Internet libel laws 'stifling freedom of expression'

Clare Dyer, legal correspondent
guardian.co.uk, Wednesday December 18 2002 09.26 GMT
The Guardian, Wednesday December 18 2002

English law on libel and the internet may conflict with the right to freedom of expression in the European convention on human rights, the law commission says today.

The government's official law reform body says there is a "strong case" for reviewing the way defamation law impacts on internet service providers. One solution would be to give ISPs in Britain the same immunity from libel claims they have in the US.

Last January the lord chancellor, Lord Irvine, asked the commission to investigate how the law of defamation and contempt of court affects internet communications. Its preliminary report, published today, highlights problems with the law and calls for a fuller investigation.

Professor Hugh Beale, the law commissioner who oversaw the study, said: "The problem is that the law puts ISPs under pressure to remove sites as soon as they are told that the material on them may be defamatory, without considering whether the information is in the public interest, or true.

"These pressures bear particularly harshly on ISPs, which are seen as tactical targets for those wishing to prevent the dissemination of material on the internet. There is a possible conflict between the pressure to remove material, even if true, and the emphasis placed on freedom of expression by the European convention on human rights."

Prof Beale said the commission had been told that some ISPs received more than 100 defamation complaints a year, including solicitors' letters from companies objecting to websites set up by disgruntled customers.

ISPs have the same defence of "innocent dissemination" as any publisher, but once alerted to the presence of defamatory material they become liable if they fail to remove it.

The commission says one possible solution is to exempt ISPs from liability, as in the US. Another is to extend the innocent dissemination defence, coupled with an industry code of practice.

The report follows a ruling last week by Australia's highest court that a Melbourne mining magnate, Joseph Gutnick, can sue the US-based Dow Jones in Australia over an article in the online version of its Barron's magazine.

Even if British-based ISPs were given immunity under UK law, there would be nothing to prevent lawsuits against them in foreign courts. Resolving the problem of "unlimited global risks" would require an international treaty, says the report. The government should sponsor research on how other countries dealt with the issue.

The commission suggests a change in the law to cover newspapers' online archives. At present, libel actions can be brought decades after an item is placed in the archives because publication is considered to be continuous.

One solution would be to adopt the US "single publication" rule, so the article is considered to be published when first posted on the archive.

There were concerns over whether jurors in criminal trials would trawl online archives to find out whether defendants had previous convictions, leaving newpapers open to possible contempt of court actions. But the commission concludes that it is not practically possible to remove all potentially prejudicial material from archives.