no realistic prospect of success on any of the causes of action. Thus the criteria under CPR Part 24 would also be fulfilled.”(paras 76 and 77).

It is not apparent from the passages cited above what was the basis on which Eady J held that the provisions of Regulation 19 would prevent any claim for damages against BT. However it is in my view implicit in his judgment that he at the very least considered that the fact that BT hosted Usenet news groups on its servers and that newsgroup postings were stored for a period of time usually amounting to a few weeks to enable BT’s users to access them and that BT, while not operating the news groups, had the ability to remove postings from its news group server was not incompatible with and did not prevent a conclusion that BT was the provider of an information society service which consisted of the storage of information provided by a recipient of the service.

While providing some support for the proposition that Regulation 19 may be invoked by the provider of an information society service which involves it in a greater degree of involvement than the minimum service necessarily provided by any ISP, Bunt v Tilley does not in my view assist Mr Harris on the question with which I am currently concerned. It was not a case where, as here, the defendant operated a website comprising more than one webpage or at any rate it was not a case where anything turned on the distinction between the manner in which a website as a whole and an individual web page were operated. In particular it was not a case where the applicability or otherwise of Regulation 19 was held to depend not on the characteristics of the website as a whole but only on those of the webpage containing the defamatory words complained of.

The second case relied on by Mr Harris was Betfair. In that case the defendants carried on a business as a provider of a betting exchange, mainly through a website called Betfair.com. The website contained a chat room known on the site as the Betfair forum in which registered customers of Betfair might make comments concerning sports, betting or other issues. Libel proceedings were brought concerning comments posted on the chat room by registered clients of Betfair. The plaintiffs alleged that the inclusion of the relevant comments on the chat room constituted a publication by Betfair of those comments and pursued a claim of libel against Betfair on that basis. It submitted that it was the registered clients who posted the allegedly defamatory comments and thus provided the information in question whereas Betfair stored that information on its servers which hosted the chat room. Betfair submitted that that service was provided at a distance by electronic means and at the individual request of the recipient of the service and thus that it acted as “hosts” of that information for the purposes of Regulation 18 of the European Communities (Directive 2000/1/EC) Regulations, 2003 (S.I.69 of 2003) (the “2003 Regulations”). The 2003 Regulations were the Irish equivalent of the Regulations in this case in that they were held by Clarke J to be the mechanism by which the E-Commerce Directive was transposed into Irish Law.

Regulation 18 of the 2003 Regulations is the equivalent of Regulation 19 of the Regulations in that it was held in Betfair by Clarke J to have transposed Article 14 into Irish Law. Although the two Regulations are not in identical terms the provisions which are relevant to the question currently under consideration are couched in similar terms. Thus Regulation 18 (1) of the 2003 Regulations provides: “An intermediary service provider who provides a relevant service consisting of the storage of information provided by a recipient of the service shall not be liable for the information stored at the request of that recipient if…”. There then follow provisions reflecting the requirement to show an absence of actual knowledge of the unlawful activity concerned and awareness of facts or circumstances from which the unlawful activity is apparent or proof of expeditious removal of or disabling of access to the information. Although Regulation 18 refers to an intermediary service provider who provides a relevant service rather than to the provision of an information society service as in Regulation 19, Clarke J held that the 2003 Regulations clearly envisage that the relevant service providers are providers of an “information society service” and agreed with Betfair that an “intermediary service provider” falls within the definition of “relevant service provider” as defined by the 2003 Regulations. He therefore held that whether or not Betfair could establish that the chat room constituted an “information society service” was directly related to answering the question of whether Betfair was an “intermediary service provider” or “relevant service provider” as described in the 2003 Regulations.

Clarke J observed that there is no case law dealing directly with the question of whether Regulation 18 covers the provision of chat room facilities. However he expressed the view that the E-Commerce Directive appears to apply to chat rooms if they are hosting information provided by a recipient of the service and available to other users of the service. He also referred to the Report from the Commission to the European Parliament on the application of the E-Commerce Directive which states at page 12: “In particular, the limitation on liability for hosting in Article 14 covered different scenarios in which third party content is stored apart from the hosting of websites, for example, also bulleting (sic) boards or ‘chat rooms’”. (para 5.13).

Clarke J concluded:

“As the service provided by Betfair, through its chat room, clearly falls within the meaning of ‘relevant service’ as defined by the 2003 Regulations, it follows that Betfair, in providing this service, is a ‘relevant service provider’ and so an ‘intermediary service provider’ within the meaning of the 2003 Regulations. Betfair is, therefore, entitled to the benefits of Regulation 15 and 18 of the 2003 Regulations.

For the reason which I have just sought to analyse I am also satisfied that the provision of a chat room service comes within the definition of an intermediary service provider contained in the 2003 Regulations and that the provision of that service to its subscribers by Betfair constitutes the provision of a relevant service consisting of the storage of information provided by a recipient of the service within the meaning of the same Regulations.

It follows that Betfair are, in principle, entitled to the protection of the E-Commerce Directive in these proceedings. In order to be able, successfully to defend the proceedings on that basis it is, of course, also necessary that Betfair be able to establish as a matter of fact in each individual case that the conditions concerning knowledge and expeditious action set out in sub paras A and B of Article 14 of the E-Commerce Directive are met. Whether that can be established on the facts of this case is a matter which did not arise on this preliminary hearing and will fall to be determined at the trial.

However, it follows that, provided that Betfair can establish those matters as facts at the trial, Betfair is entitled to the protection of the E-Commerce Directive.” (paras 5.14, 6.1, 6.2 and 6.3).

