Internet Libel (not "liable") or Who's the Daddy(place)?

A story I meant to mention from last week - the Telegraph reported what is being called the largest ever Internet libel settlement in the UK, in relation to allegations on a site called "Dadsplace" about Gentoo, a housing development company.

"Gentoo Ltd, formerly the Sunderland Housing Group, became the subject of an attack by "a seriously defamatory, abusive and scurrilous anonymous website at dadsplace.co.uk", according to a statement read in court by the organisation's counsel, Hugh Tomlinson QC, before Mr Justice Eady today."

Eventually after some two years of malicious attacks downloaded "millions" of times, "John Finn, the owner of rival housing firm Pallion and a former local council candidate in Sunderland ...admitted his involvement, agreeing at the time to pay £125,000 towards Gentoo’s legal costs and a total of £21,000 in compensation.. he and Pallion [then] agreed to pay Mr Walls damages of £100,000 to settle his claim for libel and harassment."

The webmasters of Dadsplace were also made subject to injunctions not to repeat the offending statements but do not seem to have been sued for actual damages.

Now interestingly the solicitors for Gentoo - Olswangs - have commented publicly on why they think the settlement was so high. Factors seem to include:
- the length of the slandering campaign - two years
- the quantity of defamatory allegations - made almost daily
- the "extensive steps to publicise the Web site and their other publications" made by Dadspace - so the damage caused to the reputation was very extensive.

They also indicate how difficult it is to investigate a campaign of anonymous libel eg on a bulletin board or mailing list site, involving "months of painstaking investigation involving a combination of high-tech computer forensic work and old-fashioned evidence gathering".

Finally there are some interesting thoughts on Internet libel from Ashley Hurst the Olswang lawyer involved:

"This raises the question of whether reform is required to give the Internet the same badge of respectability that is enjoyed by other forms of media, including the press (regulated by the PCC) and television companies (regulated by Ofcom). However, the Internet is of course an entirely different medium and the answer is far from straightforward, particularly given the global reach of the Internet and the many different foreign laws that can apply. Would extending the remit of Ofcom or the PCC, or developing a voluntary code of conduct, make any difference?"

Pangloss gets an awful lot of requests to provide advice on Internet libel, though she is uncertain if this is because there is so much of it, or because her article on Net defamation (from 2000!!) comes up first in Google UK if you put in "Internet libel". (Bored students may be glad to know this piece will finally be updated in the 3rd edn of Law and the Internet upcoming.)

But most the people who contact her (unike Olswangs, perhaps, who charge :-) are not the alleged victims of libel, but are websites or hosts of some kind (often charitable or one-man outfits) who suddenly receive take down notices out the blue making vague threats of legal action, and then have no idea what their legal risks are. In an Internet culture where flaming is still fairly prevalent, these hosts often feel they have no alternative but to take down, even where they have no idea what if anything illegal or actionable has been said. This is not good for freedom of speech, democracy or indeed the morale of the voluntary/charitable sector. Sabre rattling and fear of legal risk , it seems, often overwhelms common sense and resilience.

Helpfully, the SCL website as well as providing the Olswang interview, also provides some hints to websites as to when they are liable for content posted on their site by third parties.

Pangloss doesn't disagree that a voluntary code relating to offensive content on websites might be of some use for the victims of malicious allegations (though how would it be policed? the PCC model, both of jurisdiction and sanctions, does not readily transfer, she feels, and that's before we come to the fact that web content is just as likely to be uploaded abroad as in the UK.)

But she also wonders if we do not also need to do more to protect individuals and small unincorporated associations who run or host the websites from random take down notices from anyone who is a wee bit disgruntled or wants to stifle perfectly reasonable criticism or debate.

At the very least it would be good to see a responsible body - the CABxs ? ISPA? BERR? - providing some plain language guidance on line, perhaps an advice hotline, and perhaps even an adaptable form response to takedown notices which do not meet the requirements of regulation 22 of the ECD regulations. Some take down notices do not even sometims specify what ( or where) the alleged libel IS. (The title of this piece comes from one just like this Pangloss saw yesterday - where the aggrieved sender of the take down notice knew so little he had spelt "libel" as "liable".)

As`my gift to the world Pangloss may post her own typical response letter tomorrow. After I've checked it's in no way libellous:)

Rate My Blog, no, Hang On..

