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"I got into the Internet because I believed in the promise of freedom for all; I never imagined it would be the most easily censored medium there is." These are the words of a director of the Campaign Against Censorship of the Internet in Britain - which has now been moved to the good old U.S.A. because its British ISP is too afraid of libel suits to continue hosting it. Why? Because Demon Internet settled the libel suit brought by Laurence Godfrey. British ISPs are now (rightly) terrified, and are (unfortunately) censoring Web sites like Outcast merely because of the possibility of future libels that might be published. (more)

The problem is with the British legal system, which makes defending against libel suits difficult. Essentially, the defendant has to prove his or her innocence, typically by proving the truth of every challenged statement (and there are other systemic flaws as well). In such a system, putting up a defense is such a hassle - and so expensive - that settling out of court is almost always easier.

The Laurence Godfrey case was settled out of court, setting not a precedent but a bad example. Most libel cases do settle. After Godfrey's victory, now even more will.

One of the better-known cases which went all the way to the verdict was the McLibel trial, in which everyone's favorite multinational food chain sued two unemployed activists for handing out a pamphlet. Attempting to prove the truth of every single statement in the brief factsheet took the vegetarians two years. They could not afford to pay legal counsel or even to buy the transcripts of their own trial's proceedings. They lost, but the negative publicity was a Pyrrhic victory for McDonald's.

And in very recent news, the big story has been one in which a Holocaust-denier brought suit for a book which (essentially) called him a Holocaust-denier. This time, the good guys won, but only because the author and publisher were willing to spend two million pounds to illustrate that the facts were on their side. The bookstores that were sued had settled quickly out of court and agreed to the plaintiff's terms. (If you follow this case, some excellent and very detailed legal analysis can be found at a site I happen to Webmaster, in the essays Irving'sWar.)

Even if a libel suit is only hinted-at, as in the Outcast and CACIB cases, pre-emptively removing the material is the publisher's safest move. Don't like what someone says? Afraid of what they might say? Gag'em!

The U.K. needs to wise up and bring its libel law into the 20th century, or its citizens will quickly find themselves inhabiting a Bland Speech Zone. An island on the Internet, if you will, where nobody dares say anything about anyone else - or if they do, they prudently take their speech (and their money) offshore.

As a Demon settlement news report predicted two weeks ago:

"If the ISPs become more cautious over what material they allow to be published - by screening submissions or suspending Web sites - they could inflame the debate over freedom of expression or damage internet-based businesses."

Neither of which, surely, will benefit the people of the U.K.

Update: 04/18 03:21 by J : Two good commentaries today from lawyers relating to the Holocaust-denier's lawsuit. The legal team defending against the Holocaust-denier's lawsuit has an interesting contrary view in today's Independent. They argue that British libel law works, and is getting better in response to criticism. But when they write:

"...libel actions and the associated costs are part of the process of publishing. They are to the publishing industry what construction disputes are to the building industry. If the litigation is expensive that is a criticism of the price of litigation - not of libel litigation specifically."

they obscure an important point. We are all publishers in the internet age. If publishing is to be restricted to those who can afford "industry" insurance policies against million-pound legal fees, put a fork in the U.K.'s internet - it's done.

And, see also a legal viewpoint from the defending publisher's lawyers.

Serving a community that prides itself on solidarity and free thinking, Outcast magazine has been the center of a censorship issue that has gone from a virtual push to a very real shove. With the advent of British libel litigation that borders on the unbelievable, I spoke to Outcast's editor and publisher Chris Morris about the magazine, ISPs, and free speech under the digital union jack. Update: 04/06 06:48 by E : NetBenefit has written in with their side of the story, and well met. How long until we hear from the Pink Papers?

Slashdot: What happened, Chris?

