Internet law comes of age

Looks at the beginnings of Internet law in the UK. Examines two traditional areas of law which are currently coming under pressure in the English legal system – defamation and copyright. Briefly presents verdicts of actual cases from US and Australian law, and speculates on the outcomes of these cases had they been put before UK courts. work made by a fellow scientist on the Usenet public message network were defamatory (Godfrey v. Hallam-Baker, reported in The Times, 1994, 1995) – the action is reported to have been settled out of court in victory for the plaintiff. In the Australian courts damages of A$40,000 have recently been awarded to one anthropologist in respect of defamatory remarks about his academic competence posted by the defendant on a newsgroup Rindos v. Hardwick (1994). (This case is discussed in Auburn, 1995.) There can be no doubt that the author of defamatory remarks will be liable if he publishes those over the Internet. An unresolved issue is the liability, if any, of the service provider. In the USA this question is approached from the point of view of the First Amendment, the constitutional guarantee of free speech. The leading case is Cubby Inc. v. Compuserve Inc. (1991)[1], in which a US district court dismissed such a claim against Compuserve, invoking the First Amendment protection of free speech and ruling that it was in the same position as any other “common carrier”, like a telephone company, and should not be liable for defamatory matter transmitted over its wires. When the UK courts come to consider this question, the network provider will not have the same constitutionally guaranteed protection. Under English common law the question would be formulated differently. In 1837 it was decided that a postman was not liable merely because he had delivered a libelous letter, because he had no way of knowing and, indeed, ought not to have known what his letters contained (Day v. Bream, 1837). Printers and publishers, on the other hand, are responsible for the content of their publications. The difficulty lies with such secondary distributors as booksellers, librarians and newsagents. Under English law they can be regarded as “publishing” the libel, even though they have not read the book or newspaper containing the libel. The generally accepted view (Vizetelly v. Mudie’s Select Library Ltd, 1900) is that they are liable, unless they can prove their innocence by showing that they were not negligent in publishing the offending material. The view which an English court would take if an action were brought against a service provider is by no means clear. In an unusual, not to say startling, example of legislation ahead of the event, the UK Lord Chancellor announced an as-yet-unpublished Defamation Bill (Computer Weekly, 1995; The Times, 1995) which would seek to put the providers in a clearer position. It will say that the provider will have a defence to a defamation action if he has taken reasonable care and did not know – or have reason to suspect – that he has contributed to the publication of the libel. It does not appear that any distinction will be made between providers, whether they be large or small, commercial or academic. There will not be a blanket defence, it will be up to each provider to show that he has taken proper precautions and made sufficient checks to keep his service “clean”. It is not clear how far this duty will extend in the case of different providers – would, for example, a university that provides a discussion group have a greater or lesser duty than a large commercial provider? The answer to this and other questions will become clear only when litigation eventually ensues, as undoubtedly it will. Each new development in ways of sending information provokes legal self-analysis in another established legal domain, that of copyright law. In the 1880s, for example, codes used for the more efficient and economical transmission of commercial messages by telegraph were the subject of litigation. The question was whether they could be freely copied, or whether the author could protect his investment of time, skill and capital in exploiting the new technology. In legal terms this was classified as a copyright dispute – could meaningless codes be regarded as being within the contemplation of a system that was designed to protect “books” and “writing”? The answer was, yes (Ager v. Collingridge, 1886). But this process of quietly expanding the content of the legal rule to accommodate a new concept did not always work so smoothly. In 1899, for example, it was decided that perforated rolls used to reproduce music through a piano or organ were not a copy of the sheet music for the purposes of the law of copyright (Boosey v. Whight, 1899). This had the result that for several years the rapidly growing gramophone industry could operate without having to pay royalties for the music it used (Laddie et al., 1980) – the decision had to be reversed by the Copyright Act 1911[2]. There was also a time lag in relation to sound and vision broadcasting – they were not brought into 12 Internet law comes of age Derick Martin Internet Research: Electronic Networking Applications and Policy Volume 5 · Number 3 · 1995 · 11–14