Politics & Society

London court ruling could have grave consequences for free speech online.

A ruling at the Appeal Court in London yesterday could set a dangerous precedent on one of the most important issues in online free speech. The ruling could mean that Internet Service Providers such as Google and Facebook become recognised as “publishers” of material, rather than “mere conduits” and thus legally responsible for material posted on their platforms.

The case, brought by aspiring Conservative politician Payam Tamiz against Google*, hinged on whether or not Google was responsible for comments posted on a blog hosted on its Blogger blogging platform. Tamiz claimed to have been libelled by the “London Muslim” blog, which was hosted on the platform. He had approached Google to ask the blogger to remove the defamatory comments. After five weeks, Google did approach the blogger, asking him to delete the alleged slurs, which he duly did. But Tamiz continued to pursue a case against Google.

Tamiz initially lost his case, and, it should be noted, he lost his appeal this week too.

But the ruling on the appeal raises some interesting questions, and could pave the way for future actions against Internet Service Providers.

The key question seems to be what is a respectable time between being told of alleged defamatory publications, and actually becoming responsible for them.

Referring to Byrne v Deane, a 1937 case involving a defamatory note posted on a golf club notice board, the Master of the Rolls, Lord Justice Richards, commented that “[...]it is in my view open to argument that the time taken was sufficiently long to leave room for an inference adverse to Google Inc on Byrne v Deane principles.

“The period during which Google Inc might fall to be treated on that basis as a publisher of the defamatory comments would be a very short one, but it means that the claim cannot in my view be dismissed on the ground that Google Inc was clearly not a publisher of the comments at all.”

The suggestion is that eventually, Google does become responsible for content.

This reads like a threat to the concept of “mere conduit”, the concept enshrined in the European Union e-Commerce Directive establishing that ISPs cannot be held responsible for content on third party blogs, Facebook updates, tweets etc.

That concept is increasingly coming under threat. Just recently, Belfast lawyer Paul Tweed suggested to the Guardian that companies such as Google, Facebook and Twitter could be subject to “EU defamation cases”, in the courts in Ireland, where all three companies have major European bases.

Such a move could seriously threaten the way the web works. We rely on private ISPs to host our various interactions. Making them legally responsible for everything we post could lead to a situation where they severely narrow their terms of service, and even attempt to engage in some kind of censorship in order to avoid litigation. This shift in responsibility is not what the ISPs want, and certainly not what web users need.

*Google is one of Index on Censorship’s funders. Index’s editorial positions are independent of all its funders

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  1. Posted 19Feb13 at 9:37 am | Permalink

    You keep using the phrase “Internet Service Provider”.

    I do not think that phrase means what you think it means.

  2. Posted 19Feb13 at 11:09 am | Permalink

    what Ian said.

  3. Posted 19Feb13 at 11:09 am | Permalink

    Hi Ian.
    It’s not a term set in stone. But the context I’m using it in concerns organisations hosting content on their platforms. In this sense, Google, Facebook et al are ISPs in the same way 1and1 and the like are. Also, both companies are members of the Internet Service Providers’ Association.

  4. Posted 23Feb13 at 10:24 pm | Permalink

    The method of sharing with the whole thing in this article is actually wonderful, everyone have the ability to successfully comprehend it, Thanks a lot.

  5. Posted 25Feb13 at 3:28 pm | Permalink

    You mis-read what the judge said. He’s not saying that the web-site becomes a publisher, rather than conduit, once some amount of time has elapsed since the article was posted; only that they would become liable as a publisher if they failed to respond to a take-down request in a timely manner. So the clock starts ticking when someone complains about the content, not when it’s posted.

    That’s a very significant difference and doesn’t fundamentally undermine freedom of speech. Nor, indeed, would it imply any noticeable change to sites’ terms of service: most of them already do reserve the right to take down a user’s content (at least) in the event of receiving a complaint against it.

    Of course, that has its own unpleasant implications for freedom of speech, but it’s already in place and has been for some time. Wrongfully demanding take-down should be recognised as harming the web-site and the author, so that they (jointly or severally) have a cause of action at law against those who seek to abuse take-down demands.