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Content Providers and UK ISPs Urge Government to Protect Internet Free Speech

Posted: 22nd Nov, 2010 By: MarkJ
uk internet libel lawBroadband ISPs and online content providers, including the Internet Service Providers Association ( ISPA ), Facebook, Yahoo! and AOL, have written an open letter to the UK Prime Minister (David Cameron) that calls for him to help protect open discussion (free speech) on the internet.

The move concerns a forthcoming reform of UK Libel Law, which continues to be dramatically out of step with how ordinary people communicate over the internet. It also puts ISPs into an awkward position, effectively forcing them to act as "judge and jury" over somebody else's online content / blog / forum post etc.

Nicholas Lansman, Secretary-General of the ISPA, said:

"ISPs are currently in a position where they may have to decide what bears defamatory meaning, putting the intermediary in a position of judge and jury over content. We therefore support the call for an innocent dissemination defence, that ISPs should only be forced to remove defamatory material that has been decreed defamatory by a court or competent authority, and to bring libel law into the twenty-first century through the creation of a single publication rule."
The Open Libel Law Letter

Dear Prime Minister

We are writing to ask that you introduce urgent reforms in the Government’s proposed draft Defamation Bill to protect open discussion on the internet.

The English law of defamation is having a disproportionate, chilling effect on online writers, e-communities and web hosts:

The libel laws have not been updated to address the rise of online publication. The current multiple publication rule, dating back to 1849, defines every download as a publication and a potential new cause of action.

Internet service providers can be held liable for comments they host and therefore are inclined to take down material or websites even before the writer or publisher has been made aware of a complaint. Such intermediaries usually have no access to the background or relevant facts and should not be expected to play judge and jury in determining whether a writer’s material is defamatory or not. This is a decision that can and should only be made by the direct parties involved.

Online blogs and forums are available around the world and there appear, in practice, to be few restrictions on material published substantially on matters and concerning parties and reputations elsewhere being the subject of legal action in English courts.

The Internet is used for publication by millions of ordinary citizens for whom the current defences to an action for defamation have not been developed.

We ask that the Government’s draft Bill provide the following protection for discussion on the Internet:
1. ISPs and forum hosts – ‘intermediaries’ - should not be forced to take down material without a determination by a court or competent authority that the content is defamatory. The claimant should in the first instance approach the author rather than an uninvolved intermediary.

2. There should be a single publication rule and a limitation period of one year from original publication.

3. Claimants in libel law should demonstrate that there has been a substantial tort in the jurisdiction in which they bring proceedings.

4. There should be a public interest defence in cases where the material is on a matter of public interest and the author has acted in accordance with expectations of the medium or forum.
Signed

Richard Allan, Director of Policy EU, Facebook

Emma Ascroft, Director, Public & Social Policy, Yahoo! UK & Ireland

Lisa Fitzgerald, Senior Counsel, AOL (UK) Limited

Nicholas Lansman, Secretary-General, Internet Service Providers’ Association (ISPA), which represents providers of Internet services in the UK and has over 200 members representing 95 per cent of the access market.

Justine Roberts, CEO, Mumsnet
Certainly anybody who runs a good sized website will already be aware of how the existing law is often left open to abuse by those (e.g. commercial firms) who would seek to prevent information and personal opinion, most often including material that is within the public interest, from being shown.

As it stands now the government's justice minister, Lord McNally, is already in the process of drafting a new Defamation Bill to hopefully address some of these problems. However there have been calls for such improvements since 2002 and to date nothing much has happened, which is partly due to a lack of awareness about how people communicate online.

Today even politicians use Twitter, blog posts and forums to better communicate with the electorate and as a result there is a far greater awareness of how the law can impact personal communications. We hope this will carry over into a more common sense approach, which protects consumer opinion and free speech.
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