Wednesday, June 9, 1999 Published at 16:25 GMT 17:25 UK
Demon drops libel appeal
Demon Internet is embroiled in an Internet defamation case
By Internet Correspondent Chris Nuttall
Demon Internet has quietly dropped an intended appeal against an Internet libel ruling that it said could affect "the entire ethos of freedom of speech on the Internet."
The Internet Service Provider (ISP) had until Monday evening to give notice of its appeal against the decision by Mr Justice Morland in the High Court in London on March 26. But the deadline passed without any action on its part.
"We are not going to appeal because there is new legislation being drafted and we have an opportunity to get the law right through that, " said Phil Male, Demon's Technical Director, talking to BBC News Online.
E-commerce bill opportunity
An electronic commerce bill is currently being drafted and Demon has submitted its own comments and recommendations on content liability.
It suggests the UK bill should include proposals from the draft EU Directive on Electronic Commerce which give protection to intermediaries against liability.
It also asks for protection for "intermediaries such that they are not required, through risk of acquiring liability, to take action in relation to third party content which is made available or accessed through their services unless a Court Order, for example an injunction or interdict, is served upon them."
"If we appeal in the current case, it will set a precedent at the Court of Appeal level and we would rather wait for the e-commerce bill," said Mr Male.
Net precedent will now stand
The British physicist Laurence Godfrey, who brought the defamation case against Demon, said in a statement:
"I am not surprised if Demon has indeed made a U-turn and abandoned its much-publicised intention to appeal."
"The judgment of Mr. Justice Morland will remain a precedent, binding on the High Court itself and on all lower courts.
"Whatever happens now, unless at some time in the future the Court of Appeal overturns the judgment, all ISPs in England and Wales are prima facie liable for any defamatory material that they know they are carrying, irrespective of where it originated."
He later told the BBC: "The issue in my proceedings is not about restricting freedom of speech. There never was any absolute freedom knowingly to publish false and defamatory statements. There has always been a duty not to defame people."
ISP's 'hopeless' defence
The judge had made a pre-trial ruling that Demon could not take advantage of the "Internet defence" of innocent distribution of libellous material because it had been warned by Mr Godfrey of the content of an offending newsgroup message.
The Judge said: "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."
In a statement at the time, Demon said it was appealing because "the ruling, if not reversed on appeal, will have a widespread impact on the whole Internet industry and its users in all areas including freedom of expression and electronic trading. Complainants may be able to force ISPs to police and censor any item of information on their servers."
Reacting to the decision not to appeal, Yaman Akdeniz, Director of Cyber-Rights & Cyber-Liberties (UK] said on Wednesday: "If the decision and the Defamation Act 1996 stands as it is then "notice and takedown" will be a routine job for the ISPs and they will be forced to take down Internet content including newsgroup postings and web pages.
"There was no ISP lobby when the 1996 Act was enacted and now there is an urgent need for lobbying the Parliament to change the laws to give further protection to ISPs. If not, the real losers will be Internet users and cyber-speech rather than Internet Service Providers who are more interested in protecting their own interests."
Demon seeks indemnity
Demon antagonised its own subscribers recently when it carried out its own policing and censorship.
Mr Godfrey had complained about further newsgroup postings by three users and asked for the messages to be removed. Demon reacted by blocking newsgroup access to 11 members and asked them to sign a form of indemnity so that they and not Demon would be liable for any further defamatory postings.
One of the victims was a solicitor, David Swarbrick. "I am unwilling to sign any form of undertaking, but I hope that Demon and I can find other ways of remaining on amicable terms," he told BBC News Online this week.
"The state of the law is that we have to prevent anything that could be defamatory being published and if it comes to our notice that others have repeated it, then we are obliged to take action," said Mr Male.
Demon, founded in 1992 as one of the UK's first ISPs, was sold in May 1998 to ScottishTelecom. It then became involved in a spat with AOL UK over which could be called the Number One ISP. The Advertising Standards Authority eventually ruled in favour of AOL.
Both were rapidly overtaken in member numbers by Dixon's freeserve, launched last autumn. Demon has yet to come up with a significant response to the threat to its member base from the advent of scores of subscription-free ISPs.