James Sturcke hears service providers claim obtuse libel laws are stifling freedom of speech on the Internet and only protecting one group – lawyers
The government faces severe criticism for failing to tackle the confusion over how defamation law applies to online publications, four years after a Law Commission report urged that the issue be clarified.
Experts who gave evidence to the 2002 inquiry have told Guardian Unlimited that "nothing has changed" since it warned that current legislation exposed a "possible conflict" with human rights' free speech requirements.
A senior source at the Law Commission, who was closely involved in the 2002 scoping study, accused the Department of Constitutional Affairs of using the commission's efforts as a smokescreen for inactivity.
"We gave it [the report] to the DCA," the source said. "We did not hear anything more from them. I got the feeling that it was government policy to do nothing at all about defamation. The government really, really, really did not want to touch it with a barge pole. I think giving it to us was one of the ways of stopping anything happening."
The issue has returned to the spotlight following the recent run-in between the parenting guru Gina Ford, and the mothers' community network, Mumsnet. Founders of the Internet site criticised current law as "antediluvian" after Ms Ford attempted to shut down the site when she took offence to comments on its forum.
Ms Ford's lawyers said that defamatory postings "too numerous to list in full" were appearing on Mumsnet, and included claims that she was "cruel, uncaring and justifiably reviled" because she suggested in a her book, The Contented Little Baby Book, that a five-month-old baby could be left to cry for three hours as part of infant training.
Although much of the offending material was removed from the site, Ms Ford's legal team wrote to Mumsnet's internet service providers, DSC Ltd, requesting the site be disabled with immediate effect.
The lawyers said DSC could be liable for defamatory statements if it failed to do so, even though neither the ISP, nor the Mumsnet moderators played any part in their authoring.
"We would not be in this situation were it not for the antediluvian set of laws that have failed to catch up with the reality of communication on the Internet," Mumsnet said in a statement. We think Ms Ford's actions against Mumsnet raise profound questions about the way freedom of speech is balanced against the protection of reputations on the Internet." So far, DSC has resisted the lawyers' request but warned that there were limits as to how far it would back its customers.
"At the moment there is no upside for an ISP defending action like this. We want to do right by our clients, but equally, we don't want to go out of business," the DSC managing director, David Adams, told the Register. "We're a small company, and my livelihood and that of my employees would be threatened by a big legal fight."
The need to clarify the issue of whether ISPs should be legally liable for the content of sites they host was a key finding of the 2002 Law Commission study, chaired by Mr Justice Toulson.
"In paper-based publishing, the claimant usually has the option of proceeding against a well-resourced newspaper or book publisher," the report found. "In internet publishing, the ISP is often the easiest defendant to locate, and may be the only one with the money to pay damages...
"There is a strong case for reviewing the way defamation law impacts on Internet service providers... [which] seem to be the tactical targets for those wishing to prevent the dissemination of material on the Internet. There is possible conflict between such pressure to remove material, even if true, and the emphasis placed upon freedom of expression under the European Convention on Human Rights."
Concerns emerged after the 1999 Godfrey case, when Demon Internet agreed to pay £15,000 in damages to a scientist, after failing to swiftly remove postings about him. Since then it has become common practice for ISPs to remove entire sites that are the subject of libel allegations, even if the material is in the public interest and well researched, the commissioners were told.
Mark Glacey, content regulation manager of Thus Plc, which operates Demon, told Guardian Unlimited that nothing had changed since the report was published.
"Our position on liability is exactly as it was back then. The issue we have is that anyone can complain about material on our server and we are liable for any content if we do not act to remove it. It puts us in a difficult position because we have to find the content and then decide whether it is defamatory or not. That should really be for a court. We have to play judge and jury.
"There is often a conflict there because our customers complain we are censoring their right to free speech. If it is a business, then that leaves us open to a counter suit from the website operators for loss of earnings."
Mr Glacey wants to see an independent regulator with the powers to judge what information should be removed. He suggested it could operate in a similar way to the Internet Watch Foundation which polices allegations of child pornography.
"Because of the way it [IWF] is set up we know that if they tell us something is illegal we should do something about it," he added. "But that kind of body does not exist for defamation. We would be happier if we had an independent body to judge it. We believe it could be self funding."
The Law Commission study suggested several possible reforms, including exempting ISPs from liability, as is the case in the US, and extending the innocent dissemination defence contained in Section 1 of the Defamation Act 1996. That protects broadcasters from legal action when someone says an impromptu libellous comment live on air.
Any extension would need to be accompanied by clearer guidance to ISPs on how to deal with the practicalities of receiving and responding to complaints, the 2002 report said. Guidance could be provided through an industry code, negotiated with interested parties. There may also be a case for including some form of independent adjudication within such a code, so that the decision on whether material could be justified could be taken out of the hands of ISPs.
Professor Hugh Beale, the law commissioner who lead the study, said "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, without considering whether the information is in the public interest or true. We have not reached concluded views on this issue but consider that it merits a full examination".
Mark Stephens, a media lawyer with Finers Stephens Innocent and who represented Mumsnet, wants to remove the tendency in UK online libel law to shoot the messenger.
"The concern is that if Gina Ford has a complaint it should not be with Mumsnet but with the people who made the claims. If you have a problem with what is being said, you take it up with who said it, not the third party."
He said current laws have "displaced freedom of speech" to jurisdictions where there is more freedom, such as the US. He is also concerned about how British libel laws are being used to prosecute alleged defamations that took place overseas on the grounds that the offending material was distributed online to this country.
Mr Stephens said trawling the Internet for cases was a consequence of the downturn of celebrity defamation actions which used "to put on the bread on the libel lawyers' table". In recent years more celebrities have employed PRs, who are cheaper to employ than lawyers, to drown out negative publicity.
"Basically libel lawyers are bottom feeding and trying to drum up extra claims," Mr Stephens said. "Lawyers in Britain use the Internet and approach people in California to say they will be delighted to represent them on a conditional fee basis on a claim which would not be libellous in the US but is in London." This has led to the "faintly ludicrous" situation where claimants have been "arbitraging" between different jurisdictions to find the best place to bring their libel actions.
"That is a complete abuse of legal process and brings our procedures into disrepute. Libel is about how you are seen in the eyes of your peers," Mr Stephens said. "There are serious concerns at the top of the court of appeal and house of lords. The law is wrong and something needs to be done about it. The Labour government commissioned the Law Commission report and then did nothing with it."
A Department of Constitutional Affairs spokeswoman said: "We are currently considering the issue with a view to consulting in due course. We have no date as yet."
No responsibility can be taken for the content of external Internet sites.