Wendy M. Grossman is the author of Net.wars.

In a decision that could have profound implications for freedom of speech on the Internet, a British pre-trial ruling on March 26 in London's high court by Justice Morland held that Internet service provider Demon Internet had to answer charges of distributing libelous information.

Demon will appeal the ruling, but in the meantime, the damage is done. Because neither the poster nor the plaintiff was a Demon subscriber, all British ISPs must feel vulnerable.

A different world in Britain

The action, brought by British scientist Laurence Godfrey, a well-known Usenet personality since at least 1993, claims that on Jan. 13, 1997, an unknown person in the United States posted a forged obscene message to soc.culture.thai that defamed Godfrey by purporting to come from him.

The offending message was not removed

Godfrey says he faxed Demon founder and then Managing Director Cliff Stanford on Jan. 17 requesting the posting's removal but that no action was taken until the posting expired Jan. 27. (ISPs typically set a standard length of time for which they will store postings, after which the postings "expire" or are deleted to make way for new material; Demon's expiration was then set to two weeks.)

Demon's hopes rested on a section of the (British) Defamation Act of 1996, which gives ISPs a defense of "innocent dissemination" and holds them harmless if they continue to distribute illegal material of various types (including defamation) provided they are unaware of the material's existence on their servers. In the judge's view, Demon cannot claim this defense because it had been informed of the existence of the defamatory posting.

To anyone raised in the sacred shadow of the First Amendment, this all seems mad. But the core of the matter is that British libel law differs from its American equivalent in some significant respects.

First, the burden of proof is on the defendant (Demon) rather than the plaintiff. Second, those who distribute the libel, even unknowingly, may be held to have contributed to its circulation. In the print world, U.S. laws generally exempt booksellers and "common carriers" such as telephone services from liability, where British laws include booksellers and anyone who repeats the libel in, say, a newspaper report on the case.

The "public figure" defense beloved of American newspapers also does not exist in Britain, even though arguably everyone on Usenet can defend themselves against bad speech with more speech.

Alistair Kelman, a barrister specializing in computer law, believes the decision will stand on appeal. "If Demon had just set about putting some fairly sensible procedures in place regarding the replication of defamatory material," he says, "they would have been off the hook."

Responding to Internet libel

Demon says procedures are in place but declines to share details, pointing out, however, that a year passed between the time of the posting and the date the writ was issued, and that since then the company has changed hands. (It was bought by Scottish Power last year, and Cliff Stanford left the company to start a venture capital fund.)

When you read the decision and you look up Godfrey's history on the Net as recounted in the Net.Legends FAQ, your first reaction is to wonder why Demon simply did not delete the posting as requested. It is understandable that they should not delete someone else's posting without a court order, but why should they not help you squelch a forged posting that appears to come from you?

The problem is how does a company know a user's identity if the company is not the user's own ISP? An unrelated ISP, as Demon was in this case since neither Godfrey nor the unknown American posting the forged message was a Demon subscriber, has no good way of checking that for sure.

Godfrey had other alternatives. In my own haunts on Usenet, when someone's newsreader misquotes me as having said something I would not say if you paid me, I do not call service providers at random and demand deletion; I post a copy of the message with a note pointing out the incorrect attribution. In the case of a forgery that made a dangerously defamatory message appear to come from me, I would cancel it using Usenet's built-in features.

Neither of these options involves calling unrelated ISPs for assistance. But Godfrey seems has a history of suing people. The Demon action is one of an estimated 10 such actions he has brought against various Net posters. He settled out of court in 1996 with Geneva-based physicist Philip Hallam-Baker and, according to the BBC, has pursued suits against organizations and individuals in Australia, New Zealand, Canada and the United States.

Only a few weeks ago, he was awarded £15,000 (about $24,000) plus costs against Canadian Michael Dolenga over a series of postings to soc.culture.canada. Dolenga, a Cornell University student, believed he was protected by the First Amendment and did not defend the action, but under the Foreign Judgements Reciprocal Enforcement Act of 1933, Godfrey can collect in Canada.

Freedom of cyberspeech

Netheads long pondered the question of whether the Net would export the First Amendment to the rest of the world and free speech to everywhere it is in chains, or whether the Net would slowly but surely gravitate toward the most restrictive regime. There seems to be no middle ground.

One must hope that this case will cause the United Kingdom, currently in the throes of trying to reinvent itself as the best place to do electronic commerce, to rethink its laws.