Fergus Cassidy

Fore!

"For many years upon this spot
You heard the sound of a merry bell
Those who were rash and those who were not
Lost and made a spot of cash
But he who gave the game away
May he byrnn in hell and rue the day"

The above note was anonymously pinned on the wall of a golf club in Britain. It led to a defamation action in the courts, and although it was 1937 the case still has important lessons today.

It was a very similar case to the recent David Beckham internet rumour codology. Someone posted a message which purported to be very personal information about 'Doived'. He threatened to sue and the message was taken down quickly.

What happened in 1937 has interesting parallels with what the internet is increasingly facing when it comes to dealing with libel and defamation. The reference in the last line of the note above to 'byrnn' was ruled to have defamed a man known as Byrne and he sued the golf club's club secretary for defamation. He won and got nominal damages. The court ruled that the golf club had "complete control of the walls" of the club and could have removed the note after it had noticed it.

The important parallel today is that the golf club was unable to get the court to agree that the club owners could not have defamed Byrne as they had nothing to do with writing it or posting the note on the wall.

Judge and jury
Over the last few years the situation with regard to defamation and libel on the internet has worsened. While the issue bubbles under the surface, the temperature is rising rapidly. For starters, there are the polar opposites that Europe and the USA have found themselves in. The US, since 1996, has gone in one clear direction when it comes to legislating for defamation and other legal issues on the net.

Section 30 of the Communications Decency Act states that no internet service provider (ISP) "shall be treated as the publisher or speaker of any information provided by another information content provider". The US applied the same immunity which the telephone companies enjoy. They are treated as carriers of information not originators or custodians.

But on the European side of the Atlantic the approach has been very different. Based on an e-commerce directive drawn up in 2000, the European Union is in the process of mixing up a strange brew to deal with issues of liability.

In Britain, which has already implemented the EU Directive, the situation is that ISPs have liability but, and it's an important but, their main defence if sued is that they didn't know about it. The same defence as the golf club secretary all those years ago.

At the heart of all the legal stuff however, is the role of the ISPs themselves. Legislation in Europe so far has been heading in the direction that would see ISPs becoming some sort of Keepers of the Gateway. Monitoring and vetting everything running across their networks.

This is the stuff of nightmares. ISPs could begin to mimic the role of print publishers with regard to libel. This would lead to a climate where caution is exercised and stories or information would be shelved or spiked as a result.

This would have a trickle down effect also. For a site such as boards.ie, this would amount to moderators (kind of a chairperson) of groups becoming censors with 'just in case' as their watchword and the Delete button on a hair trigger. What are small sites and groups to do when faced with threats of costly legal action? Turning the ISPs into the network police force is a crazy notion because a) that's the job of the police and courts; b) they don't want to do it and c) they can't afford to do it (which partially explains b).

Mark Gracey, a British ISP Association spokesman told Zdnet.co.uk last week that: "ISPs are rarely aware of the full facts of the case and could easily make a wrong decision. ISPs are at risk of liability from the person giving notice [to remove] and from their customers. Do we take down the content when asked by a complainant and if so, should we put it back when our customer who posted the content in the first place tells us to? We are the piggy in the middle. We are playing judge and jury".

Global treaty
In Ireland, the Electronic Commerce Act 2000 has dealt with certain aspects of law, but mostly with regard to digital signatures and the legality of electronic communication. There is more legislation due in a few weeks which will deal with the exemption of liability for the ISPs.

However, the same E-Commerce Act is very clear on defamation in Ireland. Section 23 states: "All provisions of existing defamation law shall apply to all electronic communications within the State, including the retention of information electronically."

Whatever is coming, if it further copperfastens the role of the ISPs as gatekeepers it'll be bad news. Because although it might seem to solve the thorny issue of defamation or other alleged illegality, it doesn't and merely passes the buck to the ISPs.

However, the Internet Service Providers Association of Ireland (ISPAI) has determined in its code of practice that ISPs "will not decide the legality or suitability or to filter or otherwise restrict reception of or access to content material" save if the law is broken.

Cormac Callanan, chairman of the ISPAI, pointed out that an ISP must have "actual knowledge that it [content] is illegal. This is a much higher level of proof than people think since in many cases only a court can decide what is illegal".

But it is still very unclear what would happen if a person who is sure they have been defamed and subsequently demands that the ISP take down the material. If the ISP leaves the material online and the case goes to court, would the ISP could get hit big time because it knew about it and didn't act quick enough? Would ISPs take that chance? With recent libel rulings in Australia and elsewhere beginning to get attention, it is very hard to call which way an Irish court would rule.

What to do? Well a glimmer of hope came in a report last week from the British Law Commission. In the report on libel laws and the internet it said a global treaty was needed to harmonise libel laws, which are forcing many ISPs to take down web sites. The Commission put a "strong case" for reviewing liability of ISPs saying that "it is important to ask whether this goal can be achieved without the regular removal of material which deals with matters of public interest and which may be true". According to research, over one quarter of take down notices in Britain are related to defamation. The report also called for more research and said that "there is a lack of readily accessible information about how the law of defamation impacts on the internet in other jurisdictions...".

That's one of the core problems with libel and defamation. Is it possible to apply national or EU laws to an environment that so easily transcends geographic borders? How does a person living outside the United States, for example, get a site or material removed that is hosted on a server located in the US?

Nothing will be gained by turning ISPs in to border guards. They must be given the same exemption as the telephone companies. They are carriers, not gatekeepers or monitors and any drift in that direction will inevitably create serious consequences for civil and human rights.

Now if only I hadn't posted that remark about a Laplander whose cheeks were too red 'cos he drank too much.

Have a good one.

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LINKS

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce LINK

British Law Commission report titled 'Defamation and the internet: A Preliminary Investigation', published 18 December 2002
LINK, [PDF only, 176k]