Defamation
(note that due to the nature of defamation law, all advice is conducted in conjunction with Counsel)

In the information technology age, protection of the rights of legitimate speech regularly clash with the laws of defamation.

The case of Godfrey v Demon Internet Ltd, QBD, [1999] 4 All ER 342, [2000] 3 WLR 1020; [2001] QB201 gave significant problems for online providers. It involved the first judicial decision within England and Wales concerning a defamatory statement made via e-mail through an Internet Usenet discussion group.

The case is also the first one to take into account the liability of an Internet Service Provider under section 1 of the recently enacted Defamation Act 1996.

The main legal issue discussed within this case is section 1 of the Defamation Act 1996 which deals with the defence of innocent dissemination. For the defence to succeed under section 1, the defendant (usually an ISP) needs to establish that
(a) he was not the author, editor or publisher of the statement complained of;
(b) he took reasonable care in relation to its publication; and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

There is no doubt that an Internet Service Provider would qualify as a "publisher" under Section 1(2) of the Defamation Act which defines a commercial publisher as a "person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business."

However, for the purposes of section 1(3) of the 1996 Act, "a person shall not be considered the author, editor or publisher of a statement if he is only involved in printing, producing, distributing or selling printed material containing the statement; in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form; or as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.

Demon Internet "were clearly not the publisher of the posting defamatory of the Plaintiff within the meaning of Section 1(2) and 1(3).

What is the problem with Defamation and notice of Defamation in the UK?
Mr Justice Morland acknowledged however that once an ISP had received a notice claiming that the material was defamatory (in Demon’s case on 17 January, 1997) this placed the Defendants in an insuperable difficulty. They could not avail themselves of the defence provided by Section 1 if they didn’t take the material down within a reasonable time.

This means that an ISP has to instantly become a specialist judge on defamation or face unlimited exposure. The effect is
a) ISPs simply include in their terms and conditions a right to remove sites upon an assertion of defamation
b) web-sites can be effectively silenced simply by a Claimant (or more usually a solicitor’s letter for the Claimant) making a bald assertion of defamatory content without any need to prove that a prima-facie or bona-fide case.
A mere assertion will normally do!

If you’re a corporation or individual up to no good, and it gets on a website, simply get a solicitor to write a statement saying that the contents are defamatory and in 99.9% of cases, the material will disappear.

If on the other hand you’re a corporation or individual who is placing uncomfortable accurate information about a dispute, expect that in 99.9% of cases, the material will disappear because the party you are in dispute with will allege defamation.

If on the other foot, you’re a corporation or individual who has been defamed expect that in 99.9% of cases, the material will disappear because you only need to allege defamation.

If there is merely the whiff of a smell of something that might possibly have an odour of defamation, then an ISP will remove content because it is the only way it can protect itself!

A mere statement of “the material is defamatory and contains serious allegations of a criminal nature” can be enough to remove the site even though there is a letter from the other side’s solicitor saying that the material is not defamatory, is truthful or is a bona-fide opinion on a matter of public importance (being full defences in defamation); however the 1996 Defamation law was passed before the Human Rights Act and the Article 10 and Article 8 rights may not be properly balanced by the 1996 law anymore.

If the Human Rights laws are not balanced by the 1996 Act, Judges may have to impose a rule that “he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement” is not met where there is a counter letter saying it is not defamatory (particularly where the letter is a solicitors counter letter).

SCOPE FOR A “NOTICE AND KEEP UP” LETTER?
This “Notice and Keep Up” letter would balance rights as an ISP could legitimately argue:
i) he did not know that what he did caused or contributed to the publication of a defamatory statement - this recognises that the recipient is not a judge so that unless it is a clear defamatory statement and unchallenged, the material remains
ii) he had no reason to believe that what he did caused or contributed to the publication of a defamatory statement - the counter letter acting as the reason why he did not reasonably believe.

This would bring English law half-way to the US law. In English law the Defendant publisher has to establish his innocence under Innocent Dissemination defences whereas in American law the Plaintiff who has been libelled has to prove that the publisher was not innocent.

The effect, if implemented, mean that the Defendant publisher has to establish his prima-facie innocence under Innocent Dissemination defences - namely the receipt of a counter-notice that he could reasonably rely upon (i.e. a solicitor’s letter from a solicitor in that jurisdiction - easily checked via law society webpages) at which the Complainant who has been libelled has to prove, on a balance of probability, that the publisher knew that the material was defamatory or could not (on the basis of the statements published) reasonably rely on the solicitor’s letter.

How does this contrast with the USA?
Wisely the US Congress decided not to impose tort liability on Internet Service Providers which carry other third parties’ potentially defamatory content through their servers as a policy decision and the effect of the section 230 of the Communications Decency Act 1996 was to overturn the decision made in the Prodigy case. Wilkinson C.J. in Zeran v. America Online stated that section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Lawsuits seeking to hold a service providers liable for its exercise of a publisher’s traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content -- are barred.

The Internet’s own solution:
Always innovative, the internet has its own solution - The McSpotlight Agreement.

A McSpotlight agreement was first used by the McLibel Two (see www.mcspotlight.org) and a brilliant step it was too!

When McDonalds threatened to take down the McLibel site, hundreds of other sites outside the jurisdiction agreed to publish the pamphlet complained about. Each of those sites agreed to get 100 other sites to back them too! If the first site is taken down, there are 100 sites to remove (all outside the jurisdiction. If those sites are attacked, it becomes 10,000 sites. If those sites are attacked it becomes 1,000,000 sites. How is that for keeping things quiet!

The secret of a McSpotlight agreement is that the material is first distributed but that the originators don’t know to whom it has been originated so no court order can be effective to silence the publication. [See typical submission here]

Although the McSpotlight was a particular arrangement, there are now hundreds of underground newsgroups, populated by hackers, crackers, file exchangers, internet radicals, free-speech advocates and upstanding internet community members who will readily agree to watch a particular site and if it goes down to start publishing the material in all sorts of newgroups and online fora (i.e. forums) as well as websites. All you have to do is ask.

Finding posting locations will require an internet expert as the “McSpotlight Request” sites concerned aren’t visible on Google for obvious reasons as they ask robots not to index them (If they were findable on Google then they would be able to be attacked before publication).