This article first appeared in the May 2000 edition of Webspace Magazine.
The libel action brought against Demon Internet has sent a wave of unease through the ISP community in the UK. In deciding a pre-trial ruling, a High Court judge applied a long held principle of English law that the publisher of a libel is culpable along side the author of the libel. In the print publishing world, this liability can even extend to the printer of the work.
While this might appear draconian, the problem could be even more acute in respect of the Internet. Print and other electronic media are generally moderated channels of communication, where a team of professional content creators and editors are trained to recognise and avoid potential legal problems. While the core content of a website can be subject to the same controls, publicly accessible areas are difficult, if not impossible, to police.
Demon Dilemma
In the US, the Constitution protects the right to free speech, and this is regularly relied upon as a defence in these matters. No such equivalent is available in English law, with the consequence that defendants have to rely upon one of a range of standard defences to an accusation of libel.
In the demon Internet case, none of these was available, with the company's application relying on the defence of ‘innocent dissemination' (ie like the Royal Mail carrying a defamatory letter unknowingly) being thrown out at a pre-trial hearing before Mr Justice Morland.
The facts of the case are revealing. It has been suggested that physics lecturer, Laurence Godfrey, the plaintiff, is conducting a personal crusade to ensure that libel laws are applied to the Internet. He argued that he had repeatedly asked Demon to take action over defamatory statements posted on a newsgroup.
Godfrey sent a number of faxes to Demon complaining that a number of claims, posted in January 19997 and purportedly attributed to him, were obscene and untrue. Demon did not take action to remove the statements from its server, and did not respond to a letter of complaint.
Complications
Things settled down until July 1998, when further postings on a different newsgroup made further defamatory claims. As with the previous incident, Demon did not respond to Godfrey's complaints. With Demon failing to take action, Godfrey took his case to court, where his lawyers were successful in countering the ISP's defence of ‘innocent dissemination'. This is available under the 1996 Defamation Act, which provides that:
"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) that 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 caused or contributed to the publication of a defamatory statement."
The legislation was drafted before an effective ISP lobby was in place to draw attention to the special situation created by the Internet.
The effect of the Demon Internet case has been effectively to reclassify ISPs as publishers, rather than providers of telecommunications services. In an apparently contradictory justification of the decision, Mr Justice Morland seemed to agree that he did not believe Demon to be the publisher of the defamatory statements, but that the act of transmitting defamatory statements in response to a request from a newsgroup subscriber constituted ‘publication'.
The judge went on to say that Demon could not rely on the defence of ‘innocent dissemination' because Godfrey had alerted them to the problem. This is an important point, because it would suggest that while there is no general liability on the part of ISPs for defamatory statements, the situation changes once the ISP has been put on notice by a complaint.
Question of Control
The critical point for the judge was one of control. Demon could have removed the offending material at any point, once Godfrey's complaint had been received. Instead, the company relied upon the automatic purging of newsgroup messages after 14 days.
Godfrey received £15,000 in damages and received an apology from Demon for failing to take action about the original postings.
This is nothing in comparison to the potential costs to the industry of policing the content of their sites - and any future litigation should something defamatory slip through the net.
Backing Down
Demon Internet was given until 14 June to appeal against the adverse pre-trial ruling, but has announced it is unlikely to do so. Nobody can blame the company for not wanting to take on the responsibility of fighting the cause on behalf of the industry. Litigation would be costly and disruptive, since the next step would be to take the case to the Court of Appeal; potentially the Lords and perhaps even the European justice system.
Like others in the industry, Demon is hopeful that the forthcoming ecommerce legislation will adopt a European Union directive that protects intermediaries against action of this kind. Campaigners argue that the new legislation should embody the principle of reviewing contentious material in the courts - and that any mandate to remove material from a server should be presented in the form of a court order.
As things stand, for the present at least, ISPs have to be extremely careful to respond to complaints of defamation. A failure to act could mean that the defence of ‘innocent dissemination' cannot be relied upon in the event of a claim, leaving the door wide open to all sorts of claims.
The Defamation Game - by Swarbrick & Co, Solicitors (www.swarb.co.uk)
The law of defamation is extremely complicated. Rely upon nothing you read here without first taking direct advice on your particular problem.
Having said that, everyone is a fully fledged expert of defamation - we all know ‘Just say No'. Neither encourage actions against you nor, ever, begin a libel action.
Defamation protects reputation, nothing more. Words are defamatory if they tend to reduce the reputation of the claimant in the minds of right thinking members of the public. Words are frequently both defamatory and true.
A claimant must show:
1. Defamatory words (in the relevant and particular context)
2. Were published (ie somebody other than the claimant and defendant saw the words)
3. Causing damage to reputation. The claimant must have a reputation capable of being damaged. This can limit claims by companies, larger groups, and public authorities in different ways.
A defendant may by way of answer establish that:
1. One of the essential elements is absent
2. The defamatory words are true in every respect
3. Some other reason protects the publication in law. This may be some form of privilege (such as parliamentary or judicial) or innocence.
4. A suitable offer of amends has been offered.
There are two subspecies of defamation: libel and slander.
1. Libel - when the defamation is written down (including, most particularly, electronically)
2. Slander - where the incident relates to spoken words.
In general, mere abuse is not defamatory, but it can take a very clever person to insult another without straying over the line into defamation.
The better the insult, the closer to the edge.
------------------
Happiness is a warm L1011