Time for another set of serial posts, in which what I’m hoping to do is follow up the discussion on a couple of threads, last week, about seeking changes to the UK’s current berserker libel laws, by laying out a framework for the kind of changes we should be looking for and the arguments that can be advanced to support our position.
Before getting into this, I will say that what I’m not looking to do is lay out a manifesto for near absolute freedom of speech – in fact much of what I’m going to suggest will fall a little short of even the existing framework that exists in the US, which many of would dearly love to see in the UK.
But this is Britain, and I am keenly aware of the fact that by fail the easiest way to fail in our efforts to bring about change is to create the impression that we’re arguing from an extreme position and seeking to re-write the rulebook exclusively in our favour. To stand any chance at all, there needs to be an element of compromise and a realisation that the British way of doing things is one of evolution and not revolution – and, of course, it has to be remembered that some people do get libelled and that justice demands that they have access to reasonable and fair means of seeking and obtaining address.
This first post, therefore, confines itself purely to considerations of the current position of UK-based ISPs and Web hosts and the potential liabilities they can face when they received a complaint about third party content hosted on their servers.
This, I strongly feel, is where there is immediate scope for action by bloggers, by means of publicising the argument and working constructive with MPs to try to secure a private member’s bill to amend the UK’s current defamation laws, or a manifesto commitment (if a general election is called) supporting these amendments.
This also provides the greatest scope for building alliances with other groups who have similar interest in these changes or, in the case of ISPs and their industry association, should have a clear interest in support these changes, from which they will benefit considerably.
What follows is my proposed framework for change, which is there to be discussed, debated, argued over and pulled to bits, if necessary, in order that we can pull together a consensus as to what we’re aiming for before we start to think in terms of strategy and how we go about lobby to get our agreed position onto the statute books.
1. The Status of ISPs, Web hosts and bloggers/forum owners.
As the actions of Fasthosts towards Craig Murray, Tim Ireland and Clive Summerfield clearly demonstrate, ISPs and Web hosting companies based in the UK are currently the weakest link in the chain of protecting the right to free speech on-line.
The problem facing UK-based ISPs and webhosts comes in two main parts.
The first is the 1999 ruling of the High Court in Godfrey vs Demon Internet Service, under which ISPs and Web hosts are held to liable for defamatory material hosted on their servers, should they fail to respond immediately to a complaint by removing the offending information.
This is actually far from being a straightforward case of libel.
The case or rather cases, as Godfrey brought two actions against Demon, did not actually go to a full trial. Instead Demon settled out of court, largely as a consequence of ruling by Mr Justice Moreland on a pre-trial motion which held that an ISP could be sued for libel and that any transmission of defamatory material by an ISP constituted a publication under the UK’s defamation laws.
Of the two actions, the first related to an allegedly spoofed post that was merely mirrored on Demon’s servers, having been posted to an open newsgroup by someone who was not a Demon customer. The second action did relate to a later posting by a Demon customer, which was posted directly to Demon’s servers and at least part of the difficulties it got into stemmed from inconsistencies its its approach to such complaints; Demon would remove allegedly libellous newsgroup postings made by its own customers but not those made by non-customers which turned up on their servers due to their mirroring open newsgroups.
Having been denied the ‘common carrier’ defence, Demon went on to mount a second line of defence based on the claim that other posts allegedly made by Godfrey – and he disputed that they were his work – had provoked the allegedly defamatory response about which he was complaining to the court. This turned out to be a mistake as it served only to antagonise the trial judge, Mr Justice Moreland, and arguably made what was already a bad situation even worse.
In truth, this is a dreadful case on which to base precedents that are crucial to the capacity of bloggers to exercise their legitimate right to free speech, one in which Demon, by their own actions – or rather inaction in the case of Godfrey’s initial complaint – shot themselves and the British blogosphere in the foot, although they could hardly have been aware of this last facet of the case at the time.
The second part of the problem stems from the European Union’s e-Commerce directive (2000/31/EC), which aims to harmonise laws governing electronic commerce across the European Union.
In theory, this should have helped to sort out much of the mess created by Godfrey vs Demon Internet – articles 12 to 15 inclusive set out a framework that, if applied correctly, should form the basis of common carrier status for ISPs and webhosts, removing them from the risk of liability for third party content hosted on or transmitted by their servers.
Unfortunately, articles 13 and 14, which deal with the caching of content by ISPs and the provision of hosting services are written in very loose and open ended terms when it comes to the matter of ‘takedown notices’. Webhosts are not held to be liable for ‘illegal content’ – which includes allegedly defamatory material – hosted on their servers, provided that they are unaware of its presences of alleged illegality (and the same goes for infringement of intellectual property rights, etc.) nor are ISP responsible for the content of caches on the same basis.
