Would the net have stopped Maxwell?

Robert Maxwell would threaten newspapers with court action

One of the things the late Robert Maxwell has become notorious for was gagging any critics by threatening them with potentially very costly libel actions.

Rather than risk going to court, publishers would usually seek to avoid a conflict. But in the new media world where everyone can become a publisher, one might expect that such gagging would be nearly impossible.

However, following the UK's first court case testing the right to publish on the internet, it is not clear that the net - at least in the UK - would be any more effective than old media.

ISPs really aren't publishers

Clare Gilbert, ISPA

Internet service providers are uncomfortable with the current state of legislation, because while they see themselves rather like telephone companies which have no responsibility for what people say to each other on the phone, the law sees them more like publishers who are responsible.

At the moment, ISPs are only immune from being taken to court for things published on websites they host until a complaint has been received. In other words, once someone complains, the company can be sued.

So the question many ISPs will inevitably ask themselves is, if they have received a complaint, why on earth should they risk being sued when they can quickly and easily take the offending site down.

Kamlesh Bahl: Had her website removed

The risks of taking no action were highlighted last week when ISP Demon paid damages and costs estimated at £200,000 for not responding to complaints about potentially defamatory matter on a website it had hosted.

This week Kamlesh Bahl, the former vice-president of the Law Society, had a website she posted withdrawn by her ISP following a complaint about its contents.

Ms Bahl resigned from her position after an investigation said she had bullied staff. After receiving an opinion from her barrister, Cherie Booth QC, that the investigation would be open to legal challenge, she wrote about it on her site.

But following a complaint to Ms Bahl's ISP, Freenetname, alleging the site's content was defamatory, the company removed it.

Rhian Ball, marketing manager of Freenetname, which is owned by Concentric Network, said: "Our policy is that if there's any doubt we err on the side of caution. We're between a rock and a hard place.

"We don't want to be seen as stifling freedom of speech, but the way the law stands it's difficult for us. Once these things are brought to our attention, then we're implicated. That's the message of the Demon case."

First reaction

The danger is that an ISP will, as its automatic reaction to complaints, remove sites. In effect this could mean that someone who disagrees with something written on a site need only make a complaint and threaten legal action for the site to be removed.

Portia Trust, now hosted from the US

Tom Watkins, who runs a miscarriage of justice campaign site for the Portia Trust, said the law was making gagging a real possibility. "Robert Maxwell would have only had to get a lawyer to make a complaint for anything written about him to be removed," he said.

Mr Watkins' entire site was removed by his ISP earlier this year following a complaint about an article it included.

A letter from his ISP said: "In order to minimise any liability for allegedly defamatory comments attaching to this company I have suspended your website."

To get round the problem, Mr Watkins found a well-wisher based in New York who now hosts the Portia site from there.

Hope for code

But Clare Gilbert, a member of the UK's Internet Service Providers' Association council, said it was not necessarily a solution to the the problem. A US-based ISP could still be sued for libel in an English court.

She said it was one thing to expect an ISP to remove a site if it had been warned it was hosting child pornography, but it was another thing altogether to extend that process to cases involving defamation or breach of copyright.

"The problem with defamation is that you have no idea at all what defences there might be. The statement could be true, for one thing," she said.

If there's any doubt, we err on the side of caution

Rhian Ball, Concentric Network

After Robert Maxwell's death, it came to light that he had taken huge amounts of money from his companies and employees' pension funds to prop up his empire.

An EU directive on e-commerce, which is yet to be implemented, would go some way to addressing the situation, but ISPs would have to draw up codes of conduct as well, she said.

"It's incumbent on the industry to protect itself, but also on the government to realise that there must be some clear boundaries as to when it's reasonable to expect an ISP to act.

"There needs to be a clear understanding that ISPs really aren't publishers," she said.