Betfair can of course be of no more than persuasive authority and was concerned with construing and applying a regulation framed in different terms to Regulation 19. It is also the case that Clarke J did not explicitly address or purport to answer the question with which I am currently concerned. However subject to those reservations it seems to me that Betfair provides support for a number of propositions. First there is no reason in principle why the operation of a chat room should be incapable of falling within the definition of the provision of an information society service consisting of the storage of information. Thus in principle there is no reason why it should not be an activity intended to be protected by Article 14 of the E-Commerce Directive and eligible for the exclusion of liability conferred by Regulation 19. Second it is not necessarily a bar to entitlement to the protection conferred by Regulation 19 (which Member States were intended to provide by Article 14) that the provider of an information society service consisting of storage of information is also engaged in an activity on the same website which is either not an information society service or if it is which does not consist of the storage of information. In Betfair it was accepted that no betting activity took place through the chat room and that the chat room was maintained and run through a separate section of Betfair’s website which did not include what was described as betting functionality.

This latter point seems to me to derive further qualified support from dicta of Clarke J in the context of deciding the first preliminary issue in that case which was whether Betfair was not entitled to rely on the E-Commerce Directive because it was said not apply to gambling activities. Article 1(5)(d) of the Directive provides that the Directive does not apply to: “gambling activities which involve wagering a stake with monetary value in games of chance, including lotteries and betting transaction.” The Irish Regulations contained a Regulation 2(f) which provided that they did not apply to “activities to which the Betting Act 1931, the Gaming and Lotteries Act 1956 to 1979 or the National Lottery Act 1986 applies or apply.” A question arose as to whether the exclusion in the Irish Regulations was narrower in its definition of gambling activities than the E-Commerce Directive.

In the course of considering this question Clarke J held:

“On the other hand I have come to the view that both the relevant provisions of the Directive and the relevant provisions of the implementing 2003 Regulation are concerned with ‘activities’. The focus of the gambling exclusion, in either case, is centred on the relevant activity, rather than what might be said to be the general business of the person engaged in the activity concerned. While it is undoubtedly true to say that the general business of Betfair involves Betfair facilitating betting, it seems to me that the ‘activity’ with which I am concerned in this case is not betting in any sense of the word but rather the provision of a chat room. It is common case that there is no direct connectivity between the chat room and the betting section of the Betfair website. It is true to say that both betting and chat room activities can be conducted on the same website. However the respective activities are conducted on separate parts of the website with no connectivity. Likewise, the ‘activities’ concerned are very different. A person who makes comments on the chat room may or may not engage in any betting activity connected with the issues debated on the chat room. There is, in my view, no significant nexus between the chat room activity, on the one hand, and the betting activity, on the other hand, which could reasonably lead to the characterisation of the chat room as being part of any betting activity that might be said to take place on the Betfair website.

On that basis I am satisfied that even if the activities of the betting exchange are caught by the provisions of Regulations 2(f) of the 2003 Regulations that Regulation could have no applicability to chat room activities unconnected with the act of betting.” (para 4.15 and 4.16).

Although Clarke J was there addressing the separate question of whether the Irish Regulations were excluded by reason of Betfair’s activities, rather than the issue of whether the question whether the information society service provided by Betfair consisted of the storage of information was to be answered by reference to the chat room alone or by reference to the whole website operated by Betfair, it seems to me that the thrust of his remarks gives some support to the proposition that the question was to be answered by reference to the characteristics of the chat room alone provided that there was no significant nexus between the chat room activity on the one hand and the activity carried out on other parts of the website which could reasonably lead to the characterisation of the chat room as being part of the activity that might be said to take place on the other part of the Betfair website. Clarke J did not say what he thought the position would be if there was a significant nexus between the chat room activity and the betting activity that might be said to take place on the other part of the Betfair website. The implication appeared to be that in the event of such a significant nexus it would be necessary to test whether Betfair’s provision of information society services consisted of the storage of information by reference to an analysis of the characteristics of the website as a whole rather than of the chat room on its own.

The third authority relied on by Mr Harris was the decision of Eady J in the unreported case of Imran Karim v Newsquest Media Group Limited dated 27 October 2009 case number HQ09XOO3357. In that case the claimant brought a libel action against the defendant which was a large regional media group which published some 200 titles and had around 180 websites. In the action the claimant complained of an article published on a number of websites and also in respect of user comments about the article which were posted to the bulletin boards on websites hosted by the defendant. The defendant applied to strike out the particulars of claim and/or obtain summary judgment inter alia on the ground that the claim in respect of the user comments was precluded by Regulation 19.

The evidence showed that the defendant removed both the article complained of and the related user comments complained of on the day on which it received the claimant’s claim.

Eady J allowed the defendant’s application. He held:

“The important point for present purposes is that, whether or not they would be taken seriously by readers, the defence which is primarily relied upon is that contained within Regulation 19. I am quite satisfied from the evidence that this defendant is indeed entitled to avail itself of this defence, because it did not have actual knowledge of unlawful activity or information until it was pointed out by the claimant in January of this year. It does not necessarily accept that the activity was unlawful anyway in publishing the article but it was not aware of any complaint until that time. In any event, the material was taken down as I have described on 5 February as soon as the nature of the complaint reached the defendant. It is also clear that the recipient of the service was not acting under the authority or control of the service provider within the meaning of Regulation 19...

So it seems to me in those circumstances that the defendant is entitled to rely upon that defence. I can therefore conclude, both in relation to the original article itself, for the reasons I have already addressed and in relation to the comments made by the users that the claimant is unlikely to succeed…Of course, as a matter of fact, the Regulation 19 defence would be considered by the judge rather than the jury, but I am quite satisfied that in any event the test for summary judgment has been achieved in the light of the evidence and submissions before me and, therefore, I will acceded to the application.” (paras 15 and 17).

