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11/05/00 . Ian Katz . The Guardian Censorship struggles . UK
The British courts seem to be getting it wrong about free speech on the internet
Imagine you lived in a primitive island community. One day a bright spark - let's call him Fred - offers to carry messages between islanders, a service that rapidly becomes very popular. Then he has another good idea: he clears one side of a big tree and encourages people to carve messages on it.
Who should be held responsible if one islander defames another, or wrongly accuses him of a heinous crime? Simple, surely: whoever wrote the message. At any rate, not Fred. But what if Fred begins removing messages he does not like from his tree? And what if it becomes impossible to track down the authors of specific messages?
Judges and lawmakers around the world are currently grappling with similar questions as they struggle to frame a new set of rules for another primitive community. Last week's ruling by the US supreme court that an internet service provider (ISP) could not be held liable for statements made by one of its subscribers highlighted how far we are from agreeing about how the laws of the old, unwired world should be applied to the wild reaches of cyberspace.
In the American case a New York lawyer had sued the net company Prodigy after an imposter sent obscene and threatening messages purporting to come from his 15-year-old son, Alexander Lunney. Messages had been sent to an individual and a bulletin board.
The case was thrown out by New York state's highest court in a ruling (the one upheld by the supreme court) that smacked of common sense. "Email is the day's evolutionary hybrid of tradi tional telephone line communications and regular postal service mail," observed Judge Rosenblatt. "In this respect, an ISP, like a telephone company, is merely a conduit."
Rosenblatt conceded that the status of bulletin boards was trickier, but ruled nevertheless that Prodigy could not be considered to be the publisher of the bulletin board because it did not edit the vast majority of postings.
On the face of it the Lunney decision appears diametrically opposed to what passes for case law on this side of the Atlantic. In the only ruling on the subject to date, Mr Justice Morland decided that the internet company Demon was liable for defamatory comments posted about the physicist Laurence Godfrey because it acted as publisher.
The decision wasn't quite as draconian as it sounds: the judge ruled that Demon be came a publisher only after Godfrey complained about the postings on a newsgroup. Until then it could claim it did not know the content of the material it was disseminating and could not therefore be held responsible.
Fair enough? Perhaps, until you consider what happened next. According to lawyers in the field, service providers are now routinely shutting down sites as soon as they receive a complaint. "They say they just can't take the risk," one told me. ISPs were reluctant for the extent of their self-censorship to be known, she said, for fear it would trigger more complaints.
If all this sounds messy, consider that some of the trickier questions haven't even been addressed by a court yet. What, for instance, if someone posts a defamatory message on a bulletin board maintained by a pub lisher like the Guardian? Will they be considered publishers of all messages on the boards? If they were, few would take the risk of hosting discussion areas at all and a vibrant, democratic area of the internet would be snuffed out.
A lot of nonsense is talked about freedom of speech on the net. Is there any philosophical reason why people should be allowed to say things on the net that they can't say in the real world? Of course not. But there are practical reasons why they can and will continue to.
Quite simply the net cannot be policed the way the real world is. Remember what happened during the McLibel case: while lawyers fenced in the High Court, Ronald McDonald's foes made sure every last allegation was available from several websites around the world. When the company attempted to shut down one site, its online detractors promised that at least two more would carry the material. In the face of this hydra-like threat, a corporate giant was forced to retreat.
Those of us who admire the American approach must also be comfortable with the idea that ISPs should be compelled to finger alleged defamers where possible. But the nature of the medium means that it will always be easy to post information anonymously, or to do it from a country where you face little danger of legal action.
Given the difficulty any victim of an online slur would have tracking down their accuser, it is hardly surprising that the aggrieved parties go for the messenger. And, however much you care about freedom of speech, it doesn't seem right that Alexander Lunney and Laurence Godfrey should have no way of protecting their reputations in cyberspace.
Ultimately the courts will have to rethink the perpetual compromise between freedom of speech and the right to protect your reputation. Last week's US Supreme Court ruling suggest our courts have got it wrong. The good news is that it will be difficult for them to keep it that way.