NS Internet column

Written 30 April 1999 for the New Statesman

Should libel be allowed in the Internet? The answer, traditionally, has been that this is a bloody stupid question, since nothing can be done to stop it.  Quite a lot of people welcome this state of affairs. Others deplore it. Now a London judge may have actually done something about it and the implications are really rather horrible, whichever side wins. Dr Laurence Godfrey is a physicist in London with a knack of irritating people on Usenet. In the words of Mr Justice Morland, in the High Court, confronted with a bundle of eighty messages apparently from Godfrey, "It could well be submitted that these postings are puerile, unseemly and provocative. In effect they invite vulgar and abusive response." Such response is undoubtedly what they got, and it would appear that some of it was libellous. So far, so normal. The whole point about Usenet, in many people's eyes, is that you can say what you like out there.

But Dr Godfrey sues, which is unusual; and sometimes he wins, which is extraordinary. Three years ago, he won the first Internet libel case in Britain, about comments made by another physicist. But then he sued the physicist in question. Now he has gone one better, and sued Demon Internet for transmitting a message which he claims was defamatory in a Usenet discussion of Thailand. The message was apparently posted by a Canadian pretending to be Dr Godfrey, who is a regular on the discussion group. What frightens many people is that neither the Canadian nor Dr Godfrey are customers of Demon Internet, whose role in this appears to derive from their status as the largest British-based ISP.

The traditional defence for ISPs like Demon has been that they are no more responsible for what comes down their wires than BT is. You can't sue BT for libel even if I use their lines to fax a libellous statement about you. But Usenet is different, for an important technical reason, which an earlier High Court judgement spelt out. The titanic flood of messages that constitute Usenet system far exceeds the capacity of any one person to read. Since Demon and other ISPs cannot be expected to read all of the messages they carry, it seems unfair to hold them responsible for the contents of any.

This is true, perhaps of email, or of web content. But the millions of messages that constitute the Usenet system do not flow directly from the writers to their readers. Instead, they are held on hard disks at Demon and other news servers and accessed by readers as they wish. In effect they are constantly retransmitted, at least for a week or ten days or until the disks fill up and fresh messages take their place. And if an ISP has been warned about the content of one of these messages, it can no longer claim ignorance. In effect, by making a decision to leave the message on its hard disks for users to download if they want to, it is publishing them rather than merely transmitting them.

That is the point of principle which has allowed Dr Godfrey to sue Demon for a message which it did not write and which may not have been libellous at all where it was written. I don't know. I haven't seen it. But clearly there are messages which would not be libellous in California and yet are potentially expensive here. The Demon case terrifies people because it suggests that the omnipresence of American standards of free speech, which lend the Internet so much of its charm, is only an illusion.

In theory, an ISP which has been warned that some of the material it is carrying is potentially libellous will have to inspect it and make a judgement. In practice, of course, everything that looks in the least bit dodgy will be thrown overboard. It's hard enough to get companies to stand up for their own opinions; it's quite unreasonable to expect them to stand up for other people's.  

Everything will end up as stodgy as print and this will be a real shame. For we already have print, with all the benefits and costs of legal regulation. In a new medium it was fun for the longest time to pretend that none of these constraints applied. It fitted, too, the intimate, uncensored pleasure of typing at a computer screen. You could say what you liked, and if it was worthless, it would be forgotten in moments. If it were profound it would be forgotten in moments, too, but that's showbusiness, or possibly journalism.