Gag The UK Net in 3 Easy Steps

Ponderu writes "BBC News is carrying a story about how easy it is to get a website pulled in the UK. They asked several ISPs how they would react to a sample site and the news is not encouraging. " Very frightening.

European Free Speech

In Europe, the equivalent of the first amendment is enshrined in the 'European Convention on Human Rights', and if our government breaks any part of it, we can take them to court in European High Court.

However, the government was not involved in these cases, it's just the case that most ISP's have sufficient protection in their contracts to allow them to drop a site for pretty much any reason.

As the law is still not particularly clear yet on whether an ISP can be held responsible for the content is hosts, most ISPs are much more willing to drop a customer than face an expensive court battle.

I must admit, I'm suprised this has been moderated as high as it has been...

Re:Proud to be an American...

I don't know how things work in the UK per se, but this is something that even if they had a first amendment, it would not address. The ISPs censored the material - not the government.

The ISPs "censor" the material because they have to. The law (I didn't understand whether it's an actual law, or based on existing cases) in the UK is that if the ISP has been made aware of the insulting material, the ISP is responsible. The ISP then has two options: take the site down, or be sued and defend in court that what the person wrote wasn't insulting. Given that lawyers ask more per hour than what the typical customer pays for a year of Internet access, guess which option an ISP takes? Would you go to court to defend someone who only pays you $15/month, knowing that if you lose, you might have to pay several $100k in damages?

Don't attack the ISPs. Attack the UK law. And don't be so sure it'll never happen in the US. As said before, the first amendment isn't going to help you.

-- Abigail

Re:Proud to be an American...

'Free speech' and 'the 1st amendment' are complete red herrings in this debate. The 1st amendment applies only to Congress, and *not* private business. Corporation can censor whatever and whenever they like on *their* systems/equipment/whatever.

The problem with the recent Godfrey vs Demon ruling is the application of libel laws and the way they allow you to sue not only the originator of the libel, but also the publisher and distributor.

The result of this is that when faced with a choice to sue (a) the writer of the libel or (b) the distributor of the libel, it's generally the case that the distributor has the deeper pockets. Therefore, they get sued, not the author.

Because of this, if a newsagent carries a newspaper that contains a defamatory article, you can infact sue the newsagent, or the publishing company, or the author. In the past, such cases have generally resulted in the publisher being sued, although the newsagent (distributor) has been sued on occasion.

However, in the case of the Internet, it's the ISP's who have the cash, and so they are the ones who get sued.

Having said that, the case that started all this, ( Godfrey vs Demon ) related to a USENET posting. This posting was not from a Demon customer, but ended up on Demon's servers in the natural course of things. Demon, upon getting a notice to remove the article, ignored it. Demon have now, in effect, been treated as the publisher of a USENET article that did not originate from them, and since it was deemed libellous, they've paid out a sum not unadjacent to 1/4 million pounds.

THe situation now is that Demon are paranoid about USENET postings and will suspend your net access for even posting a link to an article the is defmatory/libellous, as that is also deemed as publishing.

Whilst ISP being responsible for their users' web sites is acceptable - there is no freedom of speech, you are using the resources of a private company and they are under no obligation to let you make potentially business-damaging allegations on their equipment - there is now an air over extreme over-cautiousness, which will hopefully be moderated back down to something more sensible given time.

The real problem is USENET. There is no way an ISP can be responsible for a USENET feed, 99% of which does not originate from their customers, and for which there is no real method of control for content based cancelling of litigation-inviting messages.

Sensationalism.

The story summary here overstates the problem a bit, implying that you can get _any_ site pulled. But the cases listed in the article refer only to sites where there is apparently defamatory things said about _yourself_. Now, of course, this isn't good, but it is also hardly anything new. This happens all the time in the United States, as well. There've been a few incidents where a student has posted obviously absurd things about teachers/other students (he is the antichrist, I want to kill him, etc.) and the site has been pulled, along with the student being suspended.

The sample site they used is hilarious, though. I can never get enough Simpsons references. "This is the largest automobile I could afford."

Be careful what you ask for

Because, as the saying goes, you might get it.

ISPs have so far pretty much had the best of both worlds, with most of a common carrier's freedom from responsibility for content and none of their obligation to take any and all traffic. That idyllic period may be ending.

People who look at the British and German cases, and lesser ones that have happened in the USA, tend to propose common-carrier status for ISPs. ISPs, on the other hand, know better. The common carrier's immunity for responsibility for the traffic they carry stems directly from their obligation to take any and all comers willing to pay the tariff. If an ISP actually were to fall under common-carrier law, some very unpleasant things would happen. Like, for instance, spam.

Keep in mind that at present there is very little legal basis for the 'law of cyberspace'. System administrators, under peer pressure, keep limits on net abuse not because it's the law but because being too slack with abusers is a good way to end up firewalled. Common-carrier status would change that fundamentally by setting a legal standard for refusing packets and users alike: as long as there isn't a law against it, you have to carry it.

Of course, the response to that is a huge upswing in abuse, to which the only remaining response is to -- you guessed it -- make certain actions on the Net illegal.

The legislative process being what it is, you can bet that lawmakers' ideas of what should be illegal won't agree much with the existing Internet's cultural norms. Lawmakers, for instance, don't seem to have any objection to spam; they don't do e-mail anyway (that's for flunkies to do, with the weekly abstracts presented on nice crisp paper.) It shouldn't be necessary to enumerate the things that our Lords and Masters don't like that we want to keep safe from them.