However, unlike the provisions of article 12, which deals with the transmission of content, under which ISPs are required to take action to block the transmission of content only where ordered to do so by a court or ‘administrative authority’, in articles 13 and 14, the text talks only of whether or not the ISP/webhost has ‘actual knowledge’ that they are hosting potentially illegal or defamatory content and is not ‘aware of facts or circumstances from which the illegal activity or information is apparent’ while requiring that ISPs/Webhosts act ‘expeditiously to remove or to disable access to the information’ in order to avoid liability, as can be seen below in the full text of article 14(1) of the directive, which deals with hosting:
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
In leaving open the question of exactly what constitutes awareness of the fact and circumstance under which hosted/cached content my be deemed to be unlawful or libellous for the purpose of establishing and ISPs/Webhosts liability for such content, the EU have allowed for this to interpreted in terms of their simply receiving a complaint from an aggrieved party, which may amount to no more than the allegation that content is libellous without any evidence to back up such an allegation or the allegation being tested before a court of law.
This is what makes ISPs and Webhosts the weak link in the chain of of free speech.
Faced with a complaint that third party content hosted/cached on their servers is defamatory; this nothing more than an untested allegation that the complainant need not substantiate, ISPs/Webhosts are put into the position where they can either remove the content, regardless of the content author/owner’s views on the matter, or risk being held liable for that content and face the prospect of expensive litigation.
Given that situation, and knowing full well that, in most cases, they are much better target for litigation than an individual blogger, who is unlikely to have the kind of personal assets to make them worth suing, ISPs/Webhosts are always likely to cave in and remove the content, if not shut down the author’s account entirely. What commercial business, after all, would willingly lay out thousands of pounds in legal fees and take on the risk of an award of punitive damages for the sake of defending a customer who may be paying no more than a couple of hundred pounds a year into the company’s coffers.
So, as bloggers, what can we do?
This is as clear a case of a situation in which the law is an ass and needs changing as any I can think of, and yet one that could be readily sorted out by a few simple changes to the UK’s defamation laws, which could be effected by a private member’s bill.
The central issue is the question of what constitutes a legitimate ‘takedown notice’ for the purpose of activating the duty of an ISP or Web host to step in and remove defamatory content or risk being held liable for that content under the UK’s defamation law.
Under existing UK and EU law, this is left entirely open to interpretation in statute law, but is effective defined by the precedent in Godfrey vs Demon Internet as amounting to no more than a complaint containing and untested and unsubstaniated allegation of defamation. Such a situation is clearly unfair, inequitable and contrary to the principle of free speech.
It is also, I would strongly contend, incompatible with the provisions of the European Convention on Human Rights (and our own Human Rights Act, of course) as the law, as it stands, gives rise to breaches of articles 10 (Freedom of Expression) and 6 (Right to a fair trial) of the convention.
The argument here is fairly straightforward. Article 10 provides from the right to free expression as follows:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Freedom of expression is, of course, a qualified right and therefore subject to certain restrictions where this can be justified in the wider public interest, e.g. one cannot claim free expression as a defence if charged with the offence incitement, or conspiracy, nor can one justify a breach on confidence on grounds for free expression where there is no legitimate public interest in the information disclosed. And, of course, the right of free expression is qualified in terms of the ‘protection of the reputation or rights of others’, as it should be, allowing for laws covering libel and defamation and the protection of intellectual property rights.
This is fine so far as it goes, but what article states in setting the framework under which the right to free expression may be legitimately regulated and subject to restrictions is, specifically:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society…
The key phrase here is ‘as are prescribed by law’ and the applicable here is articles 13 and 14 of the e-Commerce directive, which having be incorporated in UK statute law (in 2002, I believe) after the common law ruling in Godfrey, supercede the test of liability applied in that case – the UK’s uncodified constitution operates on the basis both that statute law overrides common law and that the most recent statutes override earlier statutes, even if those earlier statutes are no explicitly repealed at the time that an Act of Parliament or statutory instrument is given the Royal Assent. In effect, if its found that two (or more) laws provide for conflicting interpretations, the court’s are required to abide by the provisions of later rather than the earlier law.
This, in turn, requires that liability is established – and the duty to act to remove defamatory content activated – only when an ISP or Web host attains ‘actual knowledge’ of illegal activity or is made aware of the ‘facts and circumstances’ from which the illegal activity is ‘apparent’.
What this clearly appears to imply should be in place, even now, is a test of competence against which this duty to act to remove ‘illegal’ content, and liability for that content, needs to be assessed.
