Two recent rulings on Internet libel, one in America, one in Britain, provide a wonderful demonstration of why the occasional tea party and revolution is a good idea. Although the outcomes of the two cases are radically different, they share similar circumstances.
In America, a prankster created an account with Internet Service Provider (ISP) Prodigy under the name of a 15-year old "Alexander Lunney" and defamed Lunney with obscene emails sent in Lunney’s name. "How I’m gonna’ kill U" was the subject line in one e-mail sent to Boy Scout leader John Satenstein. Another e-mail sent to a teenage girl who attended Alex’s school invited sexual favors.
Alexander Lunney and his father responded by suing Prodigy in the New York state court. Prodigy put up a successful defense, relying upon the common law and federal statute that holds that an ISP, like other communication conduits, is a common carrier. Under such laws, an ISP no more responsible for a libelous posting made through its system than AT&T is for the content of a phone call that passes through its wires, or the Post Office for a letter placed in one of its mailboxes. The United Kingdom has taken a different approach.
In England, a physicist named Laurence Godfrey collected hundreds of thousands of dollars in damages and costs from ISP Demon Internet for its failure to remove a forged message from him to Usenet, a decentralized, global, "bulletin board" system. The ruling, which effectively established ISPs as the gatekeepers of libelous or defamatory Internet content in England, has had the expected chilling effect on speech. One English ISP, NetBenefit, has responded to the ruling by tightening control over the content it publishes.
In the wake of the libel verdict, NetBenefit shut down Outcast Magazine’s web site upon receiving notice from Outcast’s rival, Pink Papers, that the website would be posting an article defamatory of Pink Papers and its chairman, Kevin Sollis. NetBenefit refused to reinstate the site without assurances from a solicitor of the site’s content. But Outcast, a small-circulation magazine staffed by volunteers, cannot afford the $5,000 fee that most solicitors would charge for such a service.
Every day, hundreds of gigabytes of data flow across the Internet, washing up on Usenet groups and AOL chat rooms. Some of it is rude, crude, offensive, or insulting, and some of it genuinely libelous. But to make the courier responsible for the content is not merely legal madness but a practical mandate for censorship.
It is worth noting that following the Demon UK decision, Campaign Against Censorship of the Internet in Britain, one of the leading British anti-censorship groups relocated its site to a server in America, where speech -- even unpleasant or offensive speech -- is accorded strong protection under the law.
Freedom of speech, a basic right, is key to the spirit of the Internet and the Internet economy. The relative freedom accorded to the Internet in the United States has fueled the longest economic expansion in our history. Meanwhile, the lesson for policymakers is clear.
Laws written in an era when the distinction between publisher and postman was clear cannot be applied to an era in which any 13-year-old can reach the same audience as any major newspaper.
*Ian R. Harac is a Research Fellow for the Center for Freedom and Technology at the California-based Pacific Research Institute.
