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Demon verdict threatens ISPs

Demon's defeat in court will send shock waves throughout the industry, according to experts
Written by Jane Wakefield, Contributor on

Yaman Akdeniz, founder of the Cyber-rights organisation believes the precedent set by the Demon court case could close down the smaller ISPs. "AOL and Demon may be in a position to fight such actions but there are 300 ISPs in the UK and many are not in a financial position to do so," he told ZDNet News. "ISPs do not want to be challenged in court and are likely to remove content, whether or not they think it is defamatory, as an easy solution," he said.

James Eibisch, analyst with research firm IDC, said the precedent makes a mockery of the ethos of newsgroups. "Newsgroups are full of flames," he said. "They are like real-life conversations, a text version of a pub. If someone gave their opinion in a pub and someone took against it, would the landlord be liable?"

AOL lawyer Clare Gilbert claimed the Demon case opens up deficiencies in the 1996 Defamation Act. "[The amendment] purports to give a defence to network providers for the vast volume of content passing over their service. The problem is that it then makes the defence disappear as soon as the provider receives 'notice' of infringing content, even if the ISP has no effective control over the content," she said in a statement.

Robin Bynoe, a partner in the law firm Charles Russel, said Mr Justice Moreland's verdict could have massive implications for the industry, describing the effects of the case as "potentially extraordinary".

He is not, however, convinced the judgement is fair. "It's stretching common sense to say that an ISP is a publisher in the same sense as a newspaper or that they are intimately involved in what is published," he said.

The implication of the judgement is that, once aware of publication, an ISP is liable, he added. "The moment an unannounced fax arrives on the machine, you are liable. In practical terms, it is a bit harsh," he said.

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