A Web site repeating the libels against McDonald's is being read by millions. What can the company do?

By Tim Hardy.

The Independent (UK); 2nd July 1997

While McDonald's proved in court that some of the allegations made against it were untrue, it failed spectacularly to stop future publication. Not only has it suffered from the insatiable appetite of the media for juicy morsels disclosed during the trial but also supporters of the defendants Helen Steel and Dave Morris, in a two-fingered gesture, have established a hugely successful Web site, cheekily entitled McSpotlight, which has been accessed more than 13 million times since opening in February 1996.

As well as the original leaflet, What's Wrong with McDonald's, there are 21,000 files, containing highly defamatory material. There is even a copy of McDonald's own Web site, with a commentary on alleged "omissions and inaccuracies".

It would be a brave person who repeated libels against a corporation that had just spent 12 years and #10m refuting those allegations, or so it would seem. Under English law those responsible for writing or collating the material on McSpotlight will be liable to anyone it defames. But who are those individuals and why have they not also been sued?

McSpotlight is run by volunteers working from 22 countries who have established four identical, or "mirror" sites, based in Holland, Australia, New Zealand and the United States. It would be an immense task to infiltrate each of those groups and then it would be a matter of local law whether any relief was available. Anyway, judging by the level of support, if one volunteer was restrained, like a many-headed Hydra, two more would appear.

What about the internet service provider (ISP)? If it is impracticable to sue those responsible for putting the information on the Web, what about the ISPs who facilitate publication. If they are not authors, can they be liable as editors, publishers or distributors?

That was anticipated by the Defamation Act 1996 but it does not provide a complete answer. Traditionally plaintiffs sue everyone in sight, including distributors and newsagents. In an effort to stop that the Act provides a defence to those who can establish they were not the "author, editor or publisher". Helpfully the Act also provides that an ISP who is only selling the electronic medium containing the libellous material cannot be any of these. However, it does not end there.

To avoid liability, ISPs must also show that they took reasonable care and did not know, or have reason to believe, that they were contributing to the publication of a defamatory statement. The objective is to protect an innocent disseminator of information who has no effective editorial control over the publication - but this puts the ISPs in a Catch 22. On the one hand they may have a defence if they exercised no editorial control but on the other, because of the requirement to take reasonable care, the defence may fail if they recklessly failed to take editorial control. There are as yet no decided cases to help solve this conundrum but similar issues have arisen in the US and Germany.

A US court exonerated CompuServe from the consequences of facilitating access to defamatory material because it had delegated editorial control to a third party. That was despite the fact that the defamatory material was published on a bulletin board CompuServe had established and provocatively named "Rumourville". Conversely, in another US case an ISP was held liable where it had tried to exert editorial control but had failed to stop the publication of the defamatory statements.

In some circumstances ISPs can block access to sites containing child pornography, so they may have effective control once notified of a problem. An ISP notified that a site is carrying defamatory material does exercise control when deciding whether or not to block access to that site. Any subsequent publication in the UK via that user cannot be said to be an innocent dissemination and may not be protected by the Act.

McDonald's could therefore notify all ISPs that the McSpotlight site contains material Mr Justice Bell has found to be defamatory and require them to block the site.

Does this have any relevance to the World Wide Web?

In the US the Supreme Court has ruled that a law to make it a criminal offence to allow minors to access pornography was contrary to the constitutional right to freedom of speech. In Germany, by contrast, criminal proceedings have been brought against the head of an ISP alleged to have knowingly allowed images of child pornography to be made accessible to customers. The company denies the charges, arguing that it cannot be responsible for vetting the thousands of sites accessed by its customers.

Of course different laws will apply to publications beyond the jurisdiction of the English court. Although there are more than 240 service providers in the UK there are thousands more worldwide and legal action taken in England will only have a limited effect, despite the EU's attempts to avoid multiplicity of proceedings in member states.

The European Court of Justice has ruled that only the courts of the state where the publication originated can award damages for publication of the same libel in other member states. The version of McSpotlight principally accessed by browsers in Europe originates in Holland and therefore any proceedings would have to be started there to take advantage of the wider jurisdiction. Alternatively separate proceedings would have to be issued in each jurisdiction and it is no coincidence that Dutch law is not first choice for libel plaintiffs.

Immediately after judgment Steel and Morris said, "Can't pay, won't pay", but, more significantly, their supporters declared their intention to continue publishing the same allegations. The defendants' penury became a strength in their battle but different considerations will apply if McDonald's seeks to take on the ISPs. The complexity of the legal issues and the size of the Internet are such that even the most spirited litigators are likely to be deterred. Consequently the Internet may be responsible for one of the greatest advances in the history of the development of freedom of speech since the French Revolution. Certainly it has been the quietest revolution, as yet unrecognised by millions who use the Internet every dayn

Tim Hardy is head of litigation at the City law firm Cameron McKenna.

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