Given the receipt of complaint alleging that content hosted on a Web hosts server or stored in an ISPs cache is unlawful, the question that has to be posed and properly address is that of whether the ISP/Web host can be reasonably thought competent to assess the validity of the complaint and, therefore, make an adequate determination of the facts and circumstances sufficient to make the illegality of the content apparent.
In many cases, this will be self-evident – things like child pornography and blatant copyright infringements (‘warez’ sites, MP3 downloads, etc.) are going to be pretty clear cut, and are generally already provided for in the terms and conditions under which hosting services are provided.
When it comes to libel and defamation, however, it will be a rare occasion indeed in which an ISP or Web host is capable of acting as a competent authority in assessing the facts and circumstance of an allegation of defamation against a blogger or a website/forum operator, let alone that a blogger or forum operator should be thought capable of exercising such fine judgements in respect of comments posted to their blog/forum.
If the test for liability and the duty to remove content is one of ‘fact’ then the facts have to assessed and determined by a competent authority in order for the e-Commerce directive to be interpreted correctly in line with article 10.
Moreover, article 6 states, explicitly that:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
This, in the case of freedom of expression and allegations of libel/defamation, is no more and no less than bloggers expect and yet this is not what is happening at the present time as the current legal framework under which ISPs and Web hosts risk liability for third party content if they fail to respond to mere unsubstantiated allegations of defamation creates a situation in which bloggers are denied even the possibility of having their day in court. Our civil rights are, by default, being determined arbitrarily by employees of private companies, who can in no we be thought competent to assess the facts of an allegation of defamation (not that the complainant is under any obligation to substantiate their complaint with any facts other than that they consider something to libellous) in circumstances where the ‘facts’ are considerably less important than the avoidance of an unfair and iniquitous liability.
Consequently, one can argue that the construction of articles 13 and 14 of the e-Commerce directive, not to mention the ruling in Godfrey vs Demon Internet, both act to deny bloggers their right to defend their civil rights (freedom of expression) when faced with an allegation of defamation/libel by giving rise to a situation in which the requirement that ISPs/Web hosts remove ‘defamatory’ content in order to avoid liability for that content precludes bloggers from exercising their right to due process in law.
Ah, but ECHR (and HRA 1998) are only binding on public authorities – which naturally excludes ISPs and Web hosts – which is entirely true, there is no possibility of Craig or Tim suing Fasthosts for breaching their human rights under ECHR, nor should there be.
Nor, if I’m correct in my thinking, is it possible to seek a judicial review of the current law on the strength of a private suit against an ISP from breach of contract, although should an ISP find themselves in court such an argument could be deployed in an effort to overturn the pre-trial ruling in Godfrey vs Demon Internet Services. In that case, no consideration appears to have been explicitly given to the potential implications of HRA 1998. Instead the main legal argument rested on the correct interpretation/construction of the defence set out in s1. of the Defamation Act 1996, which has proven to be next to useless as a consequence of Mr Justice Moreland’s ruling.
The purpose of this little foray into ECHR is not to suggest a judicial route to re-writing Britain’s libel laws but rather to construct a solid argument for changes in existing statute law, this being where the solution to this immediate problem lies.
What is needed are amendments to the s1 of the Defamation Act that would create, for ISPs and Web hosts in the UK, a position similar to that enjoyed by their US-based counterparts under the terms of s230 of the Communications Decency Act, the overriding principle of which being that:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
This would remove from ISPs, Web host and, indeed, bloggers and forum operators who provide an unmoderated comment system, the risk of liability for any content other than their own.
That is the ideal.
However, this being the UK and lack, as we do, a constitutionally protected right to free speech of the strength and solidity of that provided by the First Amendment to the US Constitution, such aspirations do need to be adapted and moderated, somewhat, suit British conditions. In short, to have fighting chance of lobbying successfully for such changes in law, we need to be reasonable and argue for a balanced solution, one that affords reasonable protection for free speech without unfairly closing the door to legal redress for those who are genuinely libelled.
We cannot expect a blank cheque, nor would arguing for one get us anywhere in the British parliamentary system.
What this suggest to me is that the right approach is not to seek a blanket exemption from liability for third party content or the duty to remove such content should it prove to libellous but rather to seek to ‘gold-plate’ the issuing of ‘takedown notices’ by reserving the right to issue such notices to a competent legal authority – namely a court of law.
One cannot, I think, reasonably argue that, in relation to libel, the general right to free speech can legitimately override a ruling by a court that a particular published statement or allegation is libellous, or that where a court has made such a ruling, it unreasonable to expect a blogger, website owner or forum operator to remove the offending statement and provide an apology and correction – this being only what a court would order in any case.
