The ISP, Demon, have been having a bit of a hard time recently. They were the innocent victim a libel claim from the dubious Laurence Godfrey. The only link to Demon was that the supposed offence was made via Usenet which then found its way on to Demon's
server. Things have got worse for Demon as they now feel that they must remove even articles that link to the supposedly offensive piece on other news servers. This has meant suspension of their own customers accounts. It doesn't say much for British justice
when people are blamed for libel who have nothing to do with the writing and have no practical control over content.
Demon made the following statement under the constraints of commenting upon an ongoing court case.
Dr Laurence Godfrey served a writ on Demon in January 1998; since then the case has progressed as normal. In advance of the full trial, judgements on preliminary points have been given by the Hon Mr Justice Morland. Information about recent court judgements
of general public interest may be found at www.courtservice.gov.uk
Demon's defence included the contention that they were not at common law the publishers of the Usenet posting defamatory of the Plaintiff. And that even if they were, there is material upon which they can avail themselves of the defence provided by
Section 1 of the Defamation Act 1996,
a modern equivalent of the common law defence of innocent dissemination
The judge concluded that:
In my judgement the defamatory posting was published by the Defendants and, as from the 17th January 1997 they knew of the defamatory content of the posting, they cannot avail themselves of the protection provided by Section 1 of the Defamation Act 1996...
The judge's conclusion means that the law at present says that once a defamatory article is known to an ISP, unless the article is removed from the ISP's servers, then the ISP becomes liable as a knowing publisher of the article. Like it or not, this
is the state of the law in England & Wales at present.
On 26 March 1999 Demon issued a statement:
The ruling, if not reversed on appeal, will have a widespread impact on the whole Internet industry and its users in all areas including freedom of expression and electronic trading. Complainants may be able to force ISPs to police and censor any item
of information on their servers. The way is opened for scurrilous and unsubstantiated claims that would undoubtedly curb the freedom of speech by Internet users.
Recent Problems in News
In late May a small number of Demon users posted articles which contained a URL for an article stored in the US-based Deja News archive of Usenet articles. A few posted the URL directly, others managed to do so by quoting a previous article. The referenced
article on Deja News quoted the text which is at the centre of the court action mounted against Demon by Dr Godfrey.
These articles came to Demon's attention. It is our legal advisors' opinion, obtained at no small expense, that a reference to defamatory material itself may in some circumstances be a form of publication.
This may appear unbelievable, but we believe our advisors and we believe it to be the case.
We have seen it suggested, by people who are apparently not experts, that because the World Wide Web contains a dense mesh of references, then almost any URL might eventually lead to something defamatory, and so (in a reducto ad absurdum argument)
almost any URL must be defamatory. This misses the point. Whether a given reference was defamatory would be a matter of fact for a jury to determine. In making that determination the jury would have to consider what was in the reader's mind when they saw
the reference. What a jury would make of any given reference is hard to say, but lawyers are paid to be experts on a jury's likely view.
In the context of an ongoing case Demon felt it was prudent to act swiftly and thoroughly. Following Mr Justice Morland's ruling, prudence meant, to our regret, deleting these articles from the Demon servers as and when they came to our notice.
Note that in doing this Demon makes no statement about whether the articles removed were or were not in fact defamatory.
Suspending News Posting Access
Unfortunately, in the context of the ongoing case, simply removing the articles (as regrettable as that was) might not fully cover Demon. There might be a risk of related articles being posted by the same customer.
To be entirely sure that its position was not compromised, inadvertently or otherwise, Demon decided to temporarily suspend access to News article posting for all dial-up accounts controlled by those customers whose articles we had deleted from our
The final piece of the puzzle was a means for Demon to be reasonably assured that each customer would post no further articles likely to require removal. A formal undertaking was prepared and sent to the customers in question asking that they do not
post any defamatory material in future. On receipt of that undertaking access to News posting would be re-enabled.
The undertaking requested that the customer confirm that they understood: the consequences of posting defamatory material; the liability they might have and the liability that Demon might have if they did so; and, finally, that should they breach this
undertaking, Demon could seek to recover costs incurred following such breach.
Understanding that the affected customers were less than happy with our scrupulously cautious approach to the matter, we took steps to contact each by phone to explain the position and to express our regret at the particular circumstances of the ongoing
Note, again, that in doing this Demon makes no judgement about whether the original articles removed were or were not in fact defamatory.
The Current Position
Some of the customers who were asked for an undertaking, signed it and were reinstated. Others were unable to do so.
Prudence continues to dictate that Demon reasonably assures itself that the risk of further potentially problematic articles, related to the ongoing case, is minimised.
Demon deeply regrets the course recent events have taken and that any of these actions proved necessary.
The state of the law places the ISP in an invidious position of either risking liability over matters it has no interest in or understanding of, or having to err on the side of safety and remove articles which come to its notice.
The result is neither satisfactory for Demon, nor for its customers.
State of the Godfrey Case
Demon Internet continues its campaign in the interests of Internet users to ensure freedom of speech and an appropriate legal framework.
Demon has decided not to appeal Mr. Justice Morland's conclusion (paraphrasing) that whenever a subscriber accesses a defamatory statement in a newsgroup the ISP is legally a publisher of that defamatory statement.
A number of recent reports mistakenly interpreted this decision as the conclusion to the libel case brought by Laurence Godfrey against Demon. No conclusion in the case has been reached. Demon Internet continues to fight the case, and is confident
of winning it.
The coming Electronic Commerce Bill and the EU Directive on Electronic Commerce will both touch on this issue. In this context, an appeal of the basis of the current law would not be useful:
- were the appeal to fail then:
a. the current 'First Instance' decision, which is not binding on courts at the same level or on higher courts (leaving the way open for other Judges to take a different view in future), would be replaced by a stronger Appeal Court decision.
b. not only would this be unhelpful generally, by discouraging Judges from examining the individual circumstances of other cases, but it could adversely affect both the Bill and the EU Directive.
- were the appeal to succeed, then the effect could be short lived as the precedent is overtaken by specific provisions in the Bill and the EU Directive.
Demon believes that the best way to fight the issue is not to appeal now, but to lobby for appropriate measures in the coming legislation.
It must be noted, with some regret, that the current form of the coming legislation seems to follow the position taken by Mr. Justice Morland. Demon encourages all interested parties to lobby their MPs and their MEPs to consider these issues far more
deeply, and to enact a more appropriate legal framework. Indeed, with the European Elections just behind us, now might be a good time to influence your new MEP.