Danger For Businesses Operating Websites and their ISPs

The recent publicity surrounding the removal of allegedly defamatory material from the parenting website Mumsnet, reportedly at the insistence of lawyers acting for the childcare expert Gina Ford, has highlighted the difficulties posed by the application of libel laws in the age of the internet. Some people believe that those laws are stifling comment and rendering too many people vulnerable to defamation lawsuits.

In the case of Mumsnet, problems arose because of comments posted by members of the public on the Mumsnet website, the contents of which Mumsnet and their internet service provider (ISP) had no initial control over. Such postings are commonly known as “blogs”. Blogs are widely used by a variety of organisations ranging from corporate entities employing their websites to allow user feedback, education websites featuring chatrooms as well as individuals who create sites and invite blogs on their particular areas of interest. The issues highlighted in the Mumsnet matter are therefore relevant across the board.

The laws of England and Wales (in common with Canada and Australia) provide that intermediaries such as ISPs face potential legal liabilities for failing to remove allegedly defamatory content once they have received notification of a claim – even if that claim only has the status of an unproven allegation and the Courts have not determined the allegation one way or the other. Intermediaries are therefore understandably reluctant to ignore threats of litigation and a prudent ISP and/or website operator will always seek to limit their exposure by removing any content complained about without question or delay – even whilst the lawyer’s faxed letter identifying allegedly defamatory material is still “hot off the press”.

In the circumstances, the need to have a system and policy in place to deal with action to be taken on receipt of such notifications (which is understood by all members of staff) is an obvious practical consideration but the wider debate concerning the operation of the legal system effectively to stifle comment and force the hand of ISPs and other intermediaries is raging. In the case of Mumsnet, the site has taken the unusual step of asking its members “not to discuss Gina Ford, her parenting methods of her books on [its] talk board” whereas the site’s ISP has been asked to disable the site by Miss Ford’s lawyers.

Given how easily content can be forced off the internet with claims of defamation, many feel the time is right to halt what they regard as restrictions in free speech by legislative change to something more akin to the laws enabled in the United States over 10 years ago whereby immunity is provided for intermediaries hosting third party content. This protection has been evoked many times in the USA to immunise ISPs, and sites such as Amazon.com as well as smaller websites which would not be financially placed to fight legal challenges even if they wished to do so.

The lessons for intermediary ISPs and those operating websites inviting comments and discussions from members of the public by way of blogs or discussion boards is to be vigilant about content posted and to have clear systems in place to monitor it whilst keeping a close eye on the various communication systems in the office (e.g. fax machines) from which notification and threats of litigation might come.