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Last Updated: Tuesday, 23 October 2007, 09:26 GMT 10:26 UK
Kicking off the debate about free speech
The legal system is starting to get to grips with chat on the internet, says regular columnist Bill Thompson

Screengrab of Owlstalk website, Owlstalk
A row about comments left on the site has ended in the courts
Three Sheffield Wednesday supporters who posted anonymous abusive comments on the "Owlstalk" website will be staring into their cornflakes this morning as they wonder whether they will soon be receiving a libel writ in the post.

The football club has obtained an order from the High Court requiring the site's administrators to hand over the e-mail addresses of the three fans.

Although the posters used pseudonyms and may have thought that they were safe from any legal action, they may now be tracked down after deputy Judge Richard Parkes agreed that their posts "may reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour on the part of the claimants".

This leaves them open to proceedings for libel, so the judge has told site owner Neil Hargreaves to reveal their e-mail addresses despite the site's privacy policy.

Of course nobody should assume that user names offer any real anonymity or protection against legal action against a site's host, whether here or in China, so if the three people involved didn't go to the trouble of registering non-UK addresses just to use on Owlstalk their real names will soon be known to the lawyers acting for the directors.

The consequences could be severe, as we now have a reasonable body of case law establishing that something you say online is just as likely to get you sued as something you print.

And while service providers and hosting companies may be able to claim immunity from prosecution under the EU directive on e-commerce those who write and publish the material are increasingly likely to find themselves hearing from the lawyers.

Three years ago the Sunday Herald paid damages to former defence secretary George Robertson in an out of court settlement after Mr Robertson said he had been libelled on the paper's message boards.

Bill Thompson
Most of us, most of the time, know the difference between abuse and moaning, so we should not see this case as the end of online anonymity.
Bill Thompson

Since then there have been many other cases, including the dispute between childcare writer Gina Ford and the Mumsnet site which ended with the site paying Ms Ford compensation. Another recent case involved a threatening letter from the law firm Schillings on behalf of Russian businessman Alisher Usmanov which resulted in the suspension of several blogs.

Back in September I chaired a two-day conference with the rather unpromising title "User Generated Content and the Law in the Modern Legal Environment".

It was a conference for lawyers, who clearly don't need to be enticed by snappy headlines, and featured a range of speakers who understood how the law was being applied online.

I can remember when commentators routinely described the internet as "lawless", a new frontier where existing legal principles simply could not be applied.

Some of the more hopelessly romantic, like John Perry Barlow, even declared that "cyberspace" was a new realm, independent of the physical world.

They were wrong at the time, but it was true that lawyers and judges were struggling to fit this new medium into the framework of existing law.

Now, it is clear, they have pretty much completed the task and there is no justification for believing that our online activities are in any sense outside the frameworks of regulation and control that govern the rest of our lives.

The stereotype of the uninformed, out-of-date judge issuing incomprehensible pronouncements from the bench is no longer sustainable.

Gavel, Eyewire
The net is now judged by laws that apply offline too
Mr Justice Parkes, presiding over the Owlstalk case, certainly seems to have a sound understanding of the way online debate often goes beyond what would be considered acceptable in polite conversation, and has done us a service by drawing a fairly clear line.

While the e-mail addresses of the three fans have to be handed over, he refused an application to disclose the e-mail addresses of a further eight posters because their comments were "plainly intended as jokes and unlikely to be taken seriously".

He reckons they were "no more than saloon-bar moanings about the way in which the club is managed".

Most of us, most of the time, know the difference between abuse and moaning, so we should not see this case as the end of online anonymity. It is not going to force every website, bulletin board or mailing list to insist on proof of identity, a blood sample and a letter from two grandparents before you can sign up.

It won't have a chilling effect on the sort of raucous debate many of us enjoy on our favourite discussion sites, and it does not diminish the protection someone might expect if they are posting deeply personal or sensitive material under a pseudonym.

Of course, it isn't perfect. The judgment doesn't rule out the possibility of a thin-skinned person taking offence and dragging a small community site into the courts over postings which they really should just ignore.

And it doesn't change the law that encourages hosting companies simply to pull any content after they receive a complaint, as Fasthosts did when Mr Usmanov complained about blog postings about his past.

But it should help anyone who posts online decide whether what they are about to say crosses the line, and ensure that anyone who decides to go for the jugular realises that their carefully-selected username will not really help them when it comes to court.


Bill Thompson is an independent journalist and regular commentator on the BBC World Service programme Digital Planet.



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