Although the decision turned in terms on the judge’s finding that the requirements of absence of knowledge of unlawful activity or information or expeditious removal and of the absence of authority or control of the defendant over the recipient of the service were met, the necessary premise of the judgment was that the defendant also satisfied the requirement of showing that it provided an information society service consisting of the storage of information and that the liability alleged against it arose as a result of that storage.

Attached to the post hearing supplemental submissions on this authority which Mr Harris served on 1 December 2009 together with a copy of Eady J’s judgment were the defendant’s skeleton argument in that case and email correspondence between Mr Harris and the defendant’s counsel. According to the latter the bulletin boards in question were hosted on the same web page of the same newspaper web site as the article complained of, the website having a “have your say” section at the end of the article.

Mr Harris submitted that Imran Karim is authority for the proposition that the fact that a website contains a mixture of content that is user generated and material that is written by or is proactively chosen by the operator of the website does not preclude the operator of the website from relying upon Regulation 19 so far as the user generated content is concerned. That is so he submitted even if the user generated content is (as was the case in Karim) automatically combined with other content or information to which Regulation 19 does not apply. In such circumstances Eady J appeared to have been satisfied so Mr Harris submitted that the information society service provided still consisted of the “storage of information”. It is not clear to me what Mr Harris meant by “automatically combined with”. If he meant by that expression “appearing on the same page of a website as” then it seems to me that his submission is correct. It is the case that in Karim the defendant’s website contained both user generated content and material (in the form of an article) which was written by or proactively chosen by the operator of the website and that the latter fact did not prevent Eady J holding that the information society service provided by the defendant in respect of the user content consisted of the storage of information and thus attracted the protection of Regulation 19. On the assumption which seems to me reasonable to make based on the correspondence and skeleton argument in that case that the user generated content appeared not only on the same website but on the same webpage as other material which was written by or proactively chosen by the operator of the website and which could not itself have attracted Regulation 19 protection, it would seem to me that Karim is also authority for the proposition that storage of user generated content is capable of attracting Regulation 19 protection in those circumstances as well.

It seems to me that Imran Karim supports the proposition which is also supported by Betfair that if an information society service is provided which consists of the storage of information provided by a recipient of the service an the service provider would otherwise be liable for damages as a result of that storage, he is not precluded from invoking the exclusion of liability conferred by Regulation 19 by the mere fact that in addition he also provides some other service, even an information society service, which does not consist of the storage of information. I should add in this context that Mr Harris conceded that the words “consists of” in Regulation 19 are to be interpreted as meaning “which consists only of”. Thus the fact that Betfair provided the service of a betting exchange did not mean that the chat room was not an information society service consisting only of the storage of information. Nor did the fact that Newsquest provided an information society service in the form of making available newspapers articles on its website mean that its storage of user generated content on the same website and it would appear on the same actual webpage did not consist only of the storage of information such as to attract Regulation 19 protection.

However in my judgment that is not determinative of the question raised on this aspect of the appeal because it still does not necessarily identify the information society service whose provision is referred to in Regulation 19. Is it the storage of the particular information provided by the particular recipient of the service the storage of which results in the liability which would exist but for the exemption conferred by Regulation 19, or is it the storage of all the information which is provided by all recipients of the service? I have not found this an easy question. It is potentially important in a case where a blog post website or web page host operates the website and/or web pages in such a way that it cannot be said that the service provided is as a whole confined to and consists only of the storage of all the blogs posted on the website and/or web pages, but where the host’s conduct in respect of the particular blog the hosting of which would give rise to liability for libel damages in the absence of Regulation 19 protection is so confined to and does consist only of mere storage. In such a case the question whether Regulation 19 protection is applicable would depend on the answer to the question which I have posed.

In support of the submission that the availability of the Regulation 19 defence depends upon what is being done with the specific information in question Mr Harris submitted that that is apparent from four matters. First he submitted that Regulation 19 provides a potential defence where the information society service consists of storage “of information provided by a recipient of the service”. That he submitted is a reference to specific information provided by a specific recipient. Second he submitted that the potential liability arises “as a result of that storage”. In defamation where an ISP stores information on a publicly accessible website its potential liability does not arise out of the provision of the service of storage as a whole he submitted but rather out of the accessible storage of specific defamatory words. The most natural reading of those words in this context he submitted is as a reference to liability that arises as a result of the storage of specific pieces of information. Third in Karim it could be said that the broad “service” provided by the website operator was that of a general news service to which internet users could then add comments. The comments did not stand alone but were to be read in the context of non-user generated content also provided by the website operator. However the fact that storage of user comments formed one part of that broader “service”, a significant part of which could not claim Regulation 19 protection, did not prevent the operation of Regulation 19 so far as the comments were concerned. The reason he submitted is that so far as the relevant comments were concerned the only service provided was one of storage. Fourthly the word “information” is used in Regulation 19 paragraphs (a) (i) and (ii) in a sense that can only apply to the specific information that gives rise to liability that is to say in the case of defamatory content the specific words alleged to be unlawful. For example under paragraph (a) (ii) where the defendant becomes aware of unlawful information he must act expeditiously to remove “the information” if he is to retain that defence. Thus he submitted there is no suggestion that there is, and would be little practical purpose in imposing, an obligation to remove all the information the subject of the service. There is no good reason for giving “information” a broad meaning for the purposes of the first line of Regulation 19 when assessing whether the service in question potentially attracts the defence but a narrow meaning so far as paragraphs (a) (i) and (ii) are concerned.

In my judgment the construction for which Mr Harris contended is correct, albeit not necessarily for all of the reasons which he advanced. The strongest argument pointing in the opposite direction in my view is the language of Article 14 of the E-Commence Directive: “Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service on condition that…” Although, as with Regulation 19, the opening words refer to a service consisting of the storage of information provided by a recipient of the service, as distinct from recipients of the service, the requirement that Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service reads a little clumsily if the recipient in question is the same as the recipient referred to in the opening words of the Article. If the intention was to define and confine the relevant service capable of attracting protection as the specific service provided for which the intention is to provide immunity, one might have expected the closing words to have been “at his request”.