Bad as the situation with defamation claims may be, always keep in mind that it could be lots worse.

I must say...

Not too long ago, I remember the European /. readers touting how wonderfully respectful their cultures were about others' opinions and privacy, but here we are with the odd anti-privacy web hosting rules in France, and the pushover British ISP's willing to pull a page for any reason.

Here is one part of the article that makes no sense to me:
"To do this, he first runs the trace route (tracert) program which comes, for example, with Windows 95."

Windows 95 doesn't have nslookup, but a ping would do just as nicely, and get done more quickly.

And then I begin to wonder about a site like The Register [theregister.co.uk]... Could Rambus(t), Inc. have the site pulled because of their (admitted) daily beatings on the company?

When I worked for an ISP, various departments got a few complaints about the content of a few sites. We did nothing about them unless they drew excessive traffic, usually porn and warez. We didn't care about anything else, and if we were ever asked about so-and-so's fat stack of Atari and NES ROM's... "We never knew about it".

The bottom line is that no ISP should have to police its own users.

--

Re:ISPs have no responsibility..

It bloody is a big deal. It engenders a climate where any UK-hosted site is at risk. Outcast didnt have defamatory material. It was just enough to suggest that they might defame in the future, and they lost their site, and possibly business.

If I pay for a site, then I have a contract with the ISP. If they renege on that contract at the wave of my competitor's hand, then I should be able to do something about it. But, no. You think its fine to allow my competitor an easy sabotage tool. Gee I hope it happens to you.

There was no Demon ruling

The recent demon et al. decisions, which hold ISP's responsible for defamatory material on their servers.

There was no decision - Demon settled out of court. No legal precedent has been set. I've seen several posts get this wrong here, but I can't be bothered to reply to all of them :)

Free Speech Arbitrage

What I think is interesting in this case (and interesting about the Net in general) is how it allows for a kind of "general arbitrage."

Consider this analogy:
Arbitrage, for the uninitiated, as applied in the stock market means to exploit a pricing inefficiency in the marketplace by making a trade that closes the inefficiency. Arbtriage can be riskless--ie, if a merger is announced at $3 per share, and the stock is trading at $1.50, buying at $2 gives you a riskless return. That's why these differences tend not to exist very long.

The key to arbitrage is availabilty of information--if everyone in the world knows at the same moment that a stock trading at $1.50 should be valued at $3, the price will immediately become $3.

Why this is relevant:
What the internet allows is arbitrage over a wide range of "markets" (including the financial markets). Because information can be served or accessed from anywhere, countries are having difficultly enforcing "legal inefficiencies" that stand in the way of what the users want.

For instance:
--DeCSS banned in US? Serve it from a box in a country with no extradition treaty with the US
--UK ISPs remove content at the hint of a threat? Host it in the US, where laws offer better protection to ISPs.
--Gambling illegal in US? Host it from the Bahamas.
--Pricing discrepancy between Buy.com price for a 19in Monitor and retail store pricing? 800 orders.
--No porn in Australia? A data center in Santa Clara, CA, is the new home for Aussie porn.

Now maybe this is entirely self-evident, based on the design of the internet. And sure, there are ways that nations or companies could combat this, should they really want to.

But as long as there is one country with relatively open interpretations of laws that are strict in other countries, and as long as the technology of the internet continues to allow users to access that "forbidden" content relatively easily, this phenomenon seems likely to continue. Of course, governments could decide to inspect every inbound and outbound packet from their country--but it's not easy.

Maybe instead of tax havens, there will be "Net Havens." Some might call this a "race to the bottom," but I think on balance more people will end up with access to the expression/commerce they desire. I think that's a good thing. And the countries that tend to be more lax in enforcing restrictions on speech/commerce will likely benefit from more internet traffic/hosting business.

Re:Proud to be an American...

Remember though, if every ISP in America decided to do the exact same thing, it would NOT be violation of the first amendment.

The first amendment says "Congress shall make no law..". It is designed to protect people from the government, not from other people.

In the U.S. there is no right to a web page. The only thing the first amendment protects our speech against is the government passing laws.

However, an argument can be made that the laws that allow frivilious lawsuits and bully ISPs into making changes like this limit free speech. But people would be even less happy if their right to sue was taken away.

I don't know how things work in the UK per se, but this is something that even if they had a first amendment, it would not address. The ISPs censored the material - not the government.

Hypocrisy in the UK

The UK .gov claims it is trying to make the country into an e-commerce centre. However with the law and economy we have in the UK, I doubt very much that we'll see it happen. Consider the following factors:

1) The RIP bill which is going through parliament at the moment [stand.org.uk] which would basically allow the authorities to demand anybody's security keys and allow covert monitoring of ISPs.

2) The new tax laws which came into effect this month (IR35), which basically mean that self-employed programmers pay more tax than any other industry (~ 50% of their _company's income).

3) The recent demon et al. decisions, which hold ISP's responsible for defamatory material on their servers.

Quite how the government sees the situation as inviting to e-commerce companies is beyond me.

Re:There was no Demon ruling

You are wrong. A precedent has been set, even though Demon settled. This was
for the first of the two cases that Godfrey brought, and the precedent was
set when Morland (the judge) dismissed Demon's original defence of innocent
dissemination as hopeless after they had been put on notice (which Godfrey
did). If they had removed the offending articles as soon as they were made
aware of them, they would have had a good defence, but as they did not, they
could no longer use that defence. See demon.service for more detailed
discussion on this.