Laurence Kaye on Digital Media Law

Future Regulation of the Internet

Dear Reader,

Laurie is busy with work on SABIP and apologises for the radio silence. He'll be back and blogging soon but in the meantime, I'm afraid, you'll have to make do with me...

The correct title for this post is in fact "Net Neutrality (what is it and why should I care)"... but please don't run away.

I admit it's a cheap trick - but one that I was caught by recently when I went to a lecture given by Chris Marsden. I turned up to the friendly sounding "Future Regulation of the Internet" only to be told that in fact the seminar was on "Net Neutrality 'Lite': The European Approach".

  If it weren't for the free cakes, I would have left.

But I'm glad I stayed. Net neutrality is one of those terms I often hear people use but never quite fully understand. For me, it's in that category of frightening webby concepts including folksonomies and convergence. What's more: it's about the pipes and I'm really more interested in the content. Chris managed to get me interested in it, though, and in reading around the subject after the seminar, I am on a quest to get to the bottom of it because it is clearly something that people get evangelistic about. For example, the US Federal Communication Commission has recently launched a site for the preservation of a "free and open internet", advocating net neutrality principles (see here for Mashable's commentary on the issue).

The reason that the term 'net neutrality' causes me such consternation is that it seems to mean different things to different people. Google explains it as "the principle that Internet users should be in control of what content they view and what applications they use on the Internet" (it would - it is, of course, a mere facilitator). Techies describe it as "the idea that every packet of information...carries equal importance. That is, a message from me moves no faster or slower over the Internet than a message from the Queen." Chris defined it as the principle that there is no ISP interference with the packets of data; i.e. that ISPs do not open packets to see inside and that they do not discriminate between packets.

Combining these, I understand net neutrality to be the principle that the Internet is a method of communicating packets of information from one end to another which does not: (a) investigate the packets; or (b) discriminate between the packets. This seems to me to be similar to Google's argument in the case I recently blogged about: i.e. Google, like the Internet, is a mere facilitator and is neither responsible for the content it carries nor obliged to monitor the same (the latter principle is enshrined in Art.15 of the E-Commerce Directive).

Apparently, ISPs breach the principle of net neutrality (and, possibly, their contracts with their subscribers) by advertising 'unlimited broadband' and then slowing different types of traffic to suit them. They may do this for practical purposes ('traffic management'), for selfish purposes (to save money), to get the competitive edge (to promote their own bundled services over those offered by third parties), out of the goodness of their heart (by blocking spam)...the list goes on. The interesting thing is that when an ISP selectively slows traffic, it is extremely difficult to tell if this is because of a legitimate attempt to avoid congestion, or because the ISP has underprovisioned (i.e. advertised speeds faster than it is capable of achieving all of the time), or a deliberate attempt to do so for a particular purpose (and then there are problems with evidencing that purpose). So far, so conspiracy theory!

Putting that can of worms aside, what interests me are the overarching principles - the way the net neutrality principle interacts with the fact that certain controls are necessary to ensure protection of consumers, content providers and other policy concerns. It is not a great leap to draw parallels with the freedom of expression -v- protection of privacy debate, or the free -v- paid-for content debate.

Also, from a legal perspective, as we often mention in our posts, offline laws apply in the online world and no amount of web-specific principles can undermine that. So the Data Retention Directive means that internet intermediaries have to keep records of communications, and the exemptions for ISPs in the E-Commerce Directive are defeated if the ISP has not observed notice and take down. I think this is what Chris meant by net neutrality 'lite'. The principle of net neutrality is all well and good but must in certain circumstances be diluted by regulations (which reflect real and practical concerns) in order to find the middle ground wherever the principle of net neutrality clashes with other equally important principles (e.g. privacy, crime prevention, consumer protection).

As always, this is a small taster of the whole debate and please forgive me any inaccuracies - it was my first foray specifically into this area. There are consumer protection, competition and so many more issues involved. But I hope that if you, like me, secretly baulked at the mention of net neutrality, you'll have found that this taster whets your appetite.