Since the purpose of Regulation 19 is to transpose Article 14 into English Law, it is necessary to construe it having regard to the purpose of Article 14. However I am not persuaded that, despite the clumsiness of language implicit in Article 14 being construed in a way which is consistent with the construction of Regulation 19 for which Mr Harris contends that that construction is wrong. Since Article 14 is concerned with ensuring immunity for liability arising out of the storage of information at the request of a recipient of an information society service it is not illogical that in identifying the relevant service the article should do so by reference to the service provided by storing that information. Since, as held in Betfair and Karim, there is no reason why the protection should be withheld merely because a defendant who would otherwise qualify for protection provides a different service which does not qualify for it, it seems to me that in principle there is no reason why the protection should be withheld from a person who also provides the same kind of service but in circumstances where his intervention goes beyond mere storage of information.

The language of Regulation 19 is in my view consistent with the construction contended for by Mr Harris and does not involve the clumsiness arguably present in Article 14. I broadly agree with the first two points advanced by Mr Harris. Although the exclusion of liability as a result of “that storage” is not in my view inconsistent with the opening words of Article 19 referring to all storage of all information provided by recipients of the service, the more natural reading of the words is that which is consistent with the construction contended for by Mr Harris. Mr Harris’ third point seems to me persuasive rather than determinative. The fact that immunity is not withheld from persons who also supply different services does not of itself demonstrate that immunity is not intended to be withheld from persons who provide the same service but in a way which goes beyond mere storage. However I agree with Mr Harris that it points in that direction.

As to Mr Harris’ fourth point, it seems to me to have force in so far as it relies on the reference to “the information” in Regulation 19(a)(ii). It seems to me that that can only be a reference to the information provided by a recipient of the service which is referred in the second line of the opening words of Regulation 19. Since it is plain that the requirement to remove “the information” can as a matter of common sense only be intended to refer to the particular information the storage of which would otherwise give rise to liability, that seems to me to point strongly in favour of identifying the information society service referred to in Regulation 19 as the particular storage of the particular information whose storage would otherwise give rise to liability in a particular case. However I see no force in Mr Harris’ argument so far as it relies on the reference to “information” in Regulation 19(a)(i) since that refers to information or unlawful activity and there is no reference to unlawful activity in the opening words of Regulation 19.

For all these reasons in my judgment when considering in a particular case whether a defendant is entitled to the immunity conferred by Regulation 19 (subject to satisfying the extra conditions) the question to be asked is whether the information society service provided by the defendant in respect of the information containing the defamatory words which would otherwise give rise to liability consists only of and is limited to storage of that information. If the answer to that question is that it does consist only of storage of the information, Regulation 19 immunity is potentially available even if it would not be available in respect of other information also stored by the defendant in respect of which the service provided by the defendant goes beyond mere storage.

It follows that to the extent that the master based his conclusion that there is a proper question to be tried as to whether the service provided by Mr Hilton consisted only of the storage of information on his view that the evidence left unanswered questions as to whether Mr Hilton’s operation of the website as a whole including the homepage went beyond mere storage of information he was in my judgment wrong to do so.

It is clear from Mr Hilton’s own witness statements that he exercised some editorial control on parts of the website and in particular on the homepage. It is quite clear from his evidence that his involvement in the website as a whole and in particular in the homepage went beyond the mere storage of information. Thus for example he tried to secure articles from high profile authors, wrote articles himself for placing on the website and carried out other tasks such as conducting polls and interviews to be placed on the website. The homepage had a segment headed “Recommended” and one headed “Recent Blogs” as well as a more prominent segment headed “Top Entries”. As soon as an individual blog post was written and appeared on its own webpage, its title together with the “username” of the person who wrote it and a link to the full text of the post appeared at the top of the “Recent Blogs” segment on the homepage. That segment contained links to the last 15 posts placed by members. That was a completely automatic process requiring no intervention from Mr Hilton and over which he had no influence.

Entries in the “Recommended” section of the homepage which included links to the recommended blog posts were generated by a process in which members were able to recommend or un-recommend individual posts by clicking a button on the page of any given post. When a post achieved a net score of 3 or more recommendations a link to it was automatically placed in the recommended section of the homepage. In his capacity as a member Mr Hilton could recommend a post like any other member. However in his capacity as operator of the site he had no input into the system of recommendations.

From time to time Mr Hilton considered whether entries appearing on the “Recommended” and “Recent Blogs” lists on the homepage were suitable for increasing to a more prominent position. Upon promotion far more detail was provided about each post on the homepage including the date, the time of the post and a preview of part of the post comprising anything from a couple of lines to several paragraphs, pictures and video clips. As mentioned by the master Mr Hilton’s evidence was that his decision whether or not to promote a post was based broadly on a number of factors including whether it a had a large number of comments, who it was written by and whether if he looked at the full post it was interesting on its face. In addition he sometimes edited to prominence a piece without going through the promotion process for example where he persuaded a prominent politician to post an article on the website or where he had written messages about the running of the site which he thought needed to be seen by members particularly quickly.

It is in my view clear that Mr Hilton’s involvement in the homepage in the respects referred to went beyond mere storage so that Regulation 19 immunity would not be available in respect of liability for defamatory words appearing on the homepage.

So far as Mr Hilton’s involvement in individual blogs posted by members was concerned the following evidence falls to be considered. He said that it had always been a central facet of the website that there was “for the most part no editorial control.” Members had always been free to write articles of interest to them and he “rarely altered” anything that had been posted by members. Those alterations were limited to the following. Having identified from the homepage recommended or recent blog sections a post which he decided to promote on the homepage he might but did not always quickly check the piece for spelling and grammar “and make corrections”. That was the only time he said that he ever changed a person’s post.

