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Libel lawyers descend on Usenet

My name is mud

By Guy Kewney, 24 Apr 2006

Comment Tony Blair is, he says, concerned about the failure of the legal system to deal with the real, everyday problems faced by citizens. Tony Blair should start posting on Usenet. Even his budget would struggle to fund all the libel cases that would result.

Suppose (just for fun) that you discovered a trend - the rise of libel cases arising from newsgroup insults - and wrote a brief report for your blog about this, and suppose that, being a professional journalist, you went beyond the normal blogging tradition, and actually researched the subject.

For example, you might contact the plaintiff in a ground-breaking lawsuit, and ask him how the heck he got into it, and you might quote something he said. That's pretty much what I did; and within a week, friends were asking me if I'd seen what was being said about me in the newsgroups. About the only thing I wasn't accused of (it can be only a matter of time before I am!) was paedophilia.

My professional achievements evaporated. My intelligence was independently assessed at around the level of one of the higher primates, and my knowledge, competence and judgement were all described in terms that, if any of my clients took them seriously, would have ended my income.

For someone who actually inhabits the flame-basted wastes of Usenet, however, such libels can be very serious. As a result, despite years of traditional restraint, the Usenetizens are starting to abandon their quaint old-fashioned beliefs in ultimate freedom of speech, and are taking their antagonists to Court.

"Anyone with web access and a quick temper, can find themselves facing a lawsuit," summarised one reporter who looked into this. Shannon Proudfoot (not a hobbit) quoted a Vancouver lawyer, Roger McConchie: "The internet is the single most important reason for the increase in the number of libel lawsuits in this country," he said.

The problem with internet libel seems to be the mismatch between the "village pump" atmosphere of most newsgroups, and the global reach of Google. For a group of people in a newsgroup, it must seem that nobody else cares. They behave like a group sitting around a table in a pub: to most of the rest of the world, they feel, the doings of a group of nerds focused on Western Saddle technology, or a bunch of Intelligent Design nutters, or even a group of mobile phone mast debaters is of no consequence. But no longer.

If it happened somewhere on the internet, Google knows about it; and suddenly, it matters. To quote one litigant in a recent libel case, he found his live-in lover forced to move out, because the flame war he was involved in got so wide-ranging that he was being accused of having a record of offences against children.

This accusation, he says, is groundless; but it was made right at the time that she was engaged in a battle with her ex for custody of her daughter. Lawyers for the other side of the custody fight dug out his "reputation" as proof that the woman associated with undesirables. Usenet tradition is of anonymous postings.

The result is that if you are attacked, it isn't a simple matter to send the warrant to the person who is accusing you, in public, of unspeakable things. And internet service providers (ISPs) are not yet aware of the change in the rules of the game.

When a character posting under the name "Guy Fawkes" felt himself to have been slandered, he reported the offence to the ISP of the person attacking him. The ISP's response was precisely nothing; it ignored repeated complaints, quite possibly taking the (reasonable) view that since they weren't publishing the libel in the traditional sense, it was none of their business. That's the way the newsgroups have operated ever since they started.

However, when the writs rolled in, they took legal advice, and as a result, rapidly changed their posture, identified the poster, and a case is currently rolling through the UK High Court as a result. How a court is supposed to resolve these things is really not obvious. For a start, online arguments quickly polarise; people take positions on one side of the dispute or the other, and then start reacting personally to arguments.

Suddenly, you find several previously uninvolved participants taking views which simply can't be based on personal knowledge of the main antagonists. And, as time goes by, they seem to radicalise each other, until they are apparently prepared to appear in court to support anybody who is sued. But it gets worse.

The anonymity of Usenet means that you can find several people arguing, strongly, that the libels are factual, with evidence... and yet, discover later that all of them are in fact the same person, using different nommes de guerre - the person who posted the original libel! But how do you prove that? And if you can't, should the Court assume that they are legitimate witnesses, reflecting widespread opinion? or assume they are bots, mindlessly repeating what the ringmaster decrees?

The good thing about the current libel case is that at least it has been established - by The Hon. Mr Justice Eady, who declared, quite firmly, that the ISPs are not guilty by association - that the laws of UK libel which involve third parties to the libel, don't apply online. He ruled that ISPs are not Publishers in the meaning of the original understanding of the law.

That was based on a long-established precedent which saw many book-shops refuse to carry, for example, copies of Private Eye, in case they got named in libel actions: "In all the circumstances, I am quite prepared to hold that there is no realistic prospect of the Claimant being able to establish that any of the corporate Defendants, in any meaningful sense, knowingly participated in the relevant publications," the judge ruled.

But what about Google?

The problem is: Google is rich. And the case currently before the Court may have ruled that ISPs are not de facto "publishers" - but it also pointed to another landmark case of internet libel where the ISPs in a case were told that the statements were libellous, and were asked to remove them. In that case, since they refused, they were judged complicit in the libel.

Google however has a problem; it wants to store the entire internet. Take legal action against an ISP, and it may withdraw a slanderous post; but Google's cache will continue to repeat the story. And (any lawyer will tell you) there's no point in suing a cranky nerd whose total assets are probably an antique Pentium 3 computer and a modem... but if you can drag a wealthy corporation like Google into the story, then damages can be tempting.

Cases will increase. You can be sued in Canada for a libel you posted when you lived in Hong Kong or Venezuela. The libellous reach of the internet means you could find yourself arraigned under the repressive laws of a country you have never heard of, for saying something you thought was "fair comment" in the UK, or covered by the free speech amendment in the US.

Do you run a blog? You might like to take out libel insurance... ®

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