Free speech caught in the Net?: Users of Internet are accustomed to voicing their opinions freely and robustly. Now a libel action is threatening to subdue them. Ian Barnes reports

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The Independent Online
Ever since the computerised 'network of networks', the Internet, began life 25 years ago this month as a US Defense Department project, truly free speech has been seen by its users as one of its greatest assets. Night after night, a majority of the Internet's estimated 40 million users log in and begin to chat, read documents and download files in the electronic dimension known as 'cyberspace'. The conversations are often uninhibited: software has been dissected, sometimes scathingly; people have been criticised for things they have allegedly done or said; and companies have been scrutinised for suspected bad practices.

It is this kind of free-and-easy discourse, available to millions at a keystroke, that has led Internet to be acclaimed as a 'true democracy' of our electronic age. But now the law is catching up with this so-called 'unregulated' technology.

Five months ago an American journalist called Brock Meeks investigated a commercial solicitation sent out over the Internet for something called the Electronic Postal Service. On the Internet he criticised, in outspoken terms, the business practices of Suarez Corporation Industries, a giant mail marketing company in Ohio, which, he alleged, was associated with the offer.

Mr Meeks is a reporter for Communications Daily, a trade newsletter in Washington, but by night, as bedroom modems across the US begin to screech their dialtones, he publishes an Internet newswire service called Cyberwire Dispatch. 'I wrote all this up in a rather opinionated and pointed Cyberwire Dispatch, which is my usual way of doing things,' he says.

Suarez Corporation Industries did not follow the usual custom of responding to a piece written on the Net by posting their side of the story back to the electronic 'bulletin boards' and starting a debate. Instead it initiated a libel action against Meeks. It was believed to be the first such action in the US.

Now something similar is happening in the UK. A London physicist, Dr Lawrence Godfrey, has issued a writ against another scientist, in Switzerland, for alleged defamatory comments made on the Internet last year. He is also threatening to issue a writ against a group of Canadian universities.

Few lawyers doubt that the courts will find that some of the postings on the Internet, or messages that appear on bulletin boards, are libellous. Simon Gallant, a partner from Mishcon De Reya, a legal firm specialising in libel law, believes this will lead to problems for ordinary users of the system. 'People could find themselves exposed to very costly libel actions in many jurisdictions and at the end of the day find themselves with huge damages awards against them. Ultimately that could lead to their bankruptcy.'

So what happens if, after a heavy night on the keyboard chatting on the Internet to friends in Alaska and Tokyo, you wake up to find that a libel writ has popped through your letterbox along with the gas bill and the morning paper? Well, there are the established defences of justification (ie, it was the truth) and fair comment. But considering that a yacht designer and his company were awarded almost pounds 1.5m in libel damages last month after the magazine Yachting World criticised their boat design, you had better have pretty good evidence that the software you denigrated the night before is as bad as you made out.

It is not only you who may be facing huge legal bills to fight the case. Gerard Tyrrell, a partner with the law firm Harbottle and Lewis, says: 'I might decide that you as an individual are not worth much money and therefore not worth pursuing. I could look, using English law, at the distributor, to work out if there's rich pickings somewhere else down the line.'

That is bad news for Internet providers such as Cix, Demon or the BBC Networking Club, and possibly for employers and universities which allow their employees or students to wander around the Net making potentially libellous comments from their system.

So what has brought about this tightening of the reins? Some believe it is due to the vast number of new users wanting to get into the Net (around 400,000 a month globally). Some of these are seen as having no respect for the way things have worked on the Internet for the past twenty-odd years.

The sheer size of the Internet and its global nature may mean that enforcing judgments and obtaining damages from someone in another country would not be practical. As for Mr Meeks, the company taking action against him is in his homeland. The defences governing libel in the US are different from those in England, but whichever way the case goes, the result may be referred to in later cases worldwide.

Mr Meeks says: 'I don't think it's the end of democracy and free speech (on the Internet) but I do think it has the potential to have a very chilling effect on this kind of open and free discourse. If you're going to shoot off your mouth, don't aim for your foot. I'd advise people to think twice about the tenor of their comments and to make sure they have all the facts in a row before they fire off on the keyboard - but I certainly wouldn't want to discourage anybody from making a pointed comment or saying something critical.'

Ian Barnes is a reporter and researcher on the BBC Radio Five Live programme 'The Big Byte' (Sundays, 12.15pm). He can be reached by electronic mail on 'big-byte@bbcnc. org. uk'.