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Wednesday, 18 December, 2002, 16:47 GMT
Internet libel law shake-up urged
An urgent shake-up of British libel law is needed to protect free speech on the internet, according to a new report.
Businesses are increasingly using legal threats against Internet Service Providers (ISP) to close down websites set up by angry customers or protest groups, the Law Commission found.
The situation is in danger of stifling free speech as many of the sites may contain allegations which are true, it said.
The internet is subject to the same libel laws as broadcast and printed media.
But there is no legal immunity for authors of defamatory statements on bulletin boards and chat rooms.
And complications can arise when material published in one country is read in another, with tougher libel laws.
The Commission stressed that although it was legitimate for the law to protect the reputation of others, it was important to investigate other means of achieving this.
One solution, it said, is to follow the US example and exempt ISPs from legal liability for material published.
The Law Commission was asked by Lord Chancellor, Lord Irvine, to look into how libel laws apply to the internet.
Its interim report, published on Wednesday, follows a landmark ruling last week by Australia's highest court.
The court ruled an Australian businessman, Joseph Gutnick, can sue US-based Dow Jones in his home state of Victoria, where the libel laws are tougher.
It also comes just weeks after a gossip website removed an untrue rumour about David Beckham, under threat of repercussions from the footballer's lawyers.
Law Commissioner Hugh Beale, QC, said: "When a website carries material to which someone objects - rightly or wrongly - it is often easier to complain to the ISP than to the author.
"The problem is that the law puts ISPs under pressure to remove sites as soon as they are told that the material on them may be defamatory.
"There is a possible conflict between the pressure to remove material, even if true, and the emphasis placed on freedom of expression by the European Convention of Human Rights."
Giving UK-based ISPs immunity under British law would not prevent legal action against them in foreign courts, the Commission found.
An international treaty would be needed to solve the problem of "unlimited global risks", says the report.
It also suggests a change in the law to cover newspapers' online archives.
Libel actions can currently be brought years after a story is placed in an archive, as publication is considered to be continuous.
Adopting the US "single publication" rule, where the article is considered to have been published after it is first posted in an online archive, would solve this problem, the Commission said.
Two years ago well-known ISP Demon paid more than £200,000 to settle a libel action over material posted on one of its newsgroups.
Demon refused to remove postings about physicist Dr Laurence Godfrey, described by Godfrey's lawyers as "squalid, obscene and defamatory".
The case, settled just four days before a jury trial was due to begin, hinged on whether this ISP could be treated as publisher of material on a newsgroup.
Demon argued at the time it had neither the resources nor expertise to monitor the content of hundreds of thousands of messages posted each day.
The Law Commission's report was welcomed by Thus, which owns the Demon brand.
Thus' Internet content regulation manager Mark Gracey said: "Despite having no editorial control over material hosted on their servers, ISPs are currently being held legally responsible for defamatory, copyright-infringing and other types of content.
"This puts ISPs in the untenable position of acting as judge and jury in cases where complaints have been made, having to balance the rights of the complainant with those of their customer and the risk to their business."
He added: "In order to ensure that the internet remains a forum where everyone is entitled to freedom of expression it is essential that these issues are tackled.
"The law should recognise that it is the author of the material, not its distributor, who is responsible for ensuring the legality of information online."
The Internet Service Providers' Association also welcomed the Law Commission's move and said it hoped the government would act quickly.
A spokesman said: "We've been dealing with the issue of notice and takedown, when a client is made aware of problematic content, for a long time now.
"ISPs potentially face civil actions from both the persons complaining and also the website, if they are judged by one or the other of getting the takedown wrong.
"ISPs are having to invest a lot of time, effort and resources in having to manage this process.
"We need some kind of universal procedure which guides an ISP's decision."
The spokesman warned that the report did not cover other problematic areas, such as copyright or racism, when ISPs were "being asked to act as judge and jury over content".
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