Yasmin Joomraty

Laurence Kaye Solicitors

Google Search as 'Facilitator' not 'Publisher'

Dear Reader,

There has been some doubt  in the UK as to whether search engines are 'publishers' and so responsible for: (a) displaying unlawful content in 'snippets' on the search results page; or (b) displaying a link to the page on which such content first appears.

But Mr Justice Eady has swept away this uncertainty by ruling in July that Google is a 'facilitator', not a 'publisher' and as such is not liable for defamatory text appearing in a snippet on its search results page (or, by extension, for displaying a link to the page on which the defamatory content was published in full, although Eady J did not specifically address this point).

MIS v Google

The claimant was a company trading as "Scheidegger MIS" offering a distance learning course called "Train2Game". The claimant noticed defamatory comments on a forum provider's website, some of which also appeared in Google's search results when searching for "Train2Game".

The position regarding forum providers' liability for UGC is relatively clear (essentially they can benefit from certain exemptions as long as they implement an expeditious 'notice and take-down' policy) so I won't rehearse it here.

The decision in this case was essentially that Google is not to be regarded as publisher of the defamatory comments so it is not liable for them. As such, although Eady J considered the defences available to Google under common law, the Defamation Act 1996 and the E-Commerce Directive, it was unnecessary for Google to rely on them - it is not liable in any event because "if a person is not properly to be categoised as the publisher at common law, there is no need of a defence."

So the general position regarding search engines now appears to be that they are not publishers of the content they display on their search results page and, as such, they are not liable for any unlawful content contained therein. However, this is subject to the following provisos:

• This will depend on the facts of each case and the way in which each search engine operates (e.g. search engines acting as aggregators may still run into trouble as Google News did in Belgium in 2007 - see our article here).
• As a High Court decision in an interim application, this decision is not strictly binding legal precedent but is strongly persuasive and highly likely to be followed in future cases - and, perhaps more significantly, to act as a deterrent to claimants joining search engines as co-defendants in defamation claims.

Eady J made much of the fact that Google's service is fully automated and "Google has no control over the search terms entered by users of the search engine or of the material which is placed on the web by its users." It follows that "it has not authorised or caused the snippet to appear on the user's screen in any meaningful sense."

As there is no directly applicable case law and no specific legislation on the question of whether a search engine is a 'publisher' for the purposes of defamation, Eady J took the approach "to see how the relatively recent concept of a search engine can be made to fit into the traditional legal framework (unless and until specific legislation is introduced in this jurisdiction". In doing so, he referred to the ISP cases of Bunt v Tilley and Godfrey v Demon Internet.

The idea that one party can be liable for an unlawful statement published by another party goes all the way back to 1894 to the quirky English case of Hird v Wood. In this case, a man sitting in a chair pointing to a defamatory placard was held to be liable because by pointing out the sign, he had contributed to its publication. However, in the even earlier (and even quirkier) case of Smith v Wood in 1813, a man who showed a defamatory caricature to a stranger who had knocked on his door and asked to see his etchings, was held not to have published that defamatory caricature.

Eady J did not refer to either of these cases in his judgment. If he had, I imagine he would have seen Google as the caricature artist acting passively in response to the requests of strangers, rather than the man actively pointing to a sign. Google does not choose what it 'points to' - as Eady J held, it "has no role to play in formulating the search terms" and performs the search "automatically in accordance with computer programmes." In addition, Google has an "absence of knowledge...in relation to the offending material", so on this basis it can be distinguished from the caricature artist as well.

Notice and Take-Down

One of Google's arguments in its defence in this case was that "it is practically impossible and certainly disproportionate to expect [Google] to embark on a wild goose chase in order to determine where the words complained of, or some of them, might from time to time "pop up" on the Web". Eady J agreed with this point, saying "One cannot merely press a button to ensure that the offending words will never reappear on a Google search snippet...." As such, access to the specific link the claimant complained of may be removed  but this does not mean that the comments will not appear in Google's search results (e.g. if they appear on another site, Google may link to that site, unless the URL for that site is also specifically blocked).