"On 17th March, Mishcon de Reya, one of the biggest firms of media lawyers in the UK, wrote to Outcast, and the company that prints our magazine, and the company that hosts our Web site, stating that if we ever published anything defamatory, they would sue us. They were representing one of our rivals, the Pink Paper. We thought, 'fine,' because we didn't intend to publish anything defamatory. Outcast is a controversial magazine but we know how far we can go, and we'd never deliberately print anything untrue."

"The printing company tore up the letter because they know the type of magazine Outcast is and know that the editorial team can be trusted. However, our Web site company -- NetBenefit PLC -- was not so sure."

"They wrote to me on 29th March giving me two hours to fax them an assurance from a solicitor that our site did not contain any defamatory content and asking for a written guarantee that it never would. I was out of the office working in Parliament, and returned to find our Web site suspended and an error message where it used to be.

"I faxed NetBenefit on 30th March, pointing out that the article Mishcon de Reya were referring to had not even been published yet, and they were effectively censoring us before knowing what the article was about. They were finding us 'guilty until proven innocent.' I only received a very brief reply from the managing director, Alison Sparshatt, and it did not address my concerns. She has refused to take my phone calls since."

"NetBenefit has told journalists that our site will not be reinstated unless we provide them with written assurances about the content of the site. They appear to accept that nothing defamatory has ever been on the site and agree that there is no reason, apart from a letter from our rivals, to suggest there will be in future. But they say they have to 'play it safe.'"

"To have a solicitor write these assurances would cost in the region of 5,000 US dollars and, because Outcast is a small, community-run magazine, managed by volunteers, we cannot afford it. In any case, we don't think it is fair that we should be asked for guarantees like this -- none of NetBenefit's other customers have been asked for those assurances."

Slashdot: This is extremely frightening; what did you do to let people know about this?

"Outcast issued a press release to the national media at 2pm on 30th March, after it became clear that NetBenefit were not prepared to discuss the case with us. We used the OutRage (www.outrage.org.uk) e-mailing list and flooded the newsgroups."

"Later that afternoon, I sent out a further message asking supporters to e-mail Alison Sparshatt (alison.sparshatt@netbenefit.com) to object to the censorship. We asked people to c.c. the message to us, and we have received about 300 to date. I think that's a fantastic response, but we need to keep up the pressure."

"We also got in touch with the Campaign Against Censorship of the Internet in Britain, Feminists Against Censorship and the Anti-Censorship Campaign, all of which have supported us."

"Yesterday I wrote to all the directors of NetBenefit PLC at home asking them to intervene to oppose censorship."

Slashdot: Have you found that people are supportive to your cause?

"The support has been overwhelming -- far more than I expected. I think we've hit a nerve because this is the first time that a UK website has been censored before it has published something."

"The media have been great and have put a lot of pressure on NetBenefit. I also expect a number of politicians to announce their support for us next week if the matter hasn't been resolved by then."

Slashdot: I almost hesitate to ask this, but do you feel the shutdown was targeted at your site because of the sexual preference of your readership?

"I don't think so. The problem is really that ours is the first case of its kind since the Demon Internet 'Net Libel' settlement last week. That case appears to have set a precedent that UK ISPs can be held responsible for the content of newsgroups or websites they host. However, to censor something before it has been published is clearly an over-reaction."

"We can understand NetBenefit's fears and appreciate that they're only acting on the advice of their lawyers. But censorship on the Internet is something to be fought and that's why we're challenging their decision rather than changing to another ISP."

"The real blame lies with the Pink Paper, whose lawyers sought this censorship. They have exploited the ambiguous Internet laws to try to put us out of business. They seem to want a monopoly of the gay press."

Slashdot: In the immortal words of Bruce Perens, "If Slashdot's only good at one thing, it's good at raising a ruckus." Where do we go from here?

"We cannot let this be covered up. If NetBenefit win this case, the precedent will be set that any ISP can remove an entire website because it might contain something defamatory some time in the future. That means they can close down any website at all. It is a violent attack on free speech."

