Demonic liability

Internet

Should libel be allowed on the Internet? The answer, traditionally, has been that this is a bloody stupid question, since nothing can be done to stop it. Quite a lot of people welcome this state of affairs. Others deplore it. Now a London judge may actually have done something about it and the implications are really rather horrible, whichever side wins.

Laurence Godfrey is a physicist in London with a knack of irritating people on Usenet. In the words of Mr Justice Morland, in the High Court, confronted with a bundle of 80 messages apparently from Godfrey: "It could well be submitted that these postings are puerile, unseemly and provocative. In effect, they invite vulgar and abusive response." Such a response is undoubtedly what they got, and it would appear that some of those responses were libellous. So far, so normal. The whole point about Usenet, in many people's eyes, is that you can say what you like out there.

But Godfrey sues, which is unusual; and sometimes he wins, which is extraordinary. Three years ago, he won the first Internet libel case in Britain, about comments made by another physicist. But that time he sued the physicist in question. Now he has gone one better, and sued Demon Internet for transmitting a message that he claims was defamatory in a Usenet discussion about Thailand. The message was apparently posted by a Canadian pretending to be Godfrey, who is a regular on the discussion group. What frightens many people is that neither the Canadian nor Godfrey are customers of Demon Internet, whose role in this appears to derive from their status as the largest British-based ISP.

The established defence for ISPs like Demon has been that they are no more responsible for what comes down their wires than BT is. You couldn't sue BT for libel even if I used its lines to fax a defamatory statement about you. But Usenet is different, for an important technical reason which an earlier High Court judgment spelt out. The titanic flood of messages on Usenet far exceeds the capacity of any one person to read. Since Demon and other ISPs cannot be expected to read all the messages they carry, it seems unfair to hold them responsible for the contents of any of them.

This is true, perhaps, of e-mail or of items on the web. But the millions of messages that constitute the Usenet system do not flow directly from the writers to their readers. Rather, they are held on hard disks at Demon and other news servers and accessed by readers as they wish. In effect, they are constantly retransmitted, at least for a week or ten days or until the disks fill up and fresh messages take their place. And if an ISP has been warned about the content of one of these messages, it can no longer claim ignorance. In effect, by making a decision to leave the message on its hard disks for users to download if they want to, it is publishing them rather than merely transmitting them.

That is the point of principle that has allowed Godfrey to sue Demon for a message which it did not write and which may not have been libellous at all in the country it was written. I don't know, I haven't seen it. But clearly there are messages that would not be libellous in California and yet are potentially expensive here. The Demon case terrifies people because it suggests that the omnipresence of American standards of free speech, which lend the Internet so much of its charm, is only an illusion.

In theory, an ISP which has been warned that some of the material it is carrying is potentially libellous will have to inspect it and make a judgement. In practice, then, everything that looks in the least bit dodgy will be thrown overboard. It's hard enough to get companies to stand up for their own opinions; it's quite unreasonable to expect them to stand up for other people's.

Everything will end up as stodgy as print and this will be a real shame. For we already have print, with all the benefits and costs of legal regulation. In a new medium it was fun to pretend that none of these constraints applied. It fitted, too, the intimate, uncensored pleasure of typing at a computer screen. You could say what you liked, and if it was worthless, it would be forgotten in moments. If it were profound it would be forgotten in moments, too - but that's showbusiness, or possibly journalism.

Those in search of something less ephemeral should go to http://www.courtservice.gov.uk and search there for Demon Internet.