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07 Feb 11:14

Adventures in libel (or why I won't read your forum)

All internet providers in the UK would probably agree with me when I say that Dr. Laurence Godfrey is ... a man. With a beard and glasses. The legal precedent of his 10-year old court victory against Demon Internet is still the most notable "chilling effect" on free free speech in this country, and one which causes us service providers to turn censor on a regular basis.

What his case established was that Internet Service Providers can be held jointly responsible with their customers for any libellous statement posted on their customers' web sites. When a solicitor is seeking compensation for libel on the server hosted in the UK, he can bypass suing the author of the libel, and instead threaten the owner of the computer on which the libel is hosted, usually a more risk-averse target.

What happens with us typically is:

1. a solicitor sends Bytemark a letter (and email, and fax, and telegram, and carrier pigeon usually) stating that a statement at a particular URL is libellous to their client, Mr Bastard. The letter usually states that we are "on notice" of a libellous statement, and that we must remove it or face the consequences;
2. we find out which of our customers' servers is hosting the statement offending Mr. Bastard, and contact them. We ask them to either take it down immediately, or indemnify us against legal action with an initial deposit of £20,000.
3. we use our support system to put the customer in touch with the solicitors, sometimes with Mr. Bastard too, and words are exchanged. The offending page usually ends up being taken down, often with reference to Arkell v Pressdram.

Even where our customer wanted to face the complainant in court, the precedent acts as a libel costs "amplifier" - for us to not take down their site immediately, we need indemnifying against the costs of our own defence, and at a much higher price than the customer might choose to spend on their own. So rather than go to court, any statement that has the sniff of libel about it can be taken down, almost immediately, without any questions. That is very definitely a "chilling effect".

I don't believe that people should have a free pass for internet libel. An malicious comment, however obscurely published, can be picked up by a search engine as a match for someone's name, and be as devastating a publication as the front page of The Times. And I would not object to complying with a court order to reveal the identity of one of our customers, in order that legal action could be brought against him directly.

But more recently, threats of libel actions are getting sloppier, and after some advice, we had to draw a line in the sand. At Bytemark, we have a policy of asking for the URL of a libellous statement before we demand action from a customer. During a discussion in 2008, when a complainant repeatedly refused to supply URLs of libellous statements against him on a particular message board, he asked, exasperated:

Without our checking every hour, how do we know what has been posted? The moment a comment is posted it immediately causes damage to our companies professional reputation. We do not have the resources to put a full time member of staff at a desk to check the hundreds of posts every hour, and why should we?

And in a later email:

...it is not our responsibility to check this site each and every day and read every single post to check for defamatory content.

To which I innocently answered: it's your reputation, not ours. If the libels are not so serious that you can't identify them all, how do you expect us to. Are they really so serious and urgent if you can't?

While that complaint didn't even to go a solicitor, we were recently threatened with court in a similar situation. The solicitor gave us 3 URLs by way of example, but when these were removed within 2 hours, advised us and our customer that:

[it is] our clients' position is that it is now your obligation to ensure that no similar posts remain or are allowed to be published in the future. Accordingly, it may be easiest for you to either remove the discussion threads in their entirety (and any others which come to be posted in the future) and/or block access to the posters responsible for the defamatory comments.

So, wait... now that you have told our customer that there might be someone libelling you in future, they must make sure it never happens? And if they don't, the ISP will have to defend themselves as if we'd written it ourselves?

The message seemed clear: drop this customer, or we'll make trouble in an area of law notoriously favourable to claimants. We were given a deadline for court action, and after years of armchair defence, engaged libel experts Carter-Ruck to find legal defence in my indignation.

The bad news: internet hosting providers will likely remain "publishers" in common law thanks to Godfrey's precedent.

But Carter-Ruck found two strong defences from this shaky start. Firstly, Section 1, Clause 1 of the Defamation Act 1996 predates legislators consideration of the internet. It states that a person has a defence against defamation under certain circumstances, which hinge on whether the person is the "publisher". But it goes on to define publisher as "a commercial publisher, that is, a person whose business is issuing material to the public". From that definition, publishing is not our business, though I'm not clear how this interacts with the Common Law precedent.

Secondly, section 19 of the Electronic Commerce Regulations 2002 is a lot more specific, and states that (heavily elided, but accurate):

Where ... [hosting] ... is provided ... the service provider ... shall not be liable for damages ... where the service provider does not have actual knowledge of unlawful activity or information and ... upon obtaining such knowledge or awareness, acts expeditiously to remove ... the information.

That is a blanket exemption for us hosts service against any liability for content we host, providing we didn't know about it first. And it has been validated by Karim v Newsquest 2009 when the defendant took down allegedly-libellous user comments the day they received notice of their presence.

But my main worry was the vague notification, the expectation that we (or our customer) should have to monitor and quickly remove future posts that might be libellous. Again, we are advised we're on strong ground in demanding URLs before we can take action. A detail of Metropolitan International Schools v Google 2009 is interesting. This plaintiff demanded that Google remove not just current, but future libellous extracts contained in their search results. Google's barrister put forward that:

it is practically impossible, and certainly disproportionate, to expect [Google Inc.] to embark on a wild goose chase in order to determine where the words complained of, or some of them, might from time to time 'pop up' on the Web.

And the judge agreed; Carter-Ruck think that this is a strong indication that supplying URLs is the minimum amount of information needed for a service provider to take action.

Joined up, those points ought to a strong defence against hand-waving defamees; people who expect us to monitor their reputation for them without providing specifics. While it's untested, the narrowest possible precedent I could see coming from a libel victory is a pretty horrific one for free speech.

Rather than just take down individual statements, ISPs and message board admins who are "on notice" would be forced to implement moderation, and a blanket ban on mentions of Mr. Bastard, and solicitors' notices would have an enormous cost to the recipient, even without any court action. As ISPs would remain jointly liable, they too would have to ensure that moderation of discussions is effective, and would have to oversee this process. The additional costs would be passed on to the owner of the board. Of course the upshot would be that unmoderated message boards would likely close rather than bear the bureaucracy imposed by a simple solicitors' letter - a letter which would have to specify no more than the allegation of libel.

I don't see how any judge could bring this on the ISP industry, but then no ISP expected the Godfrey precedent in 2000 either. And we won't be sure until somebody risks half a million pounds on finding out.

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