by David O'Toole

Don't get me wrong the Internet and most especially the World Wide Web has revolutionised and democratised the process of publishing. In the past few years it has become possible for almost anyone to publish anything from erotic material to a political treatise. A vast amount of material is now available instantly and from almost any part of the world. Almost none of this has been subject to any form of regulation or censorship. Seemingly, now, anyone can "have their say". If you think you are not subject to censorship, though, think again.

In March of 2000 a libel case judgement was handed down by the Crown Court in London. Mr Justice Moreland found in favour of Lawrence Godfrey, a UK physicist, and against Demon the internet service provider. The substance of the case was that early in 1997 a posting was made to a news group soc.culture.thai by an unknown person which libelled Godfrey. Eventually the posting made its way from American databases to Godfrey's ISP, Demon Internet. Godfrey requested that Demon remove the posting and Demon refused. The posting was only removed , in fact, when it expired.

The case was groundbreaking in that it held that Demon was responsible for the content that it carried and any libellous or defamatory message that it contained. The consequences for others now are that ISPs who have knowledge of defamatory material on their databases will be liable in defamation as if they were in fact the authors of that material.

Of course the common sense response to this is that Godfrey received justice at the hands of a British court against an unprovoked and cowardly attack. And of course it was a cowardly attack, as it was prosecuted from the cover of anonymity. As for the content of the postings, due to the nature of the libel laws in the UK I have not seen it reported, although I am sure that given sufficient interest I could find it easily somewhere on the Web. I do not have that interest.

What does concern me though are the ramifications that this judgement has for free speech.

This common sense approach says that any use of free speech which results in a persons feelings being hurt, or their reputation being damaged, is an abuse, and should be stopped. But Godfrey as a physicist has ideas which he wishes to promote or argue in favour of. (One of he original purpose for which the Internet was set was the free exchange of ideas amongst academics.) By doing so he was entering the public arena and was no longer an innocent victim. The judgement does not, in any case, punish those who libelled Godfrey, whose attackers I would in no way defend, but serves only to close down public arenas for debate. Neither has Godfrey restricted his attacks to one ISP but has already brought cases against ISPs in America, Canada and New Zealand and won damages from a Melbourne-based Australian ISP.

The idea that attacks on free speech via the libel laws protect the individual is risible as the most common use of libel in Britain is by the rich to silence their critics.

Free speech which has its limits cannot in any way be construed as free speech. Like being pregnant there are no halfway houses. Either you have free speech or you don't. Free speech is necessary for meaningful debate and necessary for democracy. It should not be lightly thrown away for the argument that someone's feelings have been hurt or for the avaricious demands of "compensation culture".

The nature of British libel law is such that Britain has become the libel capital of the West. Individuals here do not have the protection of the right to free speech contained in the First Amendment. Journalists do not have the protection of a "public interest" defence as they do in the U.S.. And now ISPs do not have the status of "common carrier" as 'phone companies do.

ISPs aren't interested in the defence of free speech, they are merely businesses hoping to make a profit. They will now be inclined to remove (censor) anything which they merely judge will give offence.

It will not be worth their while to weigh the legality of a given piece. The censorship of Internet material, then, will proceed without the inconvenience of courts, the unreliability of juries, or the complication of constructing a proper case.

References

BBC News UK - Gagging the net in three easy steps.