When I Googled "train2game" to see what the fuss was about, the following message appeared at the bottom of the search results page:

 

So Google has removed the link to the offending comment. It is interesting to note that Google has a mechanism for people to file notices of copyright infringement (see here) but not for other types of unlawful (e.g. defamatory) content. Following this decision, there is no reason (in the UK, at least) for it to change this position.

We have previously advised a client who had written an article which aggravated members of the online community, causing them to attack him in blogs, forums, wikis, you name it. Needless to say, his 'net-rep' was in tatters and he was finding difficulty getting a job as a result. As it was fruitless to pursue all of the sites on which defamatory comments appeared, he went straight to Google to ask them to block the content. However, they said that this was not possible, for the reasons given above. Eady J's decision in this case further decreases his chances of any such remedy.

Eady J did, however, say that "there is no doubt room for debate as to what further blocking steps it would be open for it to take, or how effective they might be." We'll keep an eye out for any developments in this area.

No doubt this will be a welcome development for all search engines. It has created a degree of certainty in this area, bringing the UK into line with those EU member states which have opted to include a statutory exemption from liability for search engines (e.g. Bulgaria). However, there is still room for clarification on the notice and take-down obligations of search engines, which could be dealt with by a voluntary industry code or by the introduction of legislation.

Yasmin Joomraty

Laurence Kaye Solicitors

Different Playground, Same Old Bullies

Dear Reader,

I was quoted in the Times recently in relation to a teenage 'cyberbully', Keeley Houghton, who was jailed and issued with a restraining order for bullying another teenage girl. The reporter asked me if this case marks a turning point in online bullying cases - here are my thoughts on the issue.

Without knowing the exact facts of the case, it seems to me that Houghton must have been prosecuted under the Protection from Harassment Act 1997 ("the Act"), under which offenders can be sentenced for up to 6 months' improsonment.

It should be noted that the victim had "been victimised by Houghton for four years...and had previously suffered a physical assault as well as damage to her home." This would have been a significant factor in leading the judge to believe that Houghton had pursued a "course of conduct" which: (a) "amounts to harassment of another" under s.1(1) of the Act; and/or (b) "causes another to fear, on at least two occasions, that violence will be used against him" under s.4(1) of the Act.

For this reason, I don't think that this case marks a turning point in online harassment or cyberbullying cases. On the facts, there was a long prior course of conduct including assault and criminal damage against the victim. It would, of course, be different if a person were sentenced for using social networks to bully another person without having also bullied that person 'offline'. The wording of the Act does not preclude an offence being committed in such a scenario - but to my knowledge nobody has been imprisoned on that basis in the UK yet.

However, this case does underline the point that people do not have a carte blanche to behave online in a way that is unacceptable offline. It also demonstrates that courts will take threats and comments made through social networking sites very seriously. Needless to say, there have been numerous online defamation cases and even a revival of the Obscene Publications Act 1959 in a lawsuit against a blogger. With the explosion in UGC and social networking sites, it is likely that online harassment cases will likewise occur more frequently, whether in civil or criminal actions.

As we've seen from people's behaviour on the gamut of websites from Facebook to Secondlife, Mumsnet to Owlstalk, the online world follows the offline world in all things bad as well as good. At the same time, laws that were drafted pre-Web 2.0 are being stretched to cover all sorts of new online behaviours. Put another way, the same old laws are applied to cover the activities of the same old bullies in a new playground.

Unfortunately, as every playground has a bully, so social networking sites have spawned cyberbullying and this case shows that harassment laws are flexible enough to step in to protect the victims.

Yasmin Joomraty,

Laurence Kaye Solicitors