Are libel laws wrong?
OUT-LAW Radio, 06/12/2007
We look at claims that free speech on the web is silenced too
easily by threatening a host without ever having to prove
defamation.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to out-law radio, the weekly podcast that
keeps you up to date on all the twists and turns in the world of
technology law.
Every week we bring you the latest news and in depth features
that help you to make sense of the ever-changing laws that govern
technology today.
My name is Matthew Magee, and this week in a special extended
feature we ask whether the UK's libel laws make it all too easy to
censor the web.
In the public mind the courts can seem like a casino with wigs:
in some cases you take your chances and hope for the best with
chips piled high to the ceiling, never more so than in libel
cases.
Suing someone for defamation is risky, difficult and incredibly
expensive. There are no guarantees and the process can leave
reputations and bank balances in tatters.
Which is why many a famous eye will have been drawn to a spat
between a former British diplomat and an Uzbek billionaire in which
the businessman has been accused of finding a shortcut past the
libel laws to silence his critics.
Craig Murray is a controversial ex-ambassador to Uzbekistan who
was removed from his post after speaking out about that regime's
use of torture and alleging that MI6 used information gained by
Uzbekistan under torture.
Alisher Usmanov is Russia's 18th richest man, an Uzbekistan-born
mining and investment billionaire who recently came to UK attention
with an investment in arsenal football club.
When Murray published a blog post in September which contained
details of Usmanov's six year jail spell in the 1980s, Usmanov's
response was swift. Lawyers contacted the company hosting Murray's
blog, Fasthost, asking them to take down material which they said
was defamatory.
Murray objected, saying he was happy to defend his comments in a
libel court, but no writ has been forthcoming.
Tim Ireland helps Craig Murray with his online presence and
writes political blogs of his own. His material, too, was taken
down after complaints by Usmanov's lawyers when he re-published a
version of Murray's post. He said that what has been found is a way
to silence critics, and that someone objecting to material can get
it deleted without having to go to the courts.
Ireland: If I were to approach the ISP and take
them to court over it, there would be the usual actions regarding
libel except I would be targeting the ISP in the court room rather
than the person who actually wrote the material. But, it never gets
that far. It does not have to.
Murray's and Ireland's blogs were hosted by Fasthosts, which
took the material down. Ireland says that it is wrong that someone
can get material removed from the internet without having to prove
a libel in court, a worry for those concerned about free
speech.
Ireland: People with enough cash can shut up
just about anyone without taking them to court.
Fasthosts declined to be interviewed, but did send us a comment
in which they claimed to have warned Ireland a number of times
about breaches of its terms and conditions, a claim Ireland
disputes.
"According to generally accepted industry procedures, Fasthosts
does not routinely monitor the content of the hundreds of thousands
of websites it hosts," said the statement. "Responsibility for the
content lies solely with the owner and publisher of a website."
The law on take down is there to try and give a fast, cheap way
for people to react to material about them which they think is
libellous. It is a success at doing that, but it does put internet
service providers and hosts in a difficult position. Mark Gracey is
the head of the ISP association's liability sub-group.
Gracey: In the rounds of defamation if somebody
posts something defamatory on an internet service provider's web
server and somebody provides notice that that material is
defamatory then the ISP needs to take some action and depending on
what action they chose to take will depend on each individual
company's policy, but it comes down to having to act because the
company's regulations say that you are liable once you have actual
knowledge. So at the point that somebody tells you, then you
clearly have that knowledge. Really it is ultimately up to a court
of law to decide whether the material indeed is defamatory or not,
so the best you can come up with is whether it holds defamatory
meaning. This puts the ISP as an intermediary in these affairs
somewhat in the middle where they are having to balance somebody's
rights so they feel that they can say what they like, or believe
they have got a right to say what they have got, maybe they feel it
is in the public's interest against the fact that they could be
liable if it turns out that that material is defamatory. So very
often I would imagine most ISPs will actually end up taking that
material down and erring on the side of caution rather than running
the risk of being found liable for the contents remaining up.
The current law, then, turns hosts and ISPs into judge and jury,
something which Ireland finds appalling. But Jon Fell, a technology
law expert at Pinsent Masons, the law firm behind Out Law, said
that ISPs are allowed to take the time to make a considered
judgment.
