Mumsnet's net libel battle
OUT-LAW Radio, 17/05/2007
We talk to Mumsnet founder Justine Roberts about an epic web
forum libel battle and to an academic who wants to turn copyright
on its head.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW Radio, the weekly podcast that
keeps you up-to-date on all the twists and turns in the world of
technology law. Every week we bring you the latest news and
in-depth features that help you to make sense of the ever-changing
laws that govern technology today.
My name is Matthew Magee, and this week we talk to Mumsnet,
which has just settled a vital online defamation case, and to an
academic who thinks that artists and companies should have to
defend their entitlement to copyright in court or lose it
altogether.
But first, the news:
- Medical details exposed by healthcare giant; and
- Information Commissioner investigates Halifax Bank of
Scotland.
Healthcare firm Roche Diagnostics has exposed the personal and
medical details of customers on its website. The firm has admitted
the security breach but has not explained how it
happened. Roche customers who had registered their details
with the firm received a first edition of an email newsletter last
week which included a link via which they could update their
personal details. Users who clicked on that link were directed to a
Roche website which displayed the details of someone else. Roche
spokeswoman Hazel Clarke told OUT-LAW that the link was
deactivated later that morning. Clarke was unable to say how many
people had had their details exposed or had seen the personal
details of others. She could not say how the breach happened or how
many people the email was sent to.
The Information Commissioner’s Office (ICO) is conducting an
audit of Halifax Bank of Scotland’s data security procedures after
it was revealed that the bank was putting customers’ financial
documents in ordinary bins.
The act, uncovered by the BBC’s Watchdog programme, is in breach
of an undertaking to the ICO signed by HBOS earlier this year after
it was found throwing out documents containing customer
details.
The ICO is conducting an audit of HBOS and its security
procedures and will soon examine the evidence gathered by Watchdog.
If a breach is found then it will serve an enforcement notice on
the bank. A repeat offence and breach of the notice will be a
criminal offence and will open HBOS to prosecution.
That was this week’s OUT-LAW news.
Participation, involvement, interactivity – these are the heady
promises of the web revolution, where everyone can have their say,
expertise can flow freely to where it is most needed and where the
right to comment and criticise is no longer restricted to a few
cloistered newspaper columnists.
But Justine Roberts discovered the downside to those
liberties when her whole business was threatened because of
supposedly libellous comments made on a message board she runs. Her
case tested the very limits of the laws governing the web’s new
freedoms.
Roberts founded mumsnet.com, one of the UK’s most successful
online communities. Its unedited message boards hum with thousands
of messages a day on everything to do with parenting, including the
advice of controversial author Gina Ford. Famous for
advocating super‑strict baby routines, Ford is the author of this
generation’s defining baby rearing book, ‘The Contented Little
Baby’.
Ford objected to comments made on Mumsnet’s forums by its users.
She demanded that they be taken down, and that Mumsnet apologise.
Then the demands got more serious.
Roberts: We first received legal letters
about a year and a half ago complaining of some posts on our
bulletin boards made about Gina Ford and the post that was
complained about were alleged to be defamatory. We sort of along
the way acceded to all the requests, but the requests kept mounting
up. The first request was merely a clarification that Mumsnet did
not support some of the unpleasant comments that had been said
about Gina Ford which we agreed. The next request was to
remove everything which they asked us to remove. And then the
request was to produce this statement which, again, we agreed to.
Finally, though, having agreed to all that there was the demand for
money and that is where we drew the line and said no we are not
going to pay you upfront damages and costs.
Roberts wanted to fight at least part of the action, but she
soon came upon a problem: it was far from clear whether or not the
law was on her side.
Roberts: The law is not particularly clear
because it has never really been tested in terms of most websites
rely on this idea of notice and takedown which is a system whereby
if you are informed of something that is defamatory and you remove
it within – I think the word they used is ‘expeditiously’ then you
have some defence in law. There are two things that are a bit
unclear as far as we are concerned and our lawyers’ advised us. One
is how swift is swift, how expeditious is expeditious, how quickly
do you have to remove something when it is reported to you to be –
for it not to have counted against you? And secondly, you know, if
something is up there and you do remove it can it still be argued
that if it is defamatory and it has caused damage to someone’s
reputation you are liable for that.
The only possible guidelines on what ‘expeditious’ might mean
are in the Terrorism Act, where the Government decided that any
statements illegally encouraging terrorism should be removed within
two days of a police warning.
While that can provide a clue as to how the courts might act,
they have never ruled on what ‘expeditiously’ means in a defamation
action. Roberts did not relish being a test case. She settled.
