The English Are Different

A recent UK libel case highlights some differences between US and UK law — differences that are very significant for ISPs.

by Patricia Fusco ISP-Planet Managing Editor [April 6, 2000]

In the US, it is very difficult to sue for libel, and courts have generally not held ISPs responsible for inaccurate, defamatory information e-mailed through their networks. The issue was raised as early as 1993, as this Internet World article shows. A more detailed article is called "Federal Immunity for Online Services: How It Works and Why It Is Good Policy." It basically says that US courts have recognized that ISPs are not newspapers and are not reponsible for the content sent through their pipes.

The UK's libel laws differ significantly from the US libel laws. One UK ISP has already lost a case.

Physicist Laurence Godfrey used a fraudulent e-mail post that contained obscene and defamatory material about him to sue Demon Internet U.K. for libel in May 1998.

Dr. Godfrey won his case against Demon and the firm agreed to pay Godfrey £15,000 along with £250,000 to cover his legal fees. In the U.S., the same e-mail post would have been considered simply poor e-mail Netiquette.

Reasonable Care
Under English Law, an Internet Service Provider is not held as the publisher of defamatory material providing it satisfies two legal benchmarks. First, the ISP must prove it took reasonable care to ensure such material was not published. Second, once alerted to a problem, the ISP must take steps to resolve it.

Godfrey proved that he asked Demon to remove the message but that the ISP refused to take action. The message was eventually copied to its servers and distributed around the world in newsgroups.

Although discussion forums are often full of robust, forthright and even offensive opinions posted by individuals, the case hinged on whether Demon could be treated as publisher of the material.

By settling the case out of court, Demon Internet affirmed that ISPs are publishers and liable for the Internet posts they carry, at least until new libel laws can be delivered from legislators.

The settlement follows the ISP's inexplicable failure to appeal a pre-trial ruling last June, which determined that Demon could not use "innocent dissemination" as a legal defense.

How British Libel Laws are Different
U.K. libel laws are biased in favor of the prosecution. Internet Freedom reports that only one-in-ten libel defenses are successful in the U.K. Demon's chances of successfully defending its case were slim at best.

Unfortunately, the Demon case will affect other ISPs, nearly all of which host newsgroups. ISP owners and operators fear they could become liable for offensive material which millions of their collections users may write. Demon has already changed its abuse procedures as a result of the Godfrey libel case.

The outcome of the lawsuit means that the assumed responsibility of U.K. ISPs will be the opposite of their US counterparts. The U.S. District Court of Eastern Virginia recently threw out a libel case against America Online on the grounds that an ISP could not be considered the publisher of statements made by its customers.

If U.K. ISPs become responsible for monitoring all the material trafficking through their system, the consequences for free speech on the Internet would be devastating. The likely response from most U.K. ISPs who could not afford to fend off libel suits would to be to remove all controversial content upon request.

No Freedom of Speech, No Internet
The Internet could lose content ranging from obscenities, profanities, and vulgarities to philosophical concepts like freedom, liberty, and democracy.

Certain issues tend to provoke emphatically stated responses. Individual opinions held about religion, politics, sexual preference, and other diverse topics are part of the perpetual beauty of the Internet.

Balancing free speech rights with libel damages is a challenge of the new century. But the U.K. decision surely lapsed into blunder when it chose to shoot the messenger. Perhaps U.K. ISPs can remedy the situation by immigrating to friendly terrain before the tsunami of libel suits begins.

Thus plc, parent company of Demon Internet voiced similar concerns when it said:

Thus remains convinced that the law has not kept pace with the development of the Internet and will work with our colleagues in the industry to lobby for modernisation of the law.

Thus will press the Government for recognition that ISPs should not be liable for the millions of items carried on the Internet every day.

While we take our obligations very seriously, and act when informed of any defamatory or unsuitable material, it is contrary to common sense to make ISPs responsible for the millions of items carried on the Internet.

Related Articles
According to this article, some sites have already been shut down in response to the Demon Internet decision.

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