Interesting new German case reported by Tobias Escher of the Oxford II. Sadly Pangloss has no German at all (stoopid Brit) so has to rely on Tobias's word for the quoted comment.

Scurrilous remarks on the German version of the web 2.0 site, Rate My Professor (or MeinProf.de) (an innovation which luckily does not seem to have penetrated Southampton law School yet:-) lead to demands from one particularly annoyed professor that certain posts be removed. Although the website took down hastily, the professor in question then went to court demanding the operators pay 3,000 Euros (about £2,000) for any similar comments about him that might appear on the site in the future. The court demurred.

"The court has decided that a general “cease and desist” for unacceptable comments is against the law. As a professor one has to face public criticism that cannot be prohibited ex ante. ..."

and Tobias comments

"Several things have to be noted: In general this is a positive outcome for web sites that leverage the wisdom of the crowds as it offers some protection for the often not-for-profit operators of these sites. However, this does not justify defamatory comments on those sites and the court has emphasized the operators’ duty to remove those entries as soon as they are recognized. Last but not least, the subject under public scrutiny does matters as professors might well be made to face personal criticism in their role as public figures while teachers and nurses might have to be treated differently. "

Interesting but not radical: it is apparent that the E-Commerce Directive Art 14 should protect websites like Rate My Etc Etc from liability for defamatory words posted by a third party. The ECD does not, however, as is well known, prevent the seeking and gaining of injunctions or interdicts to stop such posting; it merely immunises host sites or ISPs against damages. But the ECD does provide in Art 15 that web hosts cannot be commanded by law to monitor pro-actively on a blanket basis, which seemsd to be what was being demanded here. That rule was explicitly not implemented in the UK, interestingly, but only because it was understood to already exist at common law.

In the US as Wendy Seltzer notes, the site could not even have put on notice by the professor, due to the blanket immunity granted by the CDA. Rate My P could have kept the posting up without fear of suit. Whether in this case, as Wendy suggests, free speech should trump the desire of a scholar not to have his reputation casually trashed without any comeback but the self same Internet "right of reply" .. well, Pangloss will go back to her marking :-)

On the other other hand this decision is rather good news for eBay in its continuing desire to have no duty to check pre-emptiovely on the legality of the goods it sells on its various European sites, even where there is a known history and pattern of , say, the sale of Gucci counterfeit goods .. and Pangloss has said before that she is uncertain whether THAT is fair.

Mum's The Word

Another late catch up from my hols, mainly for own benefit. Mumsnet, the non-profit site run part-time by single mothers to advise on parenting, has capitulated to Fearsome Lawyers without going to court. Pangloss is rather sad.

From OUT-LAW:

"Mumsnet was sued by Gina Ford, who is famous for espousing strictly regimented baby routines, over comments made in the site forums. The long-running case has been settled with a Mumsnet apology and a payment to Ford, but Mumsnet founder Justine Roberts has asked the DCA to reform the law.

"Though we don't accept that any of the comments made on Mumsnet were defamatory, we took the decision to settle at least in part because of the distinct lack of clarity about how the defamation law applies to web forums," [said Roberts]..

The main problem seems to have been uncertainty about what "expeditious" removal on notice means under the EC E-Commerce Regulations.

"Roberts explained her dilemma: "How expeditious is expeditiously?" she asked. "We settled because there were some comments left up there for longer than 24 hours – though not much longer than 24 hours."

This is madness. My own recent empirical (as yet unpublished) research has shown a wide variation in time taken to remove content among UK ISPs and websites , from about 24 hours to a week, depending on the type of content, the urgency of the request and who is doing the asking. Pangloss agrees that more guidance is vital, in code of practice if not in law.

In the US, the moderator of a mailing list or website forum is exculpated under s 230 (c) of the CDA in respect of the content of posters- see Batzel v Cremers. Although s 230(c) is often seen as over wide, this is a ruling we could emulate, especially where the moderator makes no commercial gain from the site; it could always be subject perhaps to a removal of immunity where there is egregious breach of care (eg the email posted is forwarded from someone else and says DO NOT DISTRIBUTE in large capital letters.) Moderators of "public advice" websites are more like archivists than publishers; they rarely if ever make money from adverts or subs and do a good public service.

(It is fun to look back at this case today and compare it to whether Live Journal should be held liable in respect of members posting fiction containing under age rape. ISP liability is a wonderful area.)