As well as making corrections, Mr Hilton said that the system allowed him to remove articles from the website and that he had done that in the past in response to a complaint or because he thought that removal was otherwise necessary. He estimated that he had done this on only four or five occasions prior to August 2007 the date on which he said he first saw the letter from Ms Kaschke’s lawyers. Those had been occasions where “a pseudonymous member (i.e. a member who has signed up using details that are clearly not accurate) and has written offensive materials (sic). I do not recall the exact details of these, but I believe the issues were ones either of bad language or political provocation (by which I mean a post written by someone who is clearly not a Labour supporter with a view to deliberately provoking those who are) and was not defamatory.”

In addition on the rare, perhaps three, occasions when the website had suffered spam attacks of pornographic or inappropriate commercial posts he banned the spam account which automatically deleted all the posts and comments from that user account. He would have become aware of the attack either because other users notified him about it or the number of spam posts combined with the titles made them easier to spot.

So far as the blog posted by the first defendant which is the subject matter of this action is concerned, a link to the blog appeared in the “Recent Blogs” section of the homepage of the website for approximately five days. Mr Hilton was able to discover this after the event from information contained on the website. During that period between 9 and 14 April 2007 Mr Hilton himself wrote a post on 11 April 2007. However during that week he was heavily engaged in other matters unrelated to the website and he stated that the first time he became aware of the blog post complained of by Ms Kaschke was when he received her email on 7 August 2007. Prior to that date the blog had not been promoted by him nor read by him. He had no recollection of seeing the title of the post in the Recent Blogs list on the homepage. Moreover while he was aware of the existence of Mr Gray the first defendant, he did not know him personally, did not know at that time that he posted on Mr Hilton’s website or that he did so using the username “Grayee”. Although he was aware that a user named “Grayee” was posting on the website he did not associate him with anyone of importance in the Labour party so that even if he had seen that name next to the title of the post in the Recent Blogs section that was not a factor which would have made him inclined to investigate it further. He had no recollection of seeing any link to the blog in the Recent Blogs segment of the website. Even if he had seen a link to it, the title of the piece, the lack of recommendations and comments and the identity of its author were all such that he would not have opened it. As soon as he become aware of the contents of it he immediately removed it from the website.

He said that he did not generally monitor blog posts that were placed on the website.

The evidence summarised above illustrates why it is potentially important to identify with precision the information society service referred to in Regulation 19. It is in my view clear that if the relevant information society service was the website as a whole or the homepage it would not fall within the definition of consisting only of the storage of information. Accordingly Regulation 19 immunity would not be available to Mr Hilton. Similarly if the relevant information society service was the hosting of all blogs posted on web pages made available by Mr Hilton on his website it again seems to me at least arguable that that also would not fall within the definition of consisting only of the storage of information. In his first witness statement Mr Hilton stated in terms that where a blog is promoted by him he may check the piece for spelling and grammar and make corrections. That in my view arguably goes beyond mere storage of information. The fact that Mr Hilton on a few occasions removed blog posts on grounds of bad language, political provocation or offensiveness falling short of defamation again in my view makes it at least arguable that the service provided in respect of those individual blog posts and also in respect of the general service consisting of making available webpages on his website for such blogs to be posted consisted of more than mere storage.

So far as the act of removing certain posts is concerned, Mr Harris submitted that there is a material distinction between the selection of blogs in advance of accepting them for posting by a vetting process and the election for removal after they have been posted of blogs which are offensive. He accepted that the former goes beyond the mere storage of information but submitted that the latter does not. Otherwise he submitted it would give operators of websites which host blogs an incentive not to monitor their sites with a view to removing offensive material. That he suggested is contrary to the policy in Article 14 and Regulation 19 of encouraging the expeditious removal of information whose storage is unlawful. This latter argument does not seem to me well-founded. It fails to distinguish between material which is offensive and material which is unlawful such as to give rise to liability for storing it. Moreover Article 15 of the E-Commerce Directive explicitly prohibits Member States from imposing a general obligation on providers of services covered by inter alia Article 14 to monitor the information which they transmit or store or a general obligation actively to seek facts or circumstances indicting illegal activity.

However the question whether the removal by a service provider of a blog on grounds of offensiveness or political content is in itself enough to prevent his storage of that blog post from consisting only of storage and thus sufficient to withhold Regulation 19 immunity is not one which it is necessary for me to decide. That is because there is no suggestion that this occurred in relation to the blog which is the subject matter of this action and, as I have held, the question whether Regulation 19 immunity is potentially available to Mr Hilton falls to be considered by reference not to the website as a whole or the homepage or even the general storage of blog posts on web pages made available on the website. It falls to be considered by reference to the specific blog posted by the first defendant alone.

In considering whether there is a realistic prospect that Mr Hilton may fail to show that Regulation 19 immunity is potentially available to him it is necessary to distinguish between the target which needs to be hit and the evidence which is admissible in seeking to hit or resist that target. The target, as I have held, is in my judgment confined to the actual blog posted by the first defendant and hosted by Mr Hilton and whether there is a realistic prospect of Mr Hilton failing to show that his hosting of it did not go beyond mere storage of it. If it did not Regulation 19 is potentially applicable even if his operation of the homepage, website as a whole and the general hosting of all blogs went or arguably went beyond mere storage. It does not, however, in my view follow from this that when considering whether the target has been hit the court would not be entitled to have regard to any evidence as to the manner in which the website as a whole, the homepage or the general hosting of blogs was operated by Mr Hilton. However I emphasise that in my view such evidence would only be relevant if and to the extent that it related to the question whether Mr Hilton’s hosting of Mr Gray’s blog went beyond mere storage of information and was evidence from which inferences relevant to that question could arguably be drawn.

