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The ISP Business after Godfrey v Demon

There has been some considerable concern about the possible effect of the case of Godfrey v Demon in so far as it may affect the business of Internet Services Providers (ISP) in the UK.

What happened in the case? Dr. Godfrey found that someone had posted a message to the Usenet Group alt.soc.thai, which posting suggested that it was from him, but was clearly, in the words of the Judge, squalid and defamatory of Dr Godfrey. The true poster was effectively anonymous, though the posting probably originated from the United States.

Dr Godfrey decided that he would contact, amongst others, the defendant, Demon Internet Limited, who at the time were one of the biggest providers of dial up Internet access in the UK. They probably had between a quarter and a third of the traffic. Dr Godfrey considered that if he could remove that proportion of the traffic, that would minimise the damage. Approaches were also made to other Isps.

The exact details have been debated, but his several requests to Demon to take down the posting were ineffective. Eventually his solicitor wrote to Demon. By this point, the natural life of the posting was just about finished as far as Demon was concerned, but they declined to act anyway. A later version of events was that the posting was not removed because of an 'administrative failure' within Demon.

Dr Godfrey's first action was against Demon in respect of the damage caused to his reputation by the continued distribution of the posting to Demon subscribers in the period of approximately two weeks after the content was first drawn to their attention. No claim was made in respect of damage occurring at any period of time before he drew the posting to Demon's attention.

Some time later, a second action was begun by Dr Godfrey against Demon. This time the posting was made by a Demon subscriber through Demon's service. Previous complaints had been made about the content of this customer's postings, and Demon had (possibly) cause previously to suspend the account of that customer for this kind of reason. This customer's posting was also defamatory of Dr Godfrey. Dr Godfrey again brought the content to the attention of Demon, and asked them to remove it. They failed to do so. Again he issued proceedings against them claiming damages for the period after the situation had been brought to Demon's notice.

The two actions together, nicely demonstrated two limbs of the Defamation Act of 1996, which deals with these matters, by providing the ISP with a defence.

Demon's defence, in effect, asserted that they had no control over the contents of postings made through their service, and that as ISP's they should not be called to account for the content of such postings. They did not want to act as censors on internet.

The Defamation Act 1996 was prompted by precisely this question as it then arose within bulletin board networks, and also as the imminent rise of Internet became clear. There had been a defence in defamation of innocent dissemination, in which it was a defence to say that publication took place innocently, that the person distributing the material had no knowledge of the content, which would allow him to avoid distributing defamatory material.

The defence needed clarification in the light of new electronic systems for delivering information, and the Act was born. The act confirms that (with some clear reservations) in law at least, an ISPmay not be a publisher. He is not responsible in defamation for material which passes through his system, unless either the nature of the content of a particular posting has been brought to his attention, or secondly where they had cause to anticipate that the author would post defamatory material, and despite such knowledge or notice, they continued to publish the material. The two cases exemplified the provisions of the Act.

The Act anticipates a "notice and take down" procedure. Once the ISP has reason to believe that he is distributing defamatory material, he becomes responsible. He can cease to distribute that material or not as he wishes. In practice, ISP's are prepared to spend many hundreds or thousands of pounds in acquiring the computer equipment and communications infrastructure which is necessary to run their business. They appear unhappy to have to spend a smaller amount employing those who might make decisions about such material when notified.

It is said that an ISP should look to the "common carrier" idea which originates in the common law of England. However that this is quite inappropriate. The most substantial difference is that, if A sends one e-mail to B, although the e-mail is copied at several places during its transmission, in principal it originates at one point and lands at one other place. A use net posting or a web page however may start with one copy and rapidly generate tens of thousands or sometimes even millions of copies very quickly. The ISP's business is to provide the mechanism by which this huge power can be generated.

This is completely unlike the situation with a telephone company or mail delivery service.

Where does this leave ISP's.

First there will undoubtedly be an excess of notices received from disgruntled from people who complain about having been defamed. The ASP must choose how to reply to deal with such material. He must make a judgement. The judgement however is no more than and no different in kind to that made by the editor of any letters page in any newspaper.

It is clear that this will result in a reduction in the perceived freedom of internet users to say what they like. That perceived freedom has however always been in perception only, and it is a complete misconception to image that what happened on internet is somehow outside the law.

We anticipate that in due course ISP's will accept that they have this additional overhead. They will recognise that there is a competitive advantage in being ready to withstand silly requests on the other hand those whose sole aim in life is to defame and destroy the lives of others will find that there are fewer and fewer avenues for them to vent their spleen.

The difficulty of deciding which is which, whether a posting is a heartfelt call for justice against the abuse of power, or whether it constitutes a squalid attempt at retribution by someone who has lost all sense of reality, will always be impossible to decide. Any reality which might underlie such a question is likely to be too deeply buried to be ever retrieved. The important point to note however is that this problem is in no sense at all unique to internet.

My own personal views are as follows.

  1. I believe in freedom, but I do not believe that absolute freedom exists or should exist. Whenever any of us do something which may have consequences for others, our freedom to act should be constrained by some responsibility for the effects of our actions.
  2. I do believe that the internet has brought from the US a flavour of the degree of free speech enjoyed in the US which has been a welcome breath of fresh air for the UK. I am persuaded that our own defamation laws do need to be relaxed to allow some greater freedom, but I do not pretend to know precisely how this should be done.

An important issue is that of anonymity on line. There are huge technical problems in avoiding it. There will always in which people will be able to post either anonymously or where their identities are hidden. Nevertheless, I would much more sympathy for ISPs who ensured that any posting which originated through their new servers was traceable to an identifiable account. I believe that an internet service provider who can point to the originator of the posting has a much better claim to be relieved of responsibility than does one who simply says they do not have that information.

It is possible for example that a group of internet service providers could set up news groups where they could allow postings which originated only from members of that group of ISP's and on the basis that each member of the group only allowed postings from accounts where the identity of the authors was known. They would then (in general) only promulgate postings where they could always point a finger at the original author.

Some ISP's will decide not to carry certain news groups, or even not to carry news at all. The truth is that the Demon judgement makes little difference to the law. The law is not being demonstrated to be different in any significance sense from that which was thought to apply by most commentators. What it is genuinely demonstrated perhaps is the courage for one individual to defend what was eventually came to be an attack from a substantial public company upon his character.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 277 18 October 2013