threat of libel suit sends uk blogs tumbling down

A number of UK bloggers, including the Tory London Mayoral Candidate Boris Johnson, had their blogs taken down by their ISP Friday following threats of legal action by Uzbek billionaire and major Arsenal shareholder Alisher Usmanov.

The bloggers, who were unlikely to have previously heard of or mentioned Mr. Usmanov, were unwittingly caught up in a dispute between Mr. Usmanov and blogger Craig Murray, a former British Ambassador to Uzbekistan.

London law firm Schillings, which represented actress Keira Knightley in another recent high profile libel case, complained to Fasthosts, a UK based ISP, about the content of the blog of Craig Murray, a former British Ambassador to Uzebekistan, the home country of Usmanov.

Under the Electronic Commerce (EC
Directive) Regulations 2002, an ISP threatened with a libel suit can claim to have acted as a "mere conduit" so long as they:

• did not initiate the transmission;
• did not select the receiver of the transmission; and
• did not select or modify the information in the
  transmission

However, under the Act, an ISP could lose this defense if made aware of the presence of potentially libelous content.

In taking down Craig Murray’s blog in response to legal threats, Fasthosts also took down a number of unrelated sites that, apparently, had been sharing the same hosting account. Blogs affected include that of Boris Johnson, Sandwell Labour Councillor Bob Piper, Tim Ireland’s Bloggerheads and others.

I response, Hundreds of UK bloggers have now rallied round and added buttons showing their support for free speech rights.

Many content creators and hosts in the UK would argue that here it’s
far too easy to get an ISP to remove content rather than face the
potential of a long and costly libel defense. In the USA, ISPs and those who host content on them are better protected from spurious takedown notices by the US Communications Decency Act which basically makes content hosts immune from suits arriving from the content that passes through their servers.

It’s easy to understand the action taken by Fasthosts although it does seem like a bit of careful pruning, rather than the machete wielding that appears to have taken place, would have gone over better with bloggers.

And it’s easy to understand the upset of bloggers who, like Craig Murray, have been silenced by take down requests made directly to their ISPs.

What is difficult to understand is why UK law hasn’t evolved to the point where content producers, authors and bloggers are held directly responsible for their words – and those who host those words, whether it be a website, blog or post on a message board, can do so with immunity until which time the content has been shown by the courts to break the law or infringe upon someone’s rights.

Anything less puts content hosts in the uncomfortable position of having to make extra-judicial decisions about what content is and isn’t a breach of the law; decisions which, in many instances, will pit the responsibility of the ISP’s decision makers to maintain corporate economic security against the rights of individuals to express themselves freely.

[Please Note: Although I hold a law degree and am currently a Non-Residential Fellow of Stanford University’s CyberLaw Department, I am not qualified to provide legal advice. Please seek the advice of a legal professional before acting on anything you might have read here or elsewhere. I’ve written this post without knowing or, indeed, caring about the content or accuracy of the complained about blog posts.]

[Disclosure: Tim Ireland, one of the bloggers affected, was one of a dozen people I invited to give a presentation at the We Media Fringe event I organised in early 2006 and was subsequently hired to give a presentation at the BBC following my recommendation. Earlier today I was interviewed about this story by Chris Vallance for BBC Radio 5 Live’s Pods and Blogs. Bob Piper, mentioned in this post, and another blogger who goes by the name of Mr. Eugenides also took part in the same interview by phone.]