h2g2 The Hitchhiker's Guide to the Galaxy: Earth Edition

I'm looking at "Demon settles net libel case" at http://news.bbc.co.uk/hi/english/sci/tech/newsid_695000/695596.stm

For one thing, the case doesn't really tell us anything about how England will decide in these matters, because Demon settled the case. It tells us how Demon's lawyers *suspect* England would decide.

For another, the article says that under English law, an internet service provider "must prove they took reasonable care to ensure such [libelous] material was not published, and once alerted to a problem, took steps to resolve it."

Godfrey informed Demon that there was a libelous message on their system, requested that they remove it, but they refused. This is totally consistent with after-the-fact moderation. It's not so much that this case illustrates how ISP's must all become pre-emptive moderators by English law. On the contrary, it shows how a good ISP will listen to complaints after messages are posted, and how a bad ISP will be punished if they fail to respond to complaints.

Regardless of whether Godfrey's reputation had been harmed by the posts, he could not have done anything to Demon if they had pulled the libelous post after he complained. If your interpretation of the libel law is correct, then this BBC News article must be totally wrong.

---"Although such discussion forums are often full of robust, forthright and even offensive opinions posted by individuals, the case hinged on whether Demon could be treated as publisher of the material."---

Is the BBC the "publisher of the material"? I guess we'll have to define publisher. The BBC does allow these things on their sight but they don't "publish" anything but the edited guide. Publishing involves proof reading, editing, re-editing etc by someone who represents the interests of the BBC, ie the editors/subeditors. Later in the article it goes on to say that under British Law that the only way that an ISP can be libel: is if a) they don't take "reasonable care" to keep inappropriate stuff off in the first place and b) if complaints are received and they don't take it off.. Agreeing to an ammended terms and conditions statement would take care of that first one and moderation-after-the-fact would work impressively well for the second.


---"If the ISPs become more cautious over what material they allow to be published - by screening submissions or suspending websites - they could inflame the debate over freedom of expression or damage internet-based businesses."---

It appears that this is correct in so far as it goes

would you explain for me the leagal reasoning that you referred to... I appear to have missed the post in all the backlog of the debating forums...

I think you'll find that 'publish' in this arena means to reproduce in writing & distribute.

If it didn't mean that, then Demon would have had nothing to worry about & wouldn't have settled

Also I'm not sure you can contract out of your rights like protection from libel etc & I'm sure the Beeb would argue that moderators constitute "reasonable care".

;^)#

I think you (Bruce) are right about 'publish' in this case, it is simply enough to have it on your servers and for it to be publicly available.

You have to also remember that the BBC is not only accountable under law but to its sponsor Government department, DCMS. The charter that it operates after makes it fundamentally different to any other media company in this country. And thus Godfrey / Demon only applies up to a point.

does this mean that it has privileges under the law?

good call Bruce, didn't look at it that way...

If I read it correctly I think that is what Damson is hinting at...

Q: would the BBC be able to claim crown immunity ?

The only privilage the BBC has in law is it's right to raise funds through a licence fee on TV receivers, with regard to this thread that's irrelevent.


I'm not a lawyer so I might be talking complete B******s
<\Get out Clause>

Because the Godfrey / Demon case was settled "out of court" it doesn't set a legal precedent, with regard to the outcome (important as English civil law is built on the result of previous cases).

However earlier in the case the judge had thrown out Demons initial defence that it was not the publisher, which could well be used as a precedent in future cases.
theres a bit more on this at

http://news.bbc.co.uk/hi/english/uk/newsid_696000/696289.stm

Note to Mods it's ok it's a BBC one

Based on that ruling during the case, a provider could be held liable even if the posting had been removed immediatly the complaint was received, or even possibly if no complaint was received.
The only defence being that the provider had taken "all resonable care"
Which could mean almost anything depending on the view of the judge in any future case

Hence the current paranoia by the BBC which in addition to it's legal duties, is expected because of the way it's funded, to be be whiter than white in such matters.

Would "Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce')" have a bearing on this case ?

Thanks, Bald Bloke, that was a really good explanation.

Can you think of any creative ways the BBC could satisfy the "reasonable care" part?



Mikey

Happy
I havent read Directive 2000/31/EC and at this time of night I have no intention of doing so, it might cure my insomnia

How do you fancy posting the relevent key points?

Mikey

The problem is that dreaded legal word "reasonable", which always seems to mean "more than you did" when your in trouble.

As far as I'm concerned the BBC seem to be doing more than I would consider neccessary to be reasonable by having the all postings moderated rather than waiting for a complaint.

However I'm not a Judge

As I understand it Demon lost this case because of this directive. While the directive removes legal responsibility from the host (which was Demons defence) it also stated once a host is aware of a problem they have a duty to act (which demon didn't).
I suggest you read th full text of the dirctive.

*bookmarking*,
~waves at everyone~

*waves back*

Joins in the general *waving* as opposed to *drowning*

Happy

Now I've had time to download Directive 2000/31/EC and read a bit of it.

The Godfrey Demon case was settled in March 2000 while the directive was not issued until 8th June 2000, so the directive could not have affected the case.

Now that I've read it, I seem to remember that the directive may have come about as a result of the case, I'll have a hunt in the news columns sometime.

And a correction to my post (12)

I missed out a key bit about reasonable.

the paragraph should have read.

The problem is that dreaded legal word "reasonable", In law reasonable is taken to mean "that which any ordinary sensible person would do in the same circumstances" but which always seems to mean "more than you did" when your in trouble.

Ok people. Here's the relevant text (IMHO) of the directive. I could give the www for that but as we all know that would be evil. And there is no copyright on this text. But a decent site like google and the words e-commerce, EU and 2000/31 should get you there. As for the Godfrey and Demon case: There is an .org on the www that is called BAILII (British And Irish Legal Information Institute) where you can search for the case, so that you don't have to rely on there BBC's second hand info.


17.7.2000 EN L 178/1 Official Journal of the European Communities

DIRECTIVE 2000/31/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 8 June 2000
on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)


Article 14
Hosting

1. Where an information society service is provided that
consists of the storage of information provided by a recipient
of the service, Member States shall ensure that the service
provider is not liable for the information stored at the request
of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal
activity or information and, as regards claims for damages,
is not aware of facts or circumstances from which the
illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or aware-
ness, acts expeditiously to remove or to disable access to
the information.

2. Paragraph 1 shall not apply when the recipient of the
service is acting under the authority or the control of the provider.

3. This Article shall not affect the possibility for a court or
administrative authority, in accordance with Member States'
legal systems, of requiring the service provider to terminate or
prevent an infringement, nor does it affect the possibility for
Member States of establishing procedures governing the
removal or disabling of access to information.

Article 15
No general obligation to monitor
1. Member States shall not impose a general obligation on
providers, when providing the services covered by Articles 12,
13 and 14, to monitor the information which they transmit or
store, nor a general obligation actively to seek facts or
circumstances indicating illegal activity.