In the first defamation case of its kind in the UK, Demon Internet is fighting a High Court battle with a British scientist over defamatory remarks posted in a news group.
"Nonsensical", "deeply worrying" and "untenable" are a few of the phrases that legal experts have used to describe the latest development -- a pre-trial defeat for Demon -- in this landmark case. Justifiably so.
At last Friday's interlocutory hearing -- a gathering before the main trail -- Mr Justice Morland struck out Demon's defence of "innocent dissemination" or "innocent distribution" (Section 1 of the Act). The clause was introduced to protect ISPs, which handle large volumes of content from unknown authors, from liability. Ironically, it was this clause that scuppered Demon because it also states the ISP must be unaware of the defamation. In 1997, the Plaintiff faxed Demon asking for the "obscene" message to be removed.
Demon failed to remove the message.
Therein lies the problem, said Karen Mason, Demon's head of legal services: "We get complaints all the time by fax, phone and letter. When do we decide they're defamatory?" Mason argued that it is unreasonable to expect ISPs to police the Net. "Individuals can remove material themselves in the first instance. We can only remove material from our servers. We have no record of what was on the news group so far back," she said.
Legally, other ISPs may find themselves in the same creek without a paddle. "You cannot rely on 'innocent dissemination' as a defence. This is the key issue -- the law is open to interpretation," said Demon Internet's managing director David Furniss.
Policing a news server's content is "untenable", according to AOL's legal counsel and ISPA member Claire Gilbert. "Effectively, an ISP is liable as a publisher. It goes against everything ISPA is working towards. The Defamation Act is ill-thought out," said Gilbert. It presents a frightening landscape for small ISPs, said Gilbert. "They run the risk of expensive law suits if they fail to remove a defamatory statement and may end up removing content out of fear."
What about e-commerce legislation? The future looks bleak. "Imagine the worst case scenario, an e-business site gets taken down, there's loss of revenue. Clearly, we need a change in the law," said Mason.
Should the law be changed? Should the judge be changed? Is Demon responsible for the content posted on its servers? Should the UK be looking at prosecuting ISPs for the messages left by anonymous persons?
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