ISP 'publishers' at risk over dodgy content

By PETER GRIFFIN

The country's first web defamation case has again raised the issue of whether internet service providers (ISPs) are legally responsible for the material they host on their web servers.

A decision handed down in the Palmerston North District Court on Friday awarded Patrick O'Brien, the former chief executive of internet registry Domainz, $42,000 in the country's first case of web defamation.

Mr O'Brien successfully sued ISP operator Alan Brown for making defamatory statements about him on an internet newsgroup, e-mail list and website.

Although Mr Brown hosted the defamatory information through his own ISP Manawatu Internet Services, legal experts say an independent ISP hosting his comments could also have been successfully sued.

Several internet service providers the Herald contacted yesterday claimed they were protected from defamatory action because they removed material they knew to be objectionable and provided user terms and conditions which prohibited illegal activity, including making defamatory comments online.

But Auckland barrister Chris Patterson, of Eldon Chambers, said ISPs were "dreaming" if they thought they were safe from court action for hosting defamatory material, whether they did so knowingly or not.

"Everyone who reproduces [defamatory material] is a publisher," he said.

"That's why the majority of web defamation cases [overseas] have usually included an ISP, because the plaintiff is going to look for who has the deepest pockets."

He said an important UK case cited in the O'Brien ruling, in which ISP Demon Internet was found liable for defamatory statements posted to a news group it hosted, showed just how vulnerable local ISPs were under similar New Zealand law.

"ISPs here don't have the same protection as they do in the US, therefore if they are sued they make claims on their insurance. Most ISPs are insured to the hilt for things like this."

Ihug director Nick Wood said his company had never been drawn into a defamation case but had on occasions been approached about removing offensive material posted by its users.

He said it was unreasonable to expect internet providers to act as cyber-policemen and that the suitability of content was an issue that received significantly less attention from internet users than the problem of receiving unwanted "spam" e-mail and disruptive viruses.

"There's no logical way of sifting through hundreds of thousands of pages of web hosted material to decide whether it should be there," he said.

"Unless you're directly responsible for the commentary, I don't see why you should have any responsibility for the actions of others. It's a bit draconian to expect us to manage what other people have to say."

But he said the O'Brien v Brown case dispelled the myth that the internet was legally untouchable and could be used as a vehicle for personal slanging matches.

"You can't have people abusing each other backwards and forwards. They wouldn't get away with it in any other part of society - why should they get away with it on the internet?"

Representatives of Clearnet and Xtra said the ISPs required customers to agree to terms of use, prohibiting illegal activity online and providing the company with a level of legal protection.

An overhaul of the Defamation Act 1992 has been considered for some time, supported by ISPs looking for wording that would give them more legal protection.

A Ministry of Economic Development source said the defamation issue was left out of the Electronic Transactions Bill in its final form, but the subject would be revisited.