Fell: If someone comes along and says, by the
way we think this is defamatory, the ISP needs to act quite quickly
and the reason they have to act quite quickly is because it will
lose protection under the E-commerce regulations but also under the
Defamation Act. If it does not want to become a publisher it needs
to stop continuing to publish that material almost immediately.
ISPs do not have to just act in blind panic, they are quite
entitled to make sure that they are given sufficient information
about the person who is making the complaint, the reason for the
complaint, where the information or the content should be found and
they have the ability to take the time to actually consider whether
it is defamatory or not. The difficulty with anything which is
defamatory is that the only person who will really know that, are
the parties concerned because it is a question of whether it is
true or not. Most ISPs will not want to take on liability in
respect of some things so the likelihood is if someone complains
they are going to take material down rather than leave it up
because it is the safer option to do so.
Nonetheless, Fell, Ireland and Gracey are all in agreement that
hosts and ISPs will err on the side of caution, as Ireland told us.
Gracey goes on to explain that even this can cause them
trouble.
Ireland: Without it getting a mile near
court, the ISP will generally just give up the ghost pre judging
what the outcome of the court case would be and if they take the
material down and it turns out to be a wrongful notice that it is
somebody that is just trying to get one over on somebody that they
have perhaps fallen out with or have got issues with online or
otherwise, then the ISP is also liable for wrongful takedown if it
can be proven that the material was allowed to be hosted after all
so the ISP are stuck in the middle.
The law has implications for all sorts of businesses. It is not
just blogs that can be subject to take down notices, but major
publishers' sites. Imagine you are a national newspaper which
thrives on publishing the details of things others want kept quiet.
You have your own legal department to make sure that you don't sail
too close to the libel winds, and if you publish something you are
prepared to stand by it.
What would happen if the subject of a story objected to your
host? Would the whole site come crashing down? We asked Emily Bell,
director of digital content at the Guardian, what they do. She was
coy on the specifics, but it does appear that publishers sometimes
share the risk with hosts in a bid to keep their stories live.
Bell: We do not ever discuss the detail of our
arrangements with ISPs which I am sure you can appreciate why, but
I think that it is not uncommon for large media companies to have
some level of indemnification against libel in certain suppliers
and in some ways you might, as it were, not expect local corner
shops to be sued for something that you had printed in your paper
even though under libel law that is perfectly possible. So it would
not be entirely unusual for large news or organisations to have an
arrangement whereby your ISP is not under threat if you are served
with a writ.
So what is to be done? Tim Ireland and his blogging colleagues
believe that the law is fundamentally at fault. They are putting
their heads together to come up with a plan that will make the
users of take-down notices follow through in the courts.
Ireland: If you issue a takedown notice that
should compel you to take legal action within a certain amount of
time otherwise the takedown notice can be ignored. I mean I am not
a lawyer but I would say that that would be the ideal situation.
You should have the right to challenge anyone who said something
about you that you consider to be unfair or untrue and say would
you care to put your money where your mouth is. Otherwise it is
just going to be absolute anarchy.
Jon fell, though, says that such a plan does tend to undermine
the whole idea of notice and take down procedures, which were
designed to avoid the courts.
Fell: If the law changed with regard to
defamation so that if you complain about defamation you have to go
to court, then it rather defeats what's happened from time in
memorial which is the first obligation is to complain about it and
get it removed and then deal with it in a way that does not involve
the courts. I can understand why people consider that that might be
something which gives greater protection to other people with
regards to people making complaints to ISPs but it does seem a
little bit of heavy handed processes so you can only get the
content removed from an ISP if you then go through to court.
The current situation drives people who want to continue to
publish abroad, like Murray, who still publishes allegations but
from a foreign web host.
Ireland and his colleagues hope eventually to publicise their
plans, but as ISPs have already found, balancing the rights of
publishers and people who believe they have been defamed is an
almost impossible task.
That's all we have time for this week, thanks for listening.
Why not get in touch with out-law radio? Do you know of a
technology law story? We'd love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
Out-law radio was produced and presented by Matthew Magee for
international law firm Pinsent Masons
