DAVID FLINT Professional Brief Glasgow Herald 6th Jan 2003
Every day, thousands of crimes are conceived, planned and perfected on the telephone; millions of callers make disparaging, defamatory and offensive statements about others. Yet no one thinks of raising proceedings against BT for allowing such scandalous activities to be conducted using its facilities. On the other hand, when someone carries out the same activity on a bulletin board or website provided through the auspices of an Internet Service Provider, there are those who believe that the ISP should bear at least part of the liability.
Over the last four or five years, a series of libel and defamation cases concerning the use of the worldwide net have been entertained by courts throughout the Western world. It is demonstrably true, too, that the law in this area differs radically from country to country; even in the UK there is a perceptible difference in approach between Scotland and England, with English courts fast developing a global reputation as one of the most plaintiff-friendly jurisdictions.
But while a recent report from the actuarial profession found that Britain's "compensation culture" is in rapid ascent and is now estimated to cost around £10bn annually, it still stands in marked contrast to the United States, the original and most dedicatedly litigious society in the world. Nevertheless, the combination of the First Amendment to the US Constitution, on free speech, and civil rights laws means that much which might be considered to breach other jurisdictions' rules on libel and defamation is broadly accepted.
Until the widespread adoption of internet use throughout the world, the variation in the degree to which a statement might be considered libellous was of no great importance: for most people, defamation and libel occurs in their home jurisdiction since, after all, if someone says something untrue about you in a location where you are unknown, you can hardly suffer a detriment if the response is "Who?". With the internet, however, things have changed: a libellous statement posted on the web from a site in the South Pacific can be halfway around the world, to paraphrase former prime minister James Callaghan, before the truth has got its boots on.
A series of cases in Australia, the US, Germany and England have provided no satisfactory answer to the issue of whether an ISP could be liable for the libellous postings of a subscriber. Eventually legislation will be needed, although none of the current relevant rules appear to offer any solutions. Now to add fuel to the fire, there is also the ragingly complex and confusing issue in connection with the internet of where and when a libel occurs. Again, there has been no consistency of view amongst some of the world's leading judges, with three recent and very similar cases on the issues, one in London, another in New York and yet another in Minnesota, all reaching quite different conclusions.
The UK case - a Court of Appeal decision Loutschansky v Times Newspapers - which centred on a defamatory article contained on the newspaper's website over one year after its initial publication in the newspaper, begs the question whether or not the UK's senior judiciary truly understand the nature of the internet. At present, following the rules of the Limitation Act 1980, any item remains open to attack as libellous or defamatory only for a period of one year after initial publication. This, though, is in spite of the ability of anyone to go to the newspaper's offices or to the British Library and read a back copy of the article at any time, and, if it is over one year ago from publication, without potential liability for the newspaper.
On the other hand, if those back copies are retained online, and the articles in question were so retained in the newspaper's online archive, the potential liability for the newspaper is different, ongoing and perpetual. Worryingly, their Lordships indicated they had been guided in their deliberations by a case of 1849, Duke of Brunswick v Harmer, which they suggested was decisive and that there was, therefore, no compelling case for reconsideration of the matter.
David Flint is a partner in MacRoberts, Solicitors
-Jan 6th