Taken at its face value if the evidence contained in Mr Hilton’s witness statements is correct, in my judgment it would follow that his hosting of Mr Gray’s blog consisted merely of storage and that Regulation 19 immunity would be potentially applicable. The question therefore is whether there is a realistic prospect that the court at trial would not accept that evidence as correct. Bearing in mind that in my view this is an issue on which the burden of proof lies on Mr Hilton since it is for him to establish that his Regulation 19 defence is made out and that in the nature of things the manner in which he operated the website is largely within his own knowledge, it does not seem to me that it can be said that there is no realistic prospect of him failing to establish what has to be established. It does not seem to me wholly fanciful for Ms Kaschke to suggest that the process of testing that evidence in cross-examination might reveal matters not so far disclosed or lead the court to reject some parts of it. I do not consider this on the material before me a likely outcome but that is not the test on a strike out.

Ms Kaschke submitted that there is some difference between the averral in paragraph 1.2 of Mr Hilton’s defence that the website was not proactively moderated and parts of his subsequent witness evidence summarised above which she characterised as admissions that he did proactively interfere in content of the site that was politically provocative or had grammatical errors. She also invited the court to infer from what she described as the ideologically very clean content of the postings of the website that more editing was done than Mr Hilton admitted. In Three Rivers DC v Bank of England [2001] 2 All ER 513 at 541,542 Lord Hope, in considering the test to be applied, drew attention to the overriding objective of the CPR to enable the court to deal with cases justly and held that in more difficult and complex cases attention to the overriding objective is likely to be more important than a search for the precise meaning of the test in Part 24.2a (i) of whether the court considers that the claimant (in that case) has no real prospect of succeeding on the claim or issue. He cited with approval guidance given by Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 94-95 in which he said: “Useful though the power is under Part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial. As Mr Bidder put it in his submissions, the proper disposal of an issue under Part 24 does not involve the judge conducting a mini-trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily.” (paras 92-93). In my judgment, having regard to the evidence to which I have referred, there is an issue which should be investigated at trial. It is whether, as Mr Hilton asserts, he did not in any way edit, amend or alter any of the content or appearance of Mr Gray’s blog or whether as Ms Kaschke submits can be inferred from the evidence of his, albeit limited, interventions in respect of other blogs he did so intervene.

Accordingly in my view the answer to the first question set out in paragraph 40 above is yes. It follows that in my judgment there is a realistic prospect that Mr Hilton’s Regulation 19 defence may fail and the claim should not be struck out.

Given my answer to the first question in paragraph 40 it is not necessary for me to answer the remaining questions in order to determine this appeal.

In order to come within Regulation 19(a)(i) it would be necessary for Mr Hilton to show two things: (a) that he did not have actual knowledge of unlawful activity or information and (b) that he was not aware of facts or circumstances from which it would have been apparent to him that the activity or information was unlawful. Initially Mr Harris appeared to submit that it was not necessary for Mr Hilton to establish both these things. However by the end of the oral hearing he accepted that both had to be proved. That concession was in my view not only rightly made but, given the language in Regulation 19(a)(i) inevitable.

Despite the absence of pleaded dates of publication alleged in the points of claim, it was, as recorded by the master in his judgment, accepted by Mr Hilton for the purposes of his Part 24 application only, that there was publication of the material complained of. This acceptance was supplemented by his evidence that as at 10 June 2007 five comments had been made in respect of the blog all of which were posted on 9 or 10 April 2007 (in his first witness statement he had said that there were four comments). The obvious and necessary implication is that there must have been publication of the blog at least to the person or persons (other than its author) who made the comments on it prior to those comments having been made.

Mr Hilton exhibited to one of his witness statements a letter dated 21 June 2007 from Ms Kaschke’s then solicitors addressed to: “Alex Hilton / Jag Singh, C/O Hilton & Hilton Limited, Room 202, 23-28 Penn Street, London N15 DL”. The letter claimed to serve a letter of claim pursuant to the defamation pre-action protocol alleging libel in respect of the blog said to have been published on 9 April 2007. Included in the letter was an assertion that the statement in the blog that Ms Kaschke was a former Baader-Meinhof suspect was a libel not protected by justification as it was untrue that she had been at any time suspected of being a member of the Red Army Faction. Thus this letter when it came to the attention of Mr Hilton put him on notice that the libel alleged in this claim and the meaning to which Master Rose subsequently held that Ms Kaschke’s claim should be confined to alleging was factually untrue.

Mr Hilton’s evidence is that he did not receive the letter dated 21 June 2007 and that the first time it came to his attention was when a copy of it was attached to an email sent to him by Ms Kaschke on 7 August 2007. Two preliminary questions arise. Is there a realistic prospect Ms Kaschke could show that the letter of 21 June 2007 was received by Mr Hilton or came to his attention at or shortly after 21 June 2007? If so is there a realistic prospect that she could show that that demonstrated that he thereby acquired actual knowledge of unlawful activity or information or awareness of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful?

