Following the recent decision by Demon Internet not to appeal in the defamation case brought against it by Laurence Godfrey, the internet community has been left reeling. The net is as grey an area as you are likely to find, and the legal process seems unable to invent enough long words to cope with it.
In a statement, Thus, the owner of Demon, said: "Thus has reached an agreement with Laurence Godfrey which brings to a close the two cases he brought against internet service provider brand Demon Internet.
"Thus remains convinced that the law has not kept pace with the development of the internet and... will press the government for recognition that ISPs should not be liable for the millions of items carried on the internet every day. While we take our obligations very seriously and act when informed of any defamatory or unsuitable material, it is contrary to common sense to make ISPs responsible for the millions of items carried on the internet."
Demon's press office is cagey about elaborating, although it would appear that Godfrey made more than one sally against the company. What eventually happened was that Godfrey sued Demon on the basis that material carried by Demon was libellous and that the company was therefore responsible for its publication.
Food for thought
The problem comes with the nomadic nature of the internet. An explanation of its workings to a High Court judge has been likened to acquainting a tribe of cannibals with the principles of vegetarianism.
Robert Festenstein is a solicitor who has experience of the IT business - he ran a PC dealership before qualifying in law. He agrees that some members of his trade are not best versed in the ways of the world but suggests that the ivory towered image so often ascribed to judges might better be applied to many solicitors.
"It is not unknown for judges to make a decision without carefully considering the impact of that decision on the commercial reality of the case in question. But generally speaking, I reckon judges are pretty much on the ball," he says.
BT's Simon Craven, although at pains to point out that he is not a lawyer, agrees. He makes the valid point that Demon was asked, on several occasions, to remove the item that Godfrey found offensive.
For whatever reasons - incompetence, stroppiness nor anything in between are a valid defence - Demon failed to do so. Godfrey sued; Demon removed the offending item and the rumour is that, while £15,000 changed hands by way of compensation, some £230,000 went on costs.
Craven considers this "something of a storm in a teacup", but claims that it is nevertheless providing "regional propaganda" for US isolationists wishing to propagate the myth that such Luddite notions will ensure the failure of the internet in Europe. The Americans, he says, are reacting to the Demon case "with a mixture of amusement and horror".
Festenstein makes the point that no precedent has been set as the case was settled out of court. It is, he says, "still a matter of wait and see".
Richard Skellett is managing director of IT service company Allied Worldwide. He says the IT business "is still in its teens. The internet is barely out of nappies and, all of a sudden, there's this thing you can't control because - not unlike the original pirate radio stations - there is no recognised area of jurisdiction".
One possibility, Skellett says, might be the inauguration of an international body to police the internet. "But this could well turn out to be some sort of technological United Nations that would carry about as much clout as the other UN," he adds. "It is uncharted, difficult, messy and crying out for a common sense solution."
Are ISPs, in his opinion, playing wait and see? "Of course," he says. "One of the few things of which you can't accuse the computer industry is being reticent about winging it."
One of the first UK ISPs was Rednet, and managing director Mike Revell points out that the internet was born of universities and its ethos is still basically student.
"It's something that wasn't planned, has grown almost by accident, crosses geographical and political boundaries in one mighty bound, and there weren't really any problems until commerce came along and started messing around with it," he says.
Revell realises that ecommerce is here to stay and that the ramifications of the Demon case are likely to be considerable, if only in the sense that "lawyers will become involved in a huge way". He reasonably mentions in passing that, historically, such involvement has not been renowned for being accompanied by a large bank of common sense.
There is a branch of English law called Equity, which was an attempt to introduce common sense to the laws of the land, that started in the days of William the Conqueror - if you happen to be a Francophile.
The idea was a sound one - the King's Bench went to the people in the guise of the Chancellor, to whom Cedric complained that Norgoth owed him fifteen groats. Norgoth said he'd given Cedric nine groats and a sheep, to which the Chancellor said: "cool, Cedric. Keep the sheep".
Common sense is one of those catchy phrases, rather like 'this country' and 'you know it makes sense', that politicians tend to employ when loath to stand up and say: "Look, we stuffed that up. We might get it right next time, you never know your luck, and anyway I need the job."
It could also be argued that the internet posting that so offended Godfrey spent at least part of its life on telephone lines. Back to BT, therefore, where a spokesman, who asked not to be named, says: "Look, if you said something nasty about Bob Hoskins right now you couldn't blame us just because it went through our network."
Eminently sensible. And Festenstein speaks of the US where they take the same view and regard ISPs as having the same lack of responsibility as phone companies.
BT also cites WH Smith's refusal to carry the magazine Private Eye - litigants would naturally be tempted to sue WH Smith because the Eye was believed to have little money. This is a moot point but implicitly introduces the carrier as potential self-appointed censor.
If WH Smith can decide what it doesn't want on its shelves then, in theory, Demon and its brethren can decide what they don't want cluttering up their chunk of the internet. There would naturally be the problem of interpreting every single internet posting that came into existence, but Festenstein emphasises that even an attempt to do so could set a nasty precedent.
"If ISPs merely parrot 'nothing to do with me squire', then they may well be better off than their better intentioned brethren who, having interfered once, find they are open to attack because they failed to interfere on a subsequent occasion," he says.
Festenstein has been known to advertise his services in the columns of the aforementioned Private Eye which, from time to time, ran the unconnected item: "Are you suing Private Eye? You may win, you may lose, either way a lot of lawyers will make a lot of money. Are they really worth it?"
Festenstein sportingly concludes that they probably aren't. He expresses the hope that common sense will prevail and mentions the case of AOL in the matter of Monica Lewinsky. "A journalist ran a story via AOL concerning a White House aide who allegedly beat his wife. AOL was found not liable," he says.
Festenstein agrees that AOL was in a position to defend itself, by throwing money at it for a start, and that smaller and less well-heeled ISPs might hesitate to tread such costly boards.
Justice for the few?
So, could it just be that unfamiliar practice of getting the justice you can afford?
"Spot on," says Festenstein. "The impact upon small businesses is not to be underestimated. One of the problems when you are small is how to make yourself different. If the Demon case means you have to restrict the type of material you carry, freedom of speech issues aside, it must have some impact on your ability to generate a competitive advantage. Ultimately, unless you have a load of money, let someone else take their chance in court."
Pressed for a contemporary solution to a looming problem for which there is no answer, Festenstein offers the analogy of Brer Rabbit, which he says contains a good deal of common sense. As he wisely points out, Brer Fox came to little harm. "Brer Fox laid low and said nuthin," quotes Festenstein.
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