Piggy in the middle fear for ISPs

Different verdicts on the case from Friday's newspapers

The prospect of being stuck in the middle between warring parties is facing internet service providers, who fear that they could be sued and countersued for websites and newsgroups they host.

On Thursday, the ISP Demon agreed to pay damages and costs to Dr Laurence Godfrey, believed to total £200,000, for hosting potentially defamatory comments about him.

It was seen by many as a landmark case for internet freedom of speech in the UK.

The main implication is that ISPs will decide not to take any risks on publishing anything, and remove it as soon as a complaint is made, said Nicholas Lansman, secretary general of the Internet Service Providers Association.

And then once they had taken material down from a site, they then ran the risk of being countersued by the original publisher, especially if the removal had affected their business.

WH Smith found itself in same position as ISPs

"ISPs will still have to be judge and jury," he said. "They are stuck right in the middle when they should be allowed to get on with their business of creating e-commerce."

Internet lawyer David Parsons from Lovells said the problems of being judge and jury were fair concerns for ISPs. "It's an unfair burden that they have to make the decision," he said.

But he added that it was similar to the position newsagents such as WHSmith had found themselves in with publications such as Private Eye. The shop could technically be held liable for selling a magazine containing a libel - a fear which prevented WH Smith from stocking Private Eye for many years.

One possible answer, he said, would be for a court-appointed arbitrator to bring parties together and rule on who was right.

Richard Woods, corporate communications manager for Uunet, said one of the main difficulties would be in a case where the original publisher believed what they had written was true, and wanted it to remain on their site.

But the concern of the ISP was whether the posting broke their own terms and conditions.

"If someone said the material we were carrying was in breach of the law, we would then take advice from our legal experts, and we would judge whether on balance it was against our terms and conditions," he said. If there was a disagreement, it should be for the courts to decide who is right and who is wrong.

Business as usual

Despite the worries about the death of free speech, many of the UK's biggest providers seemed unworried by the Demon/Godfrey case and were happy that their complaints procedure was adequate.

Laurence Godfrey: Happy with verdict

Robert Dunnett, spokesman for BT, said if a complaint had been made to BT about something posted by a customer, action would have been taken. But that did not mean the company accepted that ISPs should be held liable for the initial publication of material. "We still take the view that as an ISP we cannot be gate keepers," he said.

Nick Porter, spokeswoman for Freeserve, said its policy was "pretty solid", while Demon itself said its current procedures dealt with complaints seriously.

AOL UK appeared to support Demon's call for the law to be clarified, saying it had concerns over the strength of the legal defence ISPs had in the 1996 Defamation Act.

But the Demon spokeswoman was non-plussed when asked why Dr Godfrey's complaint had not been dealt with in the first place.

"I really can't answer that," she said. "There's been a change of ownership, a lot of time has passed. Obviously our procedures were found lacking, but I really can't answer the question."