A global treaty is needed to harmonise libel laws, which are forcing many ISPs to take down Web sites for fear of being sued, according to the influential Law Commission.
In a report to the Lord Chancellor's department on Wednesday, the Commission put a "strong case" for reviewing the liability of ISPs, saying that although freedom of expression may legitimately be restricted in order to protect the reputation of others, "it is important to ask whether this goal can be achieved without the regular removal of material which deals with matters of public interest and which may be true."
The Commission suggested several possible reforms. One is to follow the US example by exempting ISPs from liability. Another is to consider extensions to the innocent dissemination defence contained in section 1 of the Defamation Act 1996. "If the defence were extended," said the commission in its report, "it would need to be accompanied by clearer guidance for ISPs on how to deal with the practicalities of receiving and responding to complaints, possibly through an industry code."
Any review would face obstacles, noted the Commission, because the law is complex "and attempts within the EU to create greater legal certainty have added new ambiguities."
And while a global treaty would be desirable, the Commission said it has some sympathy with the concerns expressed about unlimited global risks. Any review should not be hurried, said the Commission, and there is need for more research into how other governments deal with the issue. "There is a lack of readily accessible information about how the law of defamation impacts on the internet in other jurisdictions, to the detriment of both policy makers and practitioners."
In the meantime, said the Commision, the criminal justice system in the UK should continue to trust the good sense of jurors to decide cases on the evidence before them. But while the commission does not see a need for an urgent review of the law, ISPs do.
ISPs at the Service Provider Europe conference in London's Earls Court Exhibition Centre recently reported a rapidly increasing incidence of take-down notices for copyright infringement material, although defamation and libel complaints have abated. Even so, according to a preliminary survey by the UK's ISP Association (ISPA), 27 percent of take-down notices are related to defamation complaints.
The survey is being conducted as part of a bid to rationalise the process of removing possibly illegal material. As the burden on ISPs increases, it is becoming increasingly difficult for them to fairly deal with cases where people or companies feel their copyright has been infringed, or where they feel they have been defamed. While ISPs have a duty to remove offending material, they say that because they also have a duty to their customers, the current situation in which they have to act as judge and jury is untenable.
ISPA is gathering the data to illustrate the growing problem with take-down notices in a bid to persuade the government to publish a code of practice that, it says, should effectively remove liability from ISPs. The work is being done by ISPA's sub-group on content liability. The sub-group spokesman Mark Gracey, who is also legal liaison manager at ISP Thus, said take-down notices are a huge burden, with each case costing between £50 and £1,000 to deal with.
"Anybody can put us on notice of take-down," said Gracey. "There is no standardisation of processes -- a ten-year-old child can do this by writing the notice on the back of a cigarette packet." At Thus, said Gracey, the number of take-down notices for alleged copyright infringement is "going through the roof".
But removing content -- whether because it is said to infringe copyright, defame somebody, be criminally racist or break laws such as the Obscene Publications Act, is not a simple process and can lay ISPs open to legal action.
"ISPs are rarely aware of the full facts of the case and could easily make a wrong decision," said Gracey. "ISPs are at risk of liability from the person giving notice and from their customers. Do we take down the content when asked by a complainant and if so, should we put it back when our customer who posted the content in the first place tells us to? We are the piggy in the middle. We are playing judge and jury."
ISPA is trying to encourage complainants to make contact with the person or organisation who posted the material in question, rather than the ISP. But there is an urgent need for a code of practice that would create a standard form for take-down notices and dictate who can issue them, sad Gracey. It should also address the issue of how and when content should be put back on the Internet if the ISP's customer is able to prove that it does not infringe any laws. "Rights holders do have rights, but we also have to consider the rights of our customers. Infringements are not always what they appear to be."
"There is also the notion of a safe harbour for ISPs, to provide freedom from liability," said Gracey. "That's what we need the government for." However, he said, any code of practice would take some drafting. "It has to be fair to ISPs, to their customers and to the complainants."
Gracey said the DTI does appear to be receptive to the idea, "but the government is still saying it is no convinced there is sufficient reason to go ahead." ISPA hopes to use the results of its survey to get across the fact that there is a big problem, and ISPs interested in filling out the survey or contributing their own horror stories should contact ISPA.
Gracey knows the problems as well as anybody. Thus owns ISP Demon, which in 1999 lost a defamation case brought by scientist Laurence Godfrey over comments posted on a Usenet conference hosted by Demon.
In that case the judge ruled that Demon's defence of innocent distribution was untenable because the ISP had been informed about defamatory messages.
The Law Commission's report comes a week after Australia's highest court ruled that a defamation case sparked by a story on a US Web site can be heard in Australia, opening a legal minefield for Web publishers over which libel laws they must follow. The landmark ruling that an article published by Dow Jones & Co is subject to Australian law -- because it was downloaded in Australia -- is being watched by media firms as it could set a precedent for other cases.
Debate centred on whether an alleged defamation was published in the US state of New Jersey, where Dow Jones's Web servers are located, or in Victoria, where some readers saw the story.