Roberts: Yes, it is a test case. Someone needs
to fight it, but it was going to cost us a lot of time and money to
do it and it was uncertain, as is everything in the law. In this
law it is uncertain what the outcome might be and we are a small
operation with not too many resources. We were not keen on being
that test case. The truth of the matter is that it cost us less to
settle than it would have even if we had won in court because you
do not recover your full costs in court.
Roberts was without insurance, a costly extra for small
publishers that she now has and would recommend anyone with
unmediated forums to have.
Roberts: We now do have insurance and it cost
us I think about £3,500. It covers the cost of fighting a case or
defending a case, if the case is deemed to be defendable, if you
know what I mean. The problem with it is that I think the insurance
appoints – it gives the insurance company the right to appoint the
lawyer, so you cannot necessarily say right, I want this top guy.
So you lose a bit of control but I think as a backstop it is
definitely worth having.
The case has been avidly followed as a bellwether for other
forum bases. Roberts says she thinks that the fear, uncertainty and
doubt surrounding the unclear law is already having a corrosive
effect on the power of web publishers to provide a forum for real,
healthy, honest debate.
Roberts: In the barrage of legal letters
we received we took down a number of things complained about which
were clearly not defamatory because whole threads were removed
instead of just individual posts because that was what was
demanded, and I think people have not got all sorts of things –
they have not got the time, the money, the legal expertise to
evaluate everything and I think they would take the easy option. A
small website and we would just remove posts and I cannot sit here
and blame anyone for doing that. Having had the experience we have
had we sympathise with anyone who takes that course of action.
Copyright is a battlefield. In it big business fights with
consumers over exactly what it means to buy a CD, book or picture,
using thundering legal big guns to defend their economic interests,
while artists stand somewhere in the middle, trying to earn a
living but possessed of a somewhat more nuanced view of what to
degree art and culture can be owned.
Enter Lior Zemer, an academic who has an idea for turning
copyright on its head. On the one hand he wants copyright in some
cases to be perpetual. On the other, he wants every copyright
holder to justify their monopoly over their content.
The idea from which all his argument stems is that we all
contribute to art.
Zemer: The main argument is that the public
does play a major part in the very process of creating copyrighted
material. I would share the property right with the public for the
main reason for – I would say the only reason – that the
public plays a decisive role in the creative process. It does – it
provides the framework, it provides the social, the cultural and
the other materials that without which the final product would not
have come to existence.
Zemer says that society fails to understand how cultural
material is actually produced. We cling on to our romantic notion
of the artist in a garret that is, he says, far from the truth.
Zemer: There is lots in writing but see
the authors as almighty creators. They create from nothing, from
thin air. And this is absolutely – it has nothing to do with
reality because when you ask authors, authors themselves say that
they react to what they see and they react to what society and
culture have to offer, and without the public as part of the
creative process copyright works and authorship would have nothing
to offer.
So how would Zemer’s new copyright system work? He has a pretty
unusual idea. On the upside for owners, copyright could last
forever. On the downside, you would only ever be issued with a five
or ten year rolling copyright licence.
In order to get copyright in your work in the first place you
would have to justify the monopoly by demonstrating that the work
was down to your creative efforts, and not society’s contributions.
Then you would have to re‑apply every five or 10 years to make
the arguments all over again.
Zemer: It is a sort of joint right between the
public and the authors in every copyright work. The length of the
right should not be more than I would say five or 10 years
renewable term. The court would be able to say okay, this
particular work deserved extra protection. What I propose is a
perpetual right in copyright that will last for good, in perpetuity
and say, five to 10 years renewal indefinitely.
There are a few exceptions and limitations to copyright:
libraries, students, disabled people and other groups can use
material without permission. Zemer’s plan, outlined in a recent
book called ‘The Idea of Authorship in Copyright’, would involve
authors signing up to an open, potentially ever expanding list of
exemptions that could be changed at any time.
Zemer: If a certain party would like to use a
certain work then the court would say okay, we have an open ended
list of exceptions and limitations so let us give the public a
right or defence and not be liable for infringement.
So who should decide who is awarded the five to ten year rolling
protection? Zemer says the courts.
Zemer: Copyright is not patent law. If judges
can decide on the inventiveness and the industrial applicability
and the novelty of inventions then why should judges not be able to
decide on the artistic content and the creative input of a
particular work?
Lior Zemer there, with a radical view of how copyright
should work.
That’s all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of
technology law story? We’d love to hear from you on radio@out-law.com.
Make sure you tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by
Matthew Magee for international law firm
Pinsent Masons.
