Online speech

[Steve]

English Court May Test U.S. Ideals on Online Speech

Carl S. Kaplan
NY Times 6/5/98


In what many lawyers believe is the first case of its kind, and one
that could test whether expansive American notions of free
expression can prevail on the global Internet, an American university
is being sued for libel in England for its role in the online posting
of a student's statements about an English citizen.

Dr. Laurence Godfrey, a British lecturer in physics and computer
science, has sued Cornell University and one of its former graduate
students in the High Court of Justice in London, saying defamatory
messages were posted by the student to a Usenet newsgroup three
years ago.

Godfrey says that the messages, which were accessible on the
Internet to readers in England and around the world, originated on
Cornell's computer system. He says he asked Cornell officials to
prevent further publication after the first message was posted, but
the university refused, citing concerns about freedom of expression
and the First Amendment.

Many Internet lawyers have been predicting that Internet service
providers and private individuals would eventually be sued in
libel-friendly foreign courts -- raising havoc with American notions
of free expression. 

David Post, who teaches Internet law at Temple University School of
Law, said the Godfrey case was a matter of "the chickens coming home
to roost."

Barry Steinhardt, president of the Electronic Frontier Foundation, a
civil liberties group, added that the Godfrey case was "an
impossible situation, preposterous."

"To the extent that ISPs are subject to idiosyncratic [foreign] laws
of defamation, it is more likely they will censor their users,"
Steinhardt said.

Godfrey charges that the former graduate student, Michael Dolenga,
at the time a Cornell graduate student in biochemistry, used the
university's Internet service to post five messages to the Usenet
newsgroup known as "soc.culture.canada" in 1994 and 1995. The
messages were in response to comments the British lecturer had made
about Canadian politics and culture.

The complaint is not public, and therefore details about the
student's comments are unavailable. The comments were not archived,
and the parties in the case would not characterize the comments
specifically. 

In a recent interview, however, Godfrey said generally that all the
messages contained statements that were untrue and highly damaging.
He characterized some of the statements as "very serious allegations
of a personal nature."

"I suffered damages as a result of these allegations," Godfrey said.
"The messages were read by people [in England]. There are quite a
lot of British participants on the Canada newsgroup."

Godfrey's complaint, which was filed in October, seeks damages of
50,000 pounds and an injunction barring the defendants from further
publishing defamatory statements about him in England and Wales.

English lawyers for Cornell filed an answer in April contesting the
claim but apparently consenting to the jurisdiction of English
courts. The parties are now engaged in pre-trial information
gathering. 

Dolenga did not properly file a response to the court, and therefore
a default judgment was issued against him in February, meaning that
Godfrey has won that portion of the case, although any action
against Dolenga will have to wait until the full case is settled.

James Mingle, general counsel for Cornell, said the lawsuit was
"completely without merit." He argued that Cornell would not be held
liable for the allegedly libelous postings, even if it were given
notice of them, because under English law the university would not
be considered a "publisher" of any statements or messages that are
posted by its students.

"As a legal matter and a practical matter, we are not responsible,"
Mingle said. "We have a million e-mail messages a day." He suggested
it would be impossible for university officials to vet the content
of all the messages on its system.

Mingle said that he would also urge the English court to consider
the case in light of expansive American principles of free
expression.

These cases "are really a major concern," he said. "It's very
troubling to us that we can be yanked into a foreign court and
forced to defend a case."

If Godfrey is successful, he added, then any American Internet
service provider can be "yanked anywhere in the world."

Dolenga, when asked for comment, said the lawsuit was "frivolous."

Under United States federal law, an ISP cannot be held liable for
libelous statements posted on its service by a subscriber or third
party. The rule holds true even if the ISP was given notice of the
allegedly defamatory messages. That point was at issue in the recent
case of Zeran v. America Online Inc., which was decided in favor of
AOL by the U.S. Court of Appeals for the Fourth Circuit. The
plaintiff, Kenneth Zeran, has petitioned the Supreme Court for a
review.

Under English law, however, the extent to which an ISP can be held
liable for hosting defamatory messages is an open question. No court
has yet spoken on the issue.

As a general rule, English libel law holds that any party that
participates in the chain of publication of a defamatory statement
can be the target of a lawsuit.

In Britain, a traditional defense known as "innocent dissemination"
is available to bookstores, printers and distributors who can prove
they were unaware that their products carried defamations. However,
Mark Gould, a law professor at the University of Bristol, in England,
said by e-mail that this defense, which was codified in a 1996 law,
has not been used by an ISP.

Gould added that in the Godfrey case, the fact that Cornell took no
action when notified of the allegedly defamatory messages "makes it
impossible for [the college] to claim innocence."

Godfrey, 45, said he is aware that American standards of free
expression are different from England's. But he defended his lawsuit
by asserting that if an American found himself defamed by an author
in England, "would that person have any hesitation in bringing a suit
in the States, where his reputation was damaged?"

In addition, Godfrey argued that under English law an ISP should not
be allowed to let irresponsible material go out over its system and
just "wash its hands."

However, Post, the Temple University law professor, argued that if
Internet publishers are subject to the laws of all nations where
their postings are received, the law of the most repressive nation
will dominate. "Does [this] make any sense?" he asked, adding later,
"This is not a well-designed legal system if everybody is subject to
the laws of every jurisdiction."

Steinhardt of the Electronic Frontier Foundation said he hoped that
cases like Godfrey's would drive nations to establish international
treaties or a common set of principles to redress certain Internet
problems.

Some lawyers point out that as a practical matter, a libel judgment
issued in England may not be enforceable against a defendant in the
United States. At least one American case, holding that English libel
law is repugnant to U.S. constitutional standards, refused to enforce
a London libel judgment.

Godfrey said he was aware of the precedent but said he was convinced,
nevertheless, that he would be able to collect damages should he be
successful. 

Cornell's Mingle said the university does not have any substantial
assets in England, which, presumably, leaves open the possibility
that the school has minimal assets there that Godfrey may seek.

Godfrey is not a stranger to Internet litigation. He is also suing
the University of Minnesota in London for allegedly publishing a
student's defamatory statement about him on a Usenet newsgroup. Bill
Donohue, deputy general counsel for the university, said he is
contesting a London court's jurisdiction over the matter. A pre-trial
hearing on the jurisdiction issue is scheduled for July 29, he said.

In addition, Godfrey filed a lawsuit last month against a
London-based ISP, Demon Internet Limited, for defamation over a
message posted last year on a Usenet newsgroup.

Two years ago, Godfrey received an undisclosed sum in settlement of
his Internet libel case against another British physicist. He has
also won a libel settlement against an ISP in Australia.

Copyright 1998 The New York Times Company 





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