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Friday, March 26, 1999 Published at 17:23 GMT


Net legal precedent set

Mr Justice Morland's "landmark" judgment

By Internet Correspondent Chris Nuttall

A judge ruling in the first libel action against a UK Internet Service Provider has struck out a special "Internet defence" relied on by ISPs in defamation cases.

In a pre-trial court ruling, Mr Justice Morland said the defence of innocent distribution could not be used. In this defence, ISPs can argue they are storing and passing on data and messages without being aware of their content.

The ruling was immediately condemned by the ISP Demon Internet and the Cyber-Rights and Cyber-Liberties pressure group.

The action against Demon Internet was brought by a British physicist, Laurence Godfrey, over a defamatory newsgroup message.

His lawyer had argued that the defence was not applicable because Demon Internet had been served notice about the offending message.

Defence "hopeless"

The Judge agreed, saying: "In my judgement the defamatory posting was published by [Demon Internet] and, as from 17 January 1997, they knew of the defamatory content of the posting, . . . their defence under Section 1 of the Defamation Act 1996 is in law hopeless."

Dr Godfrey told BBC News Online: "I am delighted of course. ISPs do publish material on their news servers and, once they are on notice, they can not avail themselves of that defamation defence."

Demon Internet, which will appeal against the ruling, is now part of Scottish Telecom. Its Director of Internet Services, David Furniss, said: "This decision will affect not only the way ISPs operate their services, but impact the entire concept of freedom of information that has been the driving force in the development of the Internet.

"A newsgroup is essentially a virtual 'chat' forum in an eclectic international medium and as such, it would be impossible to expect an ISP to vet every article complained about."

"The ruling suggests that Internet Service Providers should be held liable for the information that they transmit between one party and another. But there are perhaps a million individual articles posted to more than 35,000 active newsgroups available across the globe on a daily basis."

Forged message

Dr Godfrey had said a forged message was posted in soc.culture.thai in 1997, purportedly coming from him and containing damaging allegations of a personal nature.

He said he had asked Demon to remove the posting but the ISP refused. The message had been copied to its servers and many others around the world carrying newsgroup messages.

After Friday's ruling, Dr Godfrey's solicitor, Nick Braithwaite said: "This decision is in line with the [law's] intention. ISPs cannot now put their heads in the sand and kid themselves they are not publishing libellous messages."

Chilling effect

But Yaman Akdeniz, Director of Cyber-Rights & Cyber-Liberties (UK) said: "The decision will have a chilling effect over Internet communications and will force the UK ISPs to take a pro-active role in relation to Internet content. This is most undesirable and unacceptable.

"It is totally unacceptable that an offended party should simply notify an Internet Service Provider claiming the information to be legally defamatory. The current state of the UK laws forces the ISPs to be the defendant, judge, and the jury at the same time. Notice should not be enough in such cases."

Cyber-Rights & Cyber-Liberties (UK) believed that the decision would have a profound effect on cyber-speech and UK ISPs would be forced to monitor and censor third party content going through their servers. The ruling, if not reversed on appeal would make Britain, a very hostile place for network development in the Information Age, it said.

Canadian libel success

This is not Dr Godfrey's first Net libel case. He accepted a payment into court in 1996 from another physicist, Philip Hallam-Baker.

He has also pursued Internet-related suits against organisations and individuals in Australia, New Zealand, Canada and the United States.

Earlier this month, he was awarded damages of £15,000 and costs against Michael Dolenga from British Columbia for a series of Internet libels in the soc.culture.canada newsgroup whose postings were also distributed in England and Wales.

Mr Dolenga had invited him to sue saying he was protected by the US 1st Amendment. He did not defend the case and now faces a bill of some £24,000 if Mr Godfrey has to enforce payment in Canada.

He can do so under the Foreign Judgements Reciprocal Enforcement Act 1933 which is mirrored in Canadian law. "I will be registering it shortly andI don't anticipate any problem in enforcement, " Dr Godfrey told BBC News Online.

"I've been wrongly accused of bringing action whenever I have been criticised. But I have only been taking action when it's defamatory and particularly damaging."

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