Cyber libel ruling threatens UK ISPs

UK internet service providers could face a troubled future following a United States Supreme Court judgement on internet libel.

The case of Prodigy.com in New York has highlighted the apparently diverging direction US and English courts are taking to online defamation.

While UK ISPs are still reeling from the realisation they could be liable for the site they host - following an out of court settlement last month involving Demon - the US courts have reinforced the opposite view.

Already some cautious UK companies and individuals have moved their sites to US servers, says internet lawyer Jonathan Armstrong.

In March, Demon agreed to pay Laurence Godfrey £15,000

The latest Supreme Court ruling in the Prodigy case could drive others in the same direction, he says.

In the case, Alexander Lunney sued the ISP Prodigy after an impostor pretending to be Mr Lunney sent a threatening, profane e-mail to someone who notified the police.

The ISP later found other accounts set up by the impostor, including one on which vulgar bulletin board messages had been posted.

The New York Court of Appeals, the state's highest tribunal, said Prodigy was not legally liable for either objectionable e-mail or bulletin board messages.

E-mail screening

The court said Prodigy's business was more akin to a telephone company than a publisher.

"The public would not be well-served by compelling an (ISP) to examine and screen millions of e-mail communications, on pain of liability for defamation," read the ruling.

Mr Armstrong, of Sheffield solicitors Keeble Hawson, says US courts and those in England and Wales have come from different standpoints.

"The US tends to start from a point of view that freedom of speech is sacrosanct and should not be tampered with, whereas here we start with a view that privacy is sacred."

Mr Armstrong says the more apparent this becomes, the more likely webmasters will opt to host their sites in the US. But their freedoms may not be totally boundless.

Court injunction

In theory an English court could issue an injunction against an American ISP, and, says Mr Armstrong, "in practice, most American ISPs would observe a UK court order".

Unfortunately, those looking for an easy ride may come up against other stringent areas of US law, such as its exacting standards on intellectual property.

The result, he says, could be an internet equivalent of flags of convenience, whereby ISPs from the major developed countries set up in small states which pride themselves on less-restrictive regulations.

Yaman Akdeniz, director of Cyber Rights and Cyber Liberties UK, agrees. "You don't want to invest in a country, like the UK, with such complex rules," he says.

"It's important to take ISPs out of the chain of liability, especially where defamation is concerned. It's impossible for ISPs to make these judgements.

Taking care

"It's technically not possible for [ISPs] to police the output."

But David Parsons, internet lawyer with London firm Lovells, sounds a note of caution, claiming the US and UK laws are really not that wide apart on the issue.

In the UK an ISP is not considered a publisher as long as it takes "reasonable care", he says.

In the Demon case at the end of March, Demon fell down because it did not remove an offending newsgroup when asked to. In the Prodigy case, Prodigy did act when it was clear an impostor had been at work.

"The difference [between US and UK law] isn't as great as all that.

"If a mad panic grips ISP they will go abroad. However, they will take a more considered look at this ruling and realise they are not at any more risk in the UK than in the US."