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Storm after dotcom

More than the cordless bungee jump of the stock prices of software and dotcom companies in the past couple of months, the more significant development has been the steadily increasing erosion of the very locus standi of cyberspace as a global graffiti board.

Since the first click a few years ago, the attraction of the brave new etherworld has been twofold. One was economic: typing the 23th letter of the alphabet thrice on the keyboard, many believed, was a licence to print money. That has been rather cruelly disproved in the marketplace.

But that is only an ephemeral blow which will impact entrepreneurs, employees and investors. A more lasting denouement has been delivered to the essential character and some would say Unique Selling Proposition of the new medium -- its free spirit -- in the courtroom.

In all the while it has been in existence, the Internet has been touted as the great anarchist liberator of our times. Whether it was an article against a big transnational corporation that no newspaper would publish, or a chain-mail campaign against a corrupt government, it has willingly played host.

Sexually explicit songs, hate campaigns, abusive letters, anonymous rants -- a more welcoming, accommodative, safer repository had not been seen. Here it was, we said, a weapon to break free from the tyranny of political correctness. A platform to say what you want without leaving your trail.

Underlying all this was our cool, almost arrogant, assumption that the rules of this world didn't apply in that one. That somehow the laws of libel that so restrict the bravest writers and speakers in this world of newspapers, radio and television wouldn't be enforceable in that one.

Well, they do. And, boy, does it hurt?

Over the past month, Britain has been witness to two different cases of libel with profound implications for the Internet. In one instance, an Internet Service Provider agreed to pay damages and costs to a scientist who said he had been defamed by anonymous postings on it.

And in the other instance, a radical Internet magazine had its site shut down by its ISP after a rival magazine complained about material posted on it. The reason why the cases demand our notice is because they took place in England, where libel laws are pretty much like ours.

What it means is this: if your ISP -- be it VSNL or MTNL, thisnet or that -- carries a defamatory statement on any of our extremely defamable public figures, our extremely defamable public figures can now sue the ISP because, according to UK law, an ISP is subject to the same libel laws as newspapers and other media.

In fact, in the first of the cases, it wasn't even an extremely defamable public figure who sued the British ISP, Demon Internet. It was a physicist, Laurence Godfrey. Dr Godfrey took objection to a "squalid, obscene and defamatory" posting which appeared on January 12, 1997 on the soc.culture.thai newsgroup, which was carried by Demon. It was a forgery purported to be from Dr Godfrey. Although the physicist sent several faxes to the ISP, the offensive item remained on the newsgroup for 15 days, so he started legal proceedings.

A second posting, from one of Demon's customers under the pseudonym "iniquity" appeared in July 1998 on the uk.legal newsgroup, and made further defamatory and personal allegations. Dr Godfrey again requested its removal and again his request was not complied with by Demon. Shortly before the case was to begin, the ISP opted for an out-of-court settlement. Dr Godfrey received 5,000 pounds (approximately Rs 350,000) for the first libel and 10,000 pounds (Rs 700,000) for the second one, which he said had a much wider readership in Britain. In addition, Dr Godfrey got an estimated 500,000 pounds (Rs 3.5 crore) in costs.

Dr Godfrey's counsel says the ISP never sought to suggest that there was any truth in either libel, but contended that it was responsible or liable for either. In March last year, Justice Morland said Demon had no protection under section 1 of the 1996 Defamation Act, which would enable an ISP to avoid liability if it could prove "innocent dissemination", that it was unaware of the presence of the material. Because Demon had refused to take down the posting it was in effect the publisher. Demon apologised for failing to remove the postings when Dr Godfrey protested but says it will appeal to the British government for recognition that an ISP "should not be liable for the milions of items carried on the internet every day".

In the other instance, "Outcast", which branded itself a "queer current affairs" publication was shut down "with great reluctance" by its ISP, Netbenefit, following a complaint by another gay publication, the Pink Paper, about material posted on it.

In fact, what transpired is a pointer to the clay feet ISPs can develop when faced with the threat of legal action. Chris Morris, the editor of Outcast, contacted the Pink Paper with a range of statements on which he sought comment. The Pink Paper management felt they were defamatory and libellous. So, all they did was send a legal letter to the ISP, and pronto, Outcast was taken off by the ISP.

The two cases are widely being seen as a threat to freedom of speech on the web. In America, where similar issues have come up, ISPs have greater immunity over the content they provide access to. For instance, Hillary Clinton-aide Sidney Blumenthal unsuccessfully sued Matt Drudge, whose reportage of his alleged wife-beating was carried by that country's number one ISP, America Online.

But the British case is more germane to us. ISPs compare their role to that of a telecommunications company, saying they cannot be held responsible in law for slander on the telephone. In other words, if you pick up and abuse somebody on the phone, you and not the phone company is responsible. But unlike in the case of the telephone, the evidence survives on the Internet. That is the impact of the verdict in Britain.

If a transnational corporation or a government or a politician or a bureaucrat or a businessman or a film star or -- god forbid -- a cricketer feels aggrieved by a news item, or a discussion in a chatroom, all he has to do to hit back is strike at the ISP. If your ISP happens to be quasi-government owned, they are so much more likely to do their master's bidding pretty quickly. If it is a private ISP trying to make ends meet, the prospect of paying huge damages and costs should quickly chasten them.

What then remains of the reputation of the Internet as a canvas of cacophony if it is defanged thus by our extremely defamable public figures? What happens to the plurality of views that we have been crowing about since he enveloped our lives? What happens when censorship begins in right earnest?

Krishna Prasad