As to the first question, in support of his denial of having seen the letter until 7 August 2007 Mr Hilton pointed to the fact that the letter was sent neither to his personal address nor to the contact details which appeared at the time on the website, that is to say the email address support@labourhome.org. In response Ms Kaschke stated that the letter was addressed to the contact address given on the website “which was then Mr Hilton’s registered office and contact address as on his website.” She suggested that it was possible that he was not aware which contact addresses he had on his website for mail and/or email as he was so busy. Mr Hilton in reply asserted that this claim was unsubstantiated by any supporting evidence and averred that the Penn Street address did not appear on the website. He further pointed out that, whereas he had as an individual no registered address, the registered address for him as a director of Hilton & Hilton Limited was 21 Stoneleigh Road, the address of his mother who was also a director of Hilton & Hilton Limited and his former address. He said that that was the only address he had ever used so far as his directorship of Hilton & Hilton Limited was concerned. However in a Companies House search exhibited to one of Ms Kaschke’s witness statements, it appears that the registered office of Hilton & Hilton Limited changed from 21 Stoneleigh Road on 3 August 2006 to Penn Street, where it remained until it changed back to 21 Stoneleigh Road on 10 September 2007. Thus as at 21 June 2007 and the period between that date and 7 August 2007 it appears that Penn Street was indeed the registered address of Hilton & Hilton Limited.

Moreover at the hearing Mr Harris told me on instruction that whereas as at 21 June 2007 he was operating from Stoneleigh Road work had been done on the website at the office in Penn Street on dates prior to 21 June 2007. In those circumstances Mr Harris conceded that he could not satisfy the strike out test of showing that there is no realistic prospect that it would be held that Mr Hilton received and read the letter shortly after the 21 June 2007.

As to the second question Mr Harris also conceded in the light of the concession to which I have just referred that for the purposes of a strike out application he could not submit that there was no realistic prospect of it being held that as of the date when Mr Hilton first received the 21 June 2007 letter he had actual knowledge of unlawful activity or information and/or awareness of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful within the definition of Regulation 19(a)(i). It is accordingly unnecessary for me to decide what is meant by those words. In Bunt v Tilley Eady J observed that “in order to be able to characterise something as ‘unlawful’ a person would need to know something of the strength or weakness of available defences.” (paragraph 72). The learned editors of Gatley on Libel and Slander (eleventh edition) suggest that a Regulation 19 defence might be much wider than a section 1 defence, the latter referring to the defendant’s means of knowledge that he is contributing to the publication of a defamatory statement, the former referring to his means of knowledge that the statement is “unlawful”. As they point out a statement is defamatory even though there is a perfectly viable defence to a libel action. By contrast they suggest that where there was a defence to such an action it would be difficult to say that it was “unlawful”, for example much of the law of privilege being based upon a duty to publish a defamatory statement. At a minimum they suggest that before one could say that it would be apparent to a defendant that a statement is unlawful he would need to know something of the strength of weakness of available defences. It is hard to disagree with their observation that it seems unlikely that the drafters of the Directive gave much thought to English libel law.

A further reason why it would be unnecessary to decide what is meant by Regulation 19(a)(i) is that there is no pleaded allegation that there was any publication of the blog to any person between 21 June 2007 and 7 August 2007 when Mr Hilton accepted that he read a copy of the letter dated 21 June 2007 where upon he immediately removed the blog from the website. Nor is there any evidence of there having been such publication between those dates. To the contrary, Mr Hilton’s evidence is that the link to the blog in the Recent Blogs section of the homepage of the website would have disappeared after approximately five days thus removing the homepage as a means by which anyone visiting the website would have been aware of the existence of the blog. In those circumstances it does not seem to me that the letter of 21 June 2007 would prevent Mr Hilton from relying on Regulation 19 even if he were held to have received and read it on or shortly after the date on which it was sent and even if his reading of it were held to constitute knowledge of unlawful information or awareness of facts from which it would have been apparent that the information was unlawful. In my view Regulation 19(a)(i) contemplates the absence of knowledge or awareness on the date of publication or, in the words of Regulation 19, on the date on which he would otherwise be liable as a result of his storage of the relevant information. By definition Mr Hilton cannot have been aware of the contents of the 21 June 2007 letter before it was sent and in particular on the dates on which it is accepted by Mr Hilton that there was publication between 9 and 14 April 2007.

The remaining question under this heading would therefore be whether there is a realistic prospect that Mr Hilton might fail to prove that he had neither actual knowledge that the blog was unlawful nor awareness of factual circumstances from which the illegality would have been apparent to him at the time of the publications between 9 and 14 April 2007. On this point Ms Kaschke accepted that there was no evidence before the court to show that in April 2007 Mr Hilton knew that the allegedly defamatory words were untrue. She conceded that there was nothing in the article itself to show that the allegedly defamatory words were untrue. Focusing on the meaning to which she has subsequently been confined by the master this concession seems to me rightly made. There is nothing in the article to show that she was not in fact suspected by the West German authorities to be a member of Baader-Meinhof. As to awareness of facts from which the illegality would have been apparent in April 2007 the high water mark of her submission was that the illegality would have been apparent to Mr Hilton because the Labour party would not have been prepared to consider a Baader-Meinhof candidate. Leaving aside the fact that if this were true it would be by definition equally apparent to all persons to whom the article was published as much as to Mr Hilton, it does not seem to me that this would be sufficient to support a realistic prospect of a finding that Mr Hilton was aware of facts from which it would have been apparent that the allegedly defamatory words were untrue and therefore unlawful.

As a result if, which is not the case, I had held that there is no realistic prospect that Mr Hilton might fail at trial to prove that he is entitled to invoke Regulation 19, I would have held that there is also no realistic prospect that he might fail to prove at trial that he neither had actual knowledge of unlawful activity or information nor was aware of factual circumstances from which it would have been apparent to him that that activity or information was unlawful. As it is, given my conclusion on the first question set out in paragraph 40, my conclusions on this latter point does not assist Mr Hilton in his application to strike out the claim, although in my view the master was wrong to hold that the question of what would reasonably have been observable by Mr Hilton at the time of admitted publication that is to say at the time when comments by readers were added to the posting complained of is not an issue appropriate to be decided on an application for summary judgment.

