Congress shall pass no law..., but ISPs will.

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From: Carey Lening (
Date: Fri Apr 14 2000 - 13:31:20 PDT

-- I read this and as is my nature, cringed. Not so much that the thought
of this was that new, but that it was _this_ easy. Then I realized, hell,
how many cases has this happened in the States, with relatively little ease,
and less laws governing the responsibility of the individual ISPs. Freedom
of speech protected? I think not. I think i'm compelled to create
something just for the purpose of getting it banned. Any creative
suggestions? :)


   Thursday, 13 April, 2000, 14:20 GMT 15:20 UK
Gagging the net in 3 easy steps

You might like to think of the internet as the ultimate tool of free speech.
But the law in the UK is making some people think again, writes BBC News
Online's Giles Wilson.
It's easy to censor the internet, and to prove the point, here's a little

Step one
Create your website, with whatever content you like. I'm using some personal
comments about one of my colleagues. It needs to be personal but for the
purposes of this exercise I'm going to keep my comments fair and nothing I
couldn't justify in court.

"Jonathan Duffy is so tall he looks like the very tall character from the
Simpsons's episode who, when Nelson shouts 'HA HA!', answers: 'Do you find
something comical about my appearance when I'm driving my automobile?'"

How the proposed site would look

Now put your statement up on your website, using any internet service
provider based in the United Kingdom.

Step two
Having seen these comments, Jonathan is enraged. He feels it makes him look
foolish, opens him up to ridicule and contempt, and he is determined it
should come down.

He needs to find out which ISP is hosting the site. To do this, he first
runs the trace route (tracert) program which comes, for example, with
Windows 95. This gives him the IP number of the site, and he finds which ISP
is hosting it by entering the number in the Ripe Whois database. Then he
finds the phone number of the ISP and rings them to complain.

"I demand you remove this site from your servers. Unless you take it down
now, I'm going to sue you for defamation as well as the person who wrote it.
It is highly defamatory," he says, even though the site is not, in fact,
highly defamatory.

Step three
So what is an ISP to do? Well when we put this hypothetical situation to a
number of them, a pattern began to emerge.

Robert Fox, of BB-Online, a smaller ISP which hosts about 2,000 sites: "I'd
pull the site down. I'd try to contact the client, but I would have to pull
it down."

Simon Gordon, spokesman for BT Internet: "Firstly we would look at the site.
If we thought it was defamatory, then we would ask the sender to remove it,
and if they didn't remove it, we would. Each case depends on its merits, but
wherever possible we would wish to avoid any legal proceedings."

Nicola Porter, spokeswoman for Freeserve, said: "It's a very difficult
situation for us. We'd investigate and act accordingly. We don't want to be
a Big Brother, but we don't encourage people to behave irresponsibly."
Ultimately, she said, if the company thought it defamatory, they would take
it down.

Rhian Ball, of Freenetnames: "If this chap said he was going to sue, we
would probably advise him to get a letter from his solicitor. If the
solicitor wrote to us, then we would take it down. We've got our own
lawyers, and they would always advise that if there was any doubt, we should
take it down."

Nicholas Lansman, of the Internet Service Providers' Association: "I think
[ISPs] would take the decision to accept the notice and remove the content."

The result:
It seems to be that if Jonathan complained loudly enough, the site would not
last on UK-based ISPs. He could have gagged the net, even though he was not
actually defamed.

The reason is that under current UK legislation, ISPs become responsible for
the content of sites they host once they receive complaints about it.

Last month Demon paid out an estimated 200,000 damages and costs to Dr
Laurence Godfrey, who had complained about allegations made about him. Demon
had not responded to the complaints.

The implication is that for an ISP, having received a complaint about a site
it is hosting, by far the safest and easiest course of action is to pull the
plug. Kamlesh Bahl, the controversial former deputy president of the Law
Society, has found this to be case, as has justice campaign group Portia.

A small gay community magazine, Outcast, was taken down last week following
a complaint that it was allegedly about to publish a defamatory article, and
it is now planning to take a case to the European Court of Human Rights.

Ironically the Campaign against Censorship in Britain has also had its site
taken down following a complaint, and has now begun running it from servers
located in the United States.

Whatever the rights and wrongs of these individual cases, there is a fear
that it is but a short step away from people being able to bring a site down
just because they disagree with what it says. For those who still like to
think of the internet as the great extender of freedom of speech, it may
come as a nasty shock.

Derek Wyatt MP, joint chairman of the all-party internet group, said that
when ISPs were in a difficult situation, but that there had to be protection
against people who had been libelled.

He had been the subject of a hostile debate in a chat room, he said, but he
had complained to the host ISP because the criticisms were based on
something that he had not actually said.

He is proposing that an international secretariat for the internet should be
set up to address these issues, and is hoping that it might grow from the
World Internet Forum, which is to meet in Oxford in September.

But in the meantime, the legal position remains difficult for ISPs, their
clients, and even for people who claim they have been libelled.

Nicholas Lansman of the ISPA added: "There's no clarity in the law, and the
ISPs are having to bear the brunt and the responsibility. It's no way to
make Britain the best place in the world for e-commerce."

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