By the same token if, for any reason, the author of such a statement cannot or will not effect its removal, then it not unreasonable for an ISP or Web host to carry out the actions specified by the court and, of course, be held to be liable for that content in law should they fail to do unreasonably and expeditiously.
(In the case of the author – if identified – ‘will not’ would be treated as contempt of court and create grounds for further exemplary damages where ‘cannot’, which is the more likely scenario, would not. One has to be reasonable in expectations such that an blogger in this kind of situation would not reasonably be expected to track down cached or archived copies of the offending post or re-posts of such material by other bloggers)
In such a situation, the ISP would still not be considered to be the publisher in law of that content, but would be open to proceedings for contempt should they fail to comply with a court order or injunction.
In all case where it is possible to identify the author of the defamatory content, such a system would provide a fair and equitable basis for dealing with allegations of defamation. By removing the immediate threat of liability from ISPs and Web hosts (and, yes, bloggers and forum operators too) it falls to the author of the disputed content to decide whether to cut and run or stand and fight, and to the complainant, of course, to decide whether to seek legal redress in the court, depending on how the author responds to their complaint. That is only as it should be.
And once a judgement on the legality, or otherwise, of such content has been made – subject to the general vicissitudes of Britian’s libel laws, which I’ll come on to in a future post – there can be no grounds for complaint should a court order such material to be removed for a blog. forum or website nor should it become necessary for an ISP or Web host to step into the breach and carry out the instructions of the court.
Moreover, by taking this onto a proper legal footing, it becomes possible for the complainant to obtain to some relief for the alleged libel immediately on instituting legal proceedings against the author (or publisher). Given that we are dealing with disputed content, it seems reasonable for a court, on receipt of an application to begin legal proceeding for libel, to grant a temporary injunction ordering the disputed content to removed from public sight until such time as the case is concluded either by out of court settlement or by a ruling from the court.
This again, is a reasonable a proportionate response to such a situation – far more so than that of bullying ISPs and web hosts into arbitrarily removing third party content.
This leave only, then, the question of what to do with content that is posted or published anonymously, such that it not possible to identify an author against whom legal proceeding can be instituted.
Again, what is called for is a reasonable response.
It is reasonable, for example, to expect that, where they have the technical capability to do so, bloggers, forum owners, ISPs and Web hosts comply with reasonable requests for information that may assist the plaintiff in identifying the author of an allegedly defamatory statement. This does have to be governed in a reasonable manner, which means, of course, that such disclosures, if not made voluntarily, should be predicated on the plaintiff obtaining a court order and be specific to matter of the alleged libel rather than a pretext to carry out a general ‘fishing expedition’ for information.
Where it not possible for, whatever reason, to identify the author then it would also be entirely reasonable to permit plaintiffs to apply to the court for a summary ‘John Doe’ judgement requiring the removal of the allegedly libellous material on the grounds that no defence of the material in question has been presented – although, once again, this would be on the basis that the blogger, forum owner, etc has no liability in law for the content in question unless they fail to, or refuse to the comply with, an order issued by a court.
This would, of course, have some small impact on bloggers who allow completely anonymous comments, or rather on the commenters, themselves, who would find that the mere option to simply post under as ‘anonymous’ or under a pseudonym and by giving a false e-mail address is no longer quite the license to say what they like, when they like without fear of comebacks and would, in addition, provide a major disincentive to the dishonesty use of sock puppets by some less scrupulous bloggers, in to create the fiction that they are several steps removed from defamatory material that they lack the courage to post openly.
To some bloggers, such a situation would be broadly welcomed – at the very least I would argue that you cannot make an omelette without breaking a few eggs and that the possibility of curbing some of the excesses that come with anonymous posting and sock puppetry is a fair price to pay for the added protection that the changes I’m suggesting would afford those bloggers (and others) who publish the views openly and honestly.
So, to sum up…
The suggested objective is to seek a change in legislation, by way of a private member’s bill, which places the issuing of ‘take down notices’ in cases of alleged online libel/defamation onto a proper statutory footing such that it is for the courts to determine the facts and circumstances of an allegation of libel. And, as a consequence of these changes, provided that ISPs, Web hosts, bloggers, forum operators, etc. work to the general framework set out in articles 12 to 15 of the EU’s e-Commerce directive, legal liability for third party content that is alleged to be defamatory will be limited to situations in which a court has ruled on the content in question and issued instructions as to its removal, etc.
How say you…
As if to reiterate why we should be doing this, Richard Brunton has his own tale of corporate bullying to tell – just read it.