In the light of my answers to the first two questions in paragraph 40 this question does not fall to be decided. The need to prove expeditious removal arises only where the defendant has actual knowledge of unlawful activity or information or awareness of facts from which the illegality would have been apparent. I have expressed the view that there is no realistic prospect of Mr Hilton failing to show that he had neither state of mind at the time of publication between 9 and 14 April 2007. Moreover it follows from my answer to the first question set out in paragraph 40 that the application to strike out the claim must fail whatever the answers would have been to the second, third and fourth questions.

Again in the light of my affirmative answer to the first question the claim could not be struck out even if there were no realistic prospect of Mr Hilton failing at trial to prove that Mr Gray the recipient of the service was not acting under his authority or control. It is therefore not necessary to answer the fourth question. It is not clear from the terms of the master’s judgment whether he addressed this question separately. As appears above he said that if, as he thought it did, the evidence raised a proper question to be tried as to the extent of the control by Mr Hilton of the content of the information provided it would not be appropriate to give summary judgment upon the defence raised under Regulation 19. Despite the reference to control in that conclusion it immediately followed the expression of his view that it would be for Mr Hilton to show that as a service provider he did no more than store the information in question or no more than facilitate the transmitting of the communication. That was said in the context of the master addressing what he identified as in his judgment the essential question namely whether the activity of Mr Hilton was limited to storage by him as a service provider of information provided by a recipient of the service. To that extent it would appear that his conclusion was confined to the first of the four questions which I have identified in paragraph 40 rather than the fourth.

On the other hand it may be that his conclusion that it is not fanciful that Ms Kaschke could distinguish the case of Betfair on its facts was intended to be an answer to the fourth question: that is say that it was intended to be a conclusion that, unlike Betfair’s customers who made comments in the chat room, it was not fanciful that Mr Hilton might fail to show that Mr Gray was not acting under his authority of control.

It is not immediately obvious what is intended to be covered by Regulation 19 (b). If, as Mr Harris conceded, the words “consists of” in Regulation 19 are to be interpreted as meaning “consists only of”, then as a matter of logic the control whose absence is a prerequisite for a defendant being able to invoke the protection of Regulation 19 cannot be necessarily incompatible with the information society service consisting of nothing more than mere storage of information. Were it otherwise there would be no need for the additional requirement to satisfy the terms of Regulation 19 (b). This would suggest that the kind of control which might disqualify a defendant under Regulation 19(b) is different in kind from the kind of conduct which would result in a finding that the information society service provided went beyond mere storage of information. This therefore might suggest that the focus of the inquiry called for under Regulation 19(b) is on the conduct of the recipient of the service (here Mr Gray) and whether that conduct was controlled or authorised by the service provider (here Mr Hilton), whereas the scope of the investigation on the preliminary question whether Regulation 19 is applicable at all is on the conduct of the service provider (here Mr Hilton) and whether the manner in which he provides the information society service goes beyond mere storage of information.

Support for the interpretation that “consists of” means “consists only of” and that control in Regulation 19(b) is a reference to control of the actions of the recipient of the service as distinct from the control of the content of the information is in my view provided by the language of recital 42 of the E-Commerce Directive. In explaining why the exemptions from liability established in the Directive are limited, recital 42 emphasises that the activity which is covered is of a mere technical automatic and passive nature which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. This also suggests that when considering whether the service consists of storage of information so as to attract exemption from liability it is necessary to demonstrate that the service provider has no control over the information which is stored. The reference to control over the information as distinct from control over the activity of the recipient of the service in recital 42 would also suggest that the control of information is relevant to the prior issue of whether the service goes beyond mere storage and thus support the focus in Regulation 19(b) being on the different issue of control over the actions of the recipient of the service.

I have already held in answering the first question in paragraph 40 that there is a real prospect that Mr Hilton may fail to show that his operation of the web page on which the blog was posted did not go beyond mere storage of information, which he would have to show to invoke the protection of Regulation 19. On that interpretation of Regulation 19 the relevant question in considering Regulation 19(b) would be whether in posting the blog on Mr Hilton’s web page Mr Gray was acting under the authority or control of Mr Hilton.

There was no evidence before the court to support any possible finding that in posting the blog Mr Gray was acting under the authority of Mr Hilton. As to control, I have already referred to the evidence as to the circumstances in which Mr Hilton said that he on occasion intervened in individual blogs, albeit he said that he did not intervene in the case of Mr Gray’s blog. Although the focus on this interpretation of Regulation 19(b) would be on Mr Hilton’s control over Mr Gray rather than over the content of the blog, it still seems to me that having regard to some of the evidence to which I referred in answering the first question that even if there was no realistic prospect of Regulation 19 not being held to be potentially applicable there would still be an issue to be investigated at trial on the question of control.

It is necessary to consider what the position would be if the interpretation of “consists of” referred to above and conceded by Mr Harris were wrong. In other words what would be the position if a service provider who stores information is not precluded by the opening lines of Regulation 19 from claiming exemption by virtue of the fact that in addition to storing the information he carries out additional activity in relation to it. In my judgment on that interpretation, having regard to the terms of recital 42, Regulation 19(b) would have the function of confining the right to claim exemption from liability in such a way as to comply with the terms and purpose of recital 14. On that view the focus of inquiry called for under Regulation 19(b) would be broader than I have suggested and might well include the question whether the service provider controlled the information stored. On that interpretation of Regulation 19 for the reasons which I have given in answering question (i) in the affirmative I would also answer question (iv) in the affirmative by parity of reasoning and accordingly still conclude that there is a realistic prospect that Mr Hilton may fail to make good his Regulation 19 defence and thus that the claim should not be struck out.

For theses reasons, which differ in part from those of the master, in my judgment there is a realistic prospect that Mr Hilton’s Regulation 19 defence may fail at trial. Accordingly in my view the claim could not properly be struck out and the appeal fails.