"If someone insulted you in a pub, would you sue the pub owner for housing the defamatory remark?" This was the question posed by a spokesman for Demon, the Internet service provider, (ISP) when a judge said in a preliminary ruling last year that it could not escape responsibility for a libellous posting on an Internet bulletin board on the basis that it was merely an innocent disseminator of information.
Yet the post office is not responsible for defamatory letters and telephone operators cannot be blamed for defamatory faxes. So why should ISPs be treated differently?
This question was thrown into sharp focus by the recent settlement of the libel case brought by Dr Laurence Godfrey. Demon apologised for not removing the posting and paid damages and costs estimated at £250,000. Although it does not create new law, the settlement is bound to have a chilling effect on freedom of speech on the Internet.
One of the frequent claims made for the Internet is that it is the ultimate medium of free expression. Anyone, anywhere, can post anything to the whole world. The problem for anyone libelled by such posting is that the author might be anonymous or in some remote country where suing is impractical.
These bulletin boards are replicated in the computers of ISPs around the world, where they can be accessed by that ISP's subscribers. So one obvious answer for someone who believes he has been libelled is to target his local ISP, a convenient "deep pocket". In the US, thanks to the First Amendment, both courts and government have taken action to protect ISPs. Not so here.
The Demon case concerned an anonymous posting to a US newsgroup, soc.culture.thai, purporting to be from him, that was, in the words of the judge, "squalid, obscene and defamatory". Godfrey sent a fax to Demon's managing director telling him that the posting was a forgery and asking that it be removed. It was not removed, however, but remained on Demon's computers until it expired about 10 days later.
In its preliminary ruling, the court decided first that Demon was a "publisher". Unlike the post office or the telephone operator, Demon did not play a merely passive role. It chose to receive the soc.culture.thai postings, to store them, to make them available to subscribers and to obliterate them every so often.
Because of Godfrey's warnings, Demon could not rely on the statutory defence of innocent dissemination. It could not show that it took reasonable care and that it was unaware that it had contributed to the publication of the defamatory posting. On the contrary, Demon knew of it but did nothing about it.
In a little-noticed move some months after the decision, Demon dropped its appeal on the question of whether it was "an innocent disseminator". This was apparently because it was worried that the High Court decision might be replaced by a stronger Appeal Court decision. This could, it said, adversely affect proposed laws in the UK and EU dealing with the issue.
In fact the UK government's E-Commerce Bill does not address the point. The proposed draft EU E-Commerce Directive does, but it appears that under this ISPs are also on the hook if they find out about defamatory material and then do nothing.
After the court ruling, there was some concern that ISPs would have to start monitoring contributions to bulletin boards - a mammoth task given that millions are apparently posted every day.
In fact, this is not what the decision required. The real point is that ISPs have to respond rapidly to complaints, having been cast as defendant, judge and jury. But how are they to judge what is defamatory? If they have to play this role, they should at the very least only be required to act where the defamation is blatant (as was clearly the case here).
Demon's view was that the court ruling opened the way for scurrilous and unsubstantiated claims that could kill freedom of speech on the Internet. Alarmed by the amount that Demon has had to pay, ISPs are likely to pull bulletin-board postings in response to the slightest objection.
The same may apply to websites (although here it is less likely that ISPs would be legally liable because their role is more passive). A few months ago another ISP closed down a website containing offensive comments about judges. But the operator, Mr Hulbert, then said that he had since put all the material on to another website, a US freeserver. "I have a choice of 30 other sites if I need them, so they'll have a job to close me down."
So, ultimately, such attempts to use of the law to suppress free speech on the Internet may turn out to be futile.
Adam Taylor is a partner of Withers solicitors