Are ISPs Content Police or Innocent Bystanders in Libel Cases?

Libel: a defamatory statement—written or oral—published without just cause. Free speech: embraced by most democratic countries as the apex of individual human rights. When these collide, censorship and litigation abound.

by Patricia Fusco ISP-Planet Managing Editor [June 23, 1999]

Two different libel cases in two different democratic countries have produced frightening ramifications for free speech proponents and ISPs. Can an e-mail insult really cause injury? According to U.S. and London courts, the answer is Yes.

Late last month, a federal district court in Alexandria, Va., ruled that AOL members could be hauled into a Virginia court to answer for lawsuits, no matter where they live under the legal guidelines of the state's long-arm statutes.

In the case of Bochan v. La Fontaine, Judge T.S. Ellis said because the Texas defendant used his AOL account to post an allegedly libelous message to a Usenet group, the e-mail must have been stored temporarily in AOL's Usenet server in Virginia, before it was distributed to other servers.

The determination means that using an AOL server to facilitate distribution of defamatory messages authorizes Virginia's courts to bring out-of-state defendants to trial. According to the court papers, Bochan alleged that in some of their messages, the La Fontaines accused him of being a pedophile. A lawsuit for defamation and intentional infliction of emotional distress ensued.

Arms of the law are long indeed
The Virginia long-arm statute has extended its jurisdiction over AOL members worldwide. Should other states interpret long-arm statutes in the same manner, libel procedures may some day shut down Usenet new groups altogether. At your ISP, a mail server may be used in evidence while libel claims clog courtrooms throughout the U.S.

As if the ramifications of the Virginia decision weren't frightening enough, a U.K. ruling may further shatter the innocent bystander status of ISPs.

Laurence Godfrey v. Demon Internet first came to London's High Court of Justice in April this year. Godfrey served a writ on Demon Internet in Jan 1998 regarding an allegedly forged message posted at an Internet newsgroup in which, Godfrey claimed contained damaging allegations of a personal nature.

Demon's defense utilized the Defamation Act of 1996, which was intended to provide some protection for ISPs in libel suits. The Honorable Mr. Justice Morland ruled that Demon Internet could not use "innocent distribution" as its defense in the case.

A number of recent reports erroneously interpreted Demon's decision not to lodge an appeal on the innocent distribution point of law as the conclusion of the libel suit. That's not the case, no conclusion has been reached.

No shelter for innocence
The ruling may have short-term implications for ISPs' ability to use the innocent distribution defense in the U.K. In the meantime, Demon maintains that it is absolutely imperative that content liability be addressed within pending U.K. e-commerce legislation and the government's compliance with the Economic Union Directive.

U.K. government officials have recognized the importance of the legislation and prioritized the passage of the e-commerce bill through Parliament. The bill should go a long way to settling the issue of content liability as it pertains to ISPs in the U.K.

The Internet is a robust medium that grants individuals the power to say anything they please to nearly anyone, anywhere in the world. Rightly or wrongly, it is tarnished with a reputation for fostering hate crimes, bigotry, and lewdness that reflects on ISPs. But how is it that ISPs are being held accountable for such objectionable material?

Have you ever heard of a phone company being sued because of a heavy breathing call? No, because the communication takes a sender and a receiver and the receiver can always hang up.

Would you sue the post office for delivering your teenage son that girlie magazine he ordered? No, you'd take it up with your son and the publisher.

Is the evening news too disruptive of your gentle nature? Don't bother trying to sue Dan Rather. He doesn't make the news, he simply delivers it. If you don't like the news, then don't watch it.

Practical remedy
By these examples of well-established legal reasoning, doesn't it follow that if a particular newsgroup has lost its focus and you find yourself disagreeing with participants, that the obvious course is to opt-out and avoid saying something you might regret, or reading something that may offend your sensibilities?

What is the logic of blaming ISPs for delivering unsolicited emails, profane newsletters, bad news, or naughty newsgroups? Why shoot the messenger?

Right now ISPs are innocent bystanders distributing messages for people that desire to use their service. If those same people want to hold ISPs legally responsible for libelous posts, then to protect themselves ISPs will have to read, filter, and review every single message emanating from their networks.

The only way that an ISP could reasonably be held accountable for email content delivered by their systems is if they were to explicitly take on the role of email censors. The likelihood that users want ISP Police monitoring their every word, however, is slim.

For the foreseeable future, then, stick and stones may break bones, but names over the Internet may well bring litigation. Unless there's a dramatic change in the legal climate surrounding issues of Internet-based libel, free speech seems doomed.

—End

Related Articles:
Ruling Has AOL Members On Alert
Godfrey v Demon The E.U. Directive
Survey: Users Blame ISPs For Spam
EFA.ORG Australian Net Censorship Legislation 1999

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