Law Commission calls for review of Internet libel.

By Steve Malone

Posted on 18 Dec 2002 at 11:57

The Law Commission today called for a review of the law covering defamation on the Internet. Its findings follow an investigation requested by the Lord Chancellor at the beginning of the year. He asked the Commission to look into whether the existing law forced ISPs and online publishers to remove Web sites from their service if someone claims a site is libelling them.

The investigation follows a ruling in 1999 by Mr Justice Morland against Demon Internet in a case brought against it by Laurence Godfrey. He had complained to Demon that it was carrying a site which libelled him. Demon refused to remove the postings, claiming 'innocent distribution'. However Justice Morley found that the ISP had no excuse as it had been told about the defamatory messages.

At the time the case was seen as a test case for the Amendment of the 1996 Defamation Act. Although Demon initially said it was going to appeal, it backed down and left a potentially dangerous precedent on the books. It means that ISPs have no defence if they believe the content to be non-defamatory. As a result, ISPs who are 'informed' that material is potentially libellous tend to cave in rather than fight a potentially expensive legal battle.

The Commission says that the situation now means that ISPs feel bound to remove sites even if they feel the content may be true or in the public interest to be published.

Law Commisioner, Professor Hugh Beale QC said, 'When a Web site carries material to which someone objects - rightly or wrongly - it is often easier to complain to the Web site rather than to the author. We were told that some ISPs receive over a hundred defamation complaints a year - including solicitors' letters from companies objecting to Web sites set up by disgruntled customers. 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.

'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 on Human Rights. Although it is legitimate for the law to protect the reputation of others, it is important to ask whether this can be achieved through other means.'

The Law Commission says it has not reached a final conclusion but Professor Beale says that the law could be changed either to exempt ISPs from liability for libel posted on Web sites or to alter the Defamation Act of 1996 to widen the defence of 'innocent dissemination'.

In a statement, Mark Gracey, Internet Content Regulation Manager at THUS (Demon Internet) and member of the Internet Service Providers Association (ISPA) Sub-Group on Content Liability, said, 'At Demon we concur wholeheartedly with the ISPA in welcoming the Law Commission's report into defamation issues with the Internet. We believe that the question of responsibility for content hosted on the Internet has demanded attention for several years, and we look forward to the full legal review recommended by the Commission. We see this as an ideal opportunity to work towards codes of practice to help ISPs deal with liability for defamatory content.'

'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.