Online "conversation" often feels as though it takes place in the same sort of relaxed environment as a local pub. Unlike the chat in a pub, however, the conversation is likely to be saved permanently and displayed in a chat-room, newsgroup or on a website for anybody to view.
This makes the Internet a very dangerous environment for libel. (In general terms, a libel is something which tends to diminish somebody's reputation in the eyes of right-thinking people.)
The days of disregarding this danger on the Internet are over. In one Australian case (Rindos vs Hardwicke) an anthropologist successfully sued a colleague over an online libel. Such libels can be very costly. In 1997 Norwich Union paid £450,000 sterling to settle a libel action, which related to statements made by its employees in their email.
The latter case related to an internal email system, but on the Internet it may be very difficult to identify the author of a libel. Even if identified, he or she may not be able to pay damages, so the Internet service provider (ISP) on whose system the libel was published may find itself defending a libel action.
What makes this problem particularly serious is that legal confusion makes it impossible to advise an ISP how to protect itself. The key issue is whether ISPs are to be treated in the same way as telephone companies (as passive conduits of information) or more like newspapers, as publishers and liable for any libellous material they disseminate.
An ISP which moderates or monitors online chat may be held to be exercising an editorial role and find itself regarded by a court as a publisher similar to a newspaper. This occurred in the US in Stratton Oakmount vs Prodigy Services. On the other hand, an ISP which fails to moderate online chat may be sued anyway.
The British ISP, Demon Internet, is currently being sued for libel by a university lecturer. He alleges that libellous remarks were made about him in an Internet newsgroup run by Demon and that Demon failed to remove those remarks when asked to do so.
Demon is relying on the defence of "innocent dissemination", arguing that "if comparable comments had been made in . . . a restaurant (the plaintiff) would not be suing the owner of the restaurant for defamation". Demon points out that the alleged libel was posted to the newsgroup by an unknown individual in the US who was not one of its customers. However, on March 26th the English High Court refused to find in favour of Demon in a pre-trial motion and the case may now go for a full trial.
If the English courts ultimately find against Demon it will have serious implications for Irish ISPs by setting a precedent for such cases here. They may then have to monitor the content of every public forum they offer, which would push up the cost of those services.
These issues were dealt with in the US by section 230 of the Communications Decency Act of 1996 which states that: "No provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider".
This provision has been highly effective in protecting American ISPs. For example, in Zeran vs AOL, somebody unknown had affixed Zeran's name and telephone number to a series of notices which glorified the bombing of the Federal Building in Oklahoma City. These notices were placed on an on an AOL bulletin board.
As a result, Zeran was bombarded with angry phone calls and he had to be placed under "protective surveillance" by the police. He sued AOL, but the US courts ruled that his claim was barred by the Communications Decency Act.
The European Commission's Proposal for a Directive on Legal Aspects of Electronic Commerce contains provisions which might afford European ISPs similar protection. Article 14 of the proposal provides that an ISP will not be liable for information stored at the request of a Internet user, provided that the ISP is not aware of any activity which might give rise to a legal action and, once it becomes aware of any such activity, it "acts expeditiously to remove or to disable access to the information".
Quite a while may pass before this proposal has a direct effect on Irish law, but, if Ireland wishes to protect its ISPs, the existing law could be amended by a provision similar to either the European proposal or the US Act. This could be done in the promised Bill on electronic commerce which is due to be published later this year.
Denis Kelleher is a practising barrister whose Information Technology Law in the European Union will be published shortly by Sweet & Maxwell. (www.ncirl.ie/itlaw)