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Last Updated: Friday, 10 September, 2004, 12:51 GMT 13:51 UK
Be careful what you say on the net
Online publishing is not outside the law, argues technology commentator Bill Thompson, and nor should it be.

George Robertson
Robertson saw the posting after it had been up for three weeks
The debate about who is responsible for material published on the internet took an interesting turn this week when the Sunday Herald newspaper paid former Nato secretary-general George Robertson undisclosed damages after admitting it had libelled him on its website.

Back in February 2003 the newspaper was running an online discussion forum about the 1996 Dunblane school shootings, when Thomas Hamilton shot dead a teacher and 16 children in a primary school.

This followed the revelation that many official documents relating to the case would remain classified for a century.

They included a letter Mr Robertson, at the time an MP, had written to the Scottish Secretary in which he passed on material about Hamilton.

The paper asked readers to discuss the matter, and explicitly invited comments on speculation about links between Hamilton and prominent Scottish politicians. One post made the allegations against George Robertson which were the subject of the action.

The message was online for three weeks before it was spotted by Mr Robertson, even though it was an unproven allegation which would never, for example, have been published on a letters page.

So Mr Robertson sued.

Legal misunderstanding

Deciding to launch a libel action is always a tricky decision, since going to court inevitably gives the original allegation a lot of publicity it would not otherwise have.

Although Mr Robertson obviously felt that it was necessary to clear his name, the paper has pointed out that only 400 people read the message board concerned.

Bill Thompson
The result is that every time someone prosecutes a website, we are told that the end of the internet is nigh
The post was also removed as soon as Mr Robertson told the editor about it.

The interesting question is not whether Mr Robertson was wise to sue, but whether online publications should be held accountable for what they say.

If a local radio station with 400 listeners had made the same claim, then we would not think it unreasonable if they were sued. But there seems to be an unwillingness to accept the same constraints on web publishing.

And whatever we may think of libel law in the UK, it is well enough understood by newspaper lawyers and it is, for the moment, the way things work.

Yet there is often a view that any restrictions on what we can or cannot say online are simply unacceptable.

This is coupled with a great deal of misunderstanding about the way laws on defamation are applied online, especially when it comes to suing people in one country for material posted on a website located in another.

The result is that every time someone prosecutes a website, we are told that it is the end of freedom of speech on the internet.

Geography and the law

For example in his recent book on the ways the net is changing journalism, We The Media, technology writer Dan Gillmor claims that if he said something nasty about an Australian judge on his site he could be sued over there.

Computer keyboard
The law applies to what you publish online, as well as offline
The implication is that this limits his freedom to write what he wants.

The reason he says this is that in December 2002 the Australian High Court gave a local businessman leave to sue Dow Jones over an article they had published on their site which libelled him.

But Dow Jones was only sued because it was actively selling subscriptions and publishing in Australia.

It was not, despite what Mr Gillmor claims, the mere fact that the article was available to be read online in the country. Mr Gillmor is therefore safe from the Australians.

As I said at the time, this approach makes a lot of sense. If we are going to have laws to protect people's reputation - and even the United States with its First Amendment obsession has such laws - then we need to apply them sensibly.

Taking responsibility

Mr Robertson was certainly entitled to sue the Herald. The claims made about him were serious and unsupported.

They were made in a forum over which the Herald exerted a degree of editorial control.

They were not noticed for three weeks, and were only removed when Mr Robertson pointed them out. He was within his rights under the law, a law which has to apply online as well as offline.

And the fact that the Herald has settled with him is neither a disaster for free speech nor a sign that the libel lawyers are going to ruin the net for all of us.

It is simply an indication that responsible publishing means taking care of what is said on your site, even if you are only the host of a comments page.

And if Dan Gillmor is right and we are all now empowered to become "citizen journalists" and tackle "Big Media", then every blogger, site host and community publisher needs to take their role seriously, and keep an eye on what they are publishing.

This does not mean that a web hosting company or internet service provider should be liable for every message sent or page served, and here the US law that protects them from libel claims is a good model.

But it does mean that those involved in content, whether it is a national newspaper, a personal blog or a community site, need to pay attention to the law.

Arguing that it would take too much time is not a defence.

And if you do not like the way libel laws work then campaign to change them, do not just act as if you can ignore them. As the Herald has found out, you cannot.


Bill Thompson is a regular commentator on the BBC World Service programme Go Digital.



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