UK Libel Law, the Demon Almost-Precedent and the Bastard Duke of Brunswick

This entry was posted on
Tuesday, May 20th, 2008
9:30 am and is filed
under UK Libel Law.

Libel tourism is the new hotness and our milkshake brings all the boys to the yard.

UK libel law is also making life increasingly difficult for those of us who like to speak our minds via Teh Interwebs.

These are, to my mind, the two aspects of UK libel law that deserve the most immediate attention from the folks online, but if you think that there are others that are of a higher priority (or even more likely to bend with the wind), then now is the time to speak up on your own blog or under comments:

The Demon Almost-Precedent: the Legacy of Laurence Godfrey

The roots go a wee bit deeper and it’s not as set in stone as some people would have you think, but since Demon settled over the Laurence Godfrey libel case eight years ago, it has been generally accepted that ISPs and other providers of web hosting services can under UK law be sued for libel over material transmitted through a largely automated carrier service.

Things are different in the US; Section 230 protects the providers of carrier services and instead puts the legal onus on the true publishers; those who consciously present, arrange, edit, coordinate or create content for publication (e.g. the submitters of comments, the authors of blogs, the editors of portals, etc.)

But here in the UK, the people who own the transmitter are publishers from the moment of transmission.

From that moment, the only defence left to them is one of ‘innocent dissemination’… and this is why the ‘notice and takedown’ method works so well; a lawyer gives notice, the ISP panics, takedown follows.

You can still be held legally responsible for what you submit to websites (under your control or the control of others)… however, thanks to Godfrey v. Demon Internet Limited, you can be neatly bypassed at any time by someone who wants to remove what you’ve published but cannot or will not challenge it in court.

The Bastard Duke of Brunswick

Again, we come back to that moment of transmission, except this time it doesn’t stop there; each time a web page is reloaded in this country, that’s counted as a fresh transmission, and therefore a fresh publication.

This concept was first introduced to law over a 150 years ago by the Bastard Duke of Brunswick a man who once boasted that, if it weren’t for his great wealth, he would have been in an insane asylum

Instead, he decided to roam free and infect our legal system with his special brand of crazy.

(This, in my view, is what makes him a bit of a bastard… but please feel free to use the title ‘Batshit Duke of Brunswick’ if you prefer it. In fact, you can say almost anything you like about him now that he’s dead.)

In 1998, the law on limitation periods for civil claims in the UK was described as “needlessly complex, outdated and, in some respects, unfair”. A few years later, limits for claims of libel were rendered all but meaningless in a digital age after Brunswick’s bullshit was applied to websites in Loutchansky v. The Times Newspapers Limited.

As it stands, any UK newspaper or magazine wishing to make an archive of their articles available online must be prepared to prove all over again that what they published umpteen years ago was true. Even archive services such as LexisNexis are vulnerable (as one inventive and secretive ‘blogger’ has shown).

Also, someone could choose to initially ignore something you published about them on your website or weblog and then surprise you with a claim of libel in 5, 10 or 20 years time; that’s a long time to expect anyone to maintain evidence and/or contact with relevant witnesses.

There are already quite a few bloggers with content of this vintage. Very few of them will be aware how (and when) it might be used against them with an ambush claim.

Again, the folks in the US shame us with a superior level of common sense on this matter.

[WARNING: The legal status of web users as publishers and their subsequent individual/collective responsibilities is a matter that’s likely to come up and be widely misunderstood and disagreed upon… in a conversation involving an unknown number of people wishing to stay anonymous while pretending to be more than one person. Just so you know. Oh, and there’s a minor communication/motivation problem on the horizon; those who aren’t paying attention may wonder why we should fight to give ISPs immunity from liability when all they’ve done so far is punk out on us.]

About Tim Ireland

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