"We are asking supporters to e-mail Alison Sparshatt at NetBenefit and the owners of the Pink Paper to object to their pro-censorship stance. Please c.c. your message to mail@outcastmagazine.co.uk. The site is currently at http://www.gay-news.org.uk/outcast."

Needless to say, Slashdot tried to contact NetBenefit and the Pink Paper, to no avail. I would like to go on the record as stating that if representatives from the Pink Paper or NetBenefit would like to contact me, they may do so at my E-mail address, and I will update this story accordingly ASAP.

I did manage to speak to John Shirley, a manager at After Words, a popular Philadelphia-area gay bookstore. Having explained the situation to John, he noted that while he wouldn't pull the offending paper off of the shelf, they would certainly let people know about it. "We try to advocate on the side of the little guy in general," John said. "We would consider posting something on a bulletin board, especially if it were a magazine that people knew or cared about, in order to create some public outcry."

UPDATE:

I just got this in E-mail from Alison Sparshatt at NetBenefit plc.

NetBenefit Statement April 6 2000

Outcast, a customer of NetBenefit's web hosting services, recently claimed that NetBenefit had attempted to censor Outcast. NetBenefit rejects this.

NetBenefit does not censor any web site it hosts. NetBenefit is happy to host a web site such as Outcast - Outcast was accepted as a NetBenefit customer without question. NetBenefit will continue to support customers who seek to use the web to publish their views, whatever views they espouse, provided they keep within the law and do not expose NetBenefit to unacceptable risks which are clearly spelled out in NetBenefit's terms of business.

NetBenefit has been advised, following the case involving Demon and Laurence Godfrey, that we are obliged to review the content of a web site once we have received a warning that potential defamatory material is expected to appear on it and to act very quickly if potentially defamatory material is found. This applies to all Internet hosting companies operating under English law. We received advice that Outcast actually had on their web site material that was potentially defamatory. NetBenefit had no choice but to take action to avoid an unacceptable risk of being drawn into one or more costly legal disputes which were not of its own making but in which NetBenefit, merely a provider of web space, could be held liable to the same extent as someone who uses that web space to publish a defamatory statement. The Demon case has shown this to be a real risk for providers of web space and ISPs in the UK.

NetBenefit was entitled under the terms of business Outcast accepted, to suspend Outcast's web site without notice, but instead NetBenefit gave notice before suspending Outcast's web site and sought strong assurances from Outcast: specifically an assurance from a lawyer about the then current content of the site and Outcast's assurances about its arrangements for future content. Outcast responded to NetBenefit, acknowledging NetBenefit may be liable for any defamatory content Outcast publishes. Outcast failed to confirm its existing content was not defamatory, and indicated Outcast is not in a position financially to have its content checked by a lawyer but gave no assurance that future content would not be defamatory. Outcast alleged the suspension of their web site was censorship and gave an ultimatum demanding the lifting of the suspension. Outcast's response therefore contained no assurances whatever and NetBenefit declined to reinstate access to the web space, which Outcast since decided to relocate.

We recognise Outcast is in the business of publishing and so understands these issues. We would invite Outcast to campaign on the real issue: the need for a change in the law to allow Internet hosting companies, like NetBenefit, to provide the service Outcast and others are seeking.

---------------------------------
Alison Sparshatt
Managing Director, NetBenefit plc

Campaign Against Censorship of the Internet in Britain writes "The UK government is planning a licenced system of Certificate Authorities in an attempt to force key escrow down the throats of British computer users. This could be a model for other governments. The idea is that digital signatures get preferential legal treatment if certified by a licenced CA, but to get a licence you must escrow confidentiality keys. "

Campaign Against Censorship of the Internet in Britain writes "The UK government is planning a licenced system of Certificate Authorities in an attempt to force key escrow down the throats of British computer users. This could be a model for other governments. The idea is that digital signatures get preferential legal treatment if certified by a licenced CA, but to get a licence you must escrow confidentiality keys. "