Posted by Adam @ 7:50 pm on September 20th 2007

Cease and Desist

Via Iain Dale and Dizzy, news that Tim Ireland (no fan of Iain or Dizzy, for the record) has had his site taken down, allegedly for saying mean things about Alisher Usmanov (an Uzbekh billionaire). The news has already made into at least one paper (via Chicken Yoghurt, as linked by Dizzy) as Paul Kelso blogs about it at the Guardian site here.

It’s not the potential legal liability of the blogger that’s the big problem here so much as the fact that a high-priced lawyer merely making allegations can be enough to take a site (or in this case, a server) down without a court order (which would require, you know, some proof to obtain). Interesting times.

22 Comments »

  1. It’s a real problem. Blogging in general can vault regular people to irregular levels of exposure, but since it’s such a direct route, it doesn’t come with the same institutional support it would if one were, say, a similarly popular columnist or radio show host or TV pundit. In those cases, you generally ride upwards with your hand held by an organization, with lawyers and corporate protections and whatnot. As a blogger, you’re on your own.

    Particularly in the UK, libel laws are such that regular folks can’t really insulate themselves from charges. Even if what you write is TRUE, and verifiable, the strength of the charge doesn’t matter in the beginning. Yes, if you win you get reimbursed, but only if you win, and nobody’s going to put up the money for you to challenge upfront (which is prohibitively expensive for most). It’s a slightly better situation in the US. You can be absolutely, even obviously, in the right in the UK, but how many of us are going to pony up the dough to defend ourselves in court? This is one of the reasons Rojas and I rail against the British standards in this case. It’s almost always the case that the person bringing the charges, at least online, has more resources than the people they’re bringing the charges against (because, one would presume, if a blogger is writing about them, they’re a public figure of some sort, and thus probably have a heftier purse than a regular joe). Thus, it just becomes an economic decision at the get-go, before it even gets to a moral or legal one.

    I’ve administered a few mid-level websites (as you know), and it’s always the case that when somebody lawyers up and challenges you, it doesn’t matter the merit of their case, merely the act of making it official forces us to take action in their favor. I’ve gotten a few cease and desist writs in the 8 years or so I’ve been involved in legal entities that publish web content, and the response every time is “abort! abort!”. It sucks. I’ve had to personally deal with it a half a dozen times or so. Thankfully, our servers are usually privately owned–but of course that’s got its risks too. I can say though that I can not think of a case where it would be worth it to challenge, no matter how right you are.

    What also sucks is that ISPs and web servers are notoriously sketchy about these things. Again, a charge is almost always enough to frantically pull the plug, as Ireland is finding out now. Something needs to happen in this respect. At some point, now that blogging has become so ubiquitous, some kind of pushback against this is going to have to happen. My own suggestion is the market should grow some balls. I might pay a little more for web hosting and ISPs and whatnot if, as part of the hosting package, they promised to provide a legal buffer between myself and whatever litigious assholes there might be out there. Say they’re willing to stand up for me and shield me unless a court actually orders a cease and desist. As it is now, a strongly worded personal letter to most ISPs, with the word “my lawyers” in it, is enough to get most places shut down.

    Whatever the solution, cases like this represent in some respect the outer limits of judicial reasonability. When it’s prohibitively expensive to defend yourself from charges, and ISPs and web hosting services are willing to throw anybody but the Top 1% of sites under the bus at a moment’s notice for nothing, something’s got to change.

    Comment by Brad — 9/20/2007 @ 8:05 pm

  2. Well, the problem here is wider than the libel laws (in fact, I don’t think that’s the real problem). The deal in the UK is that ISPs can be held legally liable for what they host, so they take stuff down quicksmart. If it was just the blogger’s liability, it wouldn’t have happened like it did (the libel laws aren’t as draconian as all that).

    Comment by Adam — 9/20/2007 @ 8:14 pm

  3. The ISPs would be held legally liable for…what crime?

    Libel, right?

    So their math is going to be fundamentally different than if the burden of proof were on the people bringing the charges.

    Comment by Brad — 9/20/2007 @ 8:16 pm

  4. In fact, I’d say that the little people are more vulnerable here precisely because they’ll have to bear their own legal costs even when they win. Things like the McLibel case (two hippy types defending themselves; McDonalds won but weren’t awarded their costs, as I recall) are pretty funny, but not normal.

    Of course, in this case, it never got to the blogger being intimidate by threats of a libel case. The ISP caved straight away because of the law that holds them legally liable (which is a pretty crappy law, in my opinion).

    Comment by Adam — 9/20/2007 @ 8:17 pm

  5. The ISPs would be held legally liable forÖwhat crime?

    Libel, right?

    So their math is going to be fundamentally different than if the burden of proof were on the people bringing the charges.

    I think that it’s probably more based on numbers — even if the burden of proof shifts, it’s easier, given the numbers of sites hosted, just to take them down as soon as something sufficiently official-looking turns up. Holding the ISP to the same standards as a conventional publisher is to misunderstand the nature of the internet business, it seems to me.

    Comment by Adam — 9/20/2007 @ 8:20 pm

  6. So, basically, nearly all of the time, publishers can stand behind their work because they know the law, they have lawyers look at it and they don’t publish gigantic numbers of books. Sometimes they screw up, as we have seen, but it’s not that common.

    On the other hand, whatever the standard of proof for libel, if it’s reasonable, the fact that the ISP is considered to be like a publisher and has legal liability for everything it hosts, it just won’t be able to consider the nature of what’s hosted and decide whether it’s legal or not. There’s a straight line between a hosted site libelling someone (based on the local standard of libel) and the ISP getting sued, and losing. The profit from each individual site is hardly enough to justify a serious, expert, look at the site’s content to decide whether the libel has been committed.

    That’s my (possibly incorrect) understanding of it, anyhow. The libel law, well, it’s old and it works OK and people know how to deal with it. It’s the application of that law to ISPs, a new phenomenon, that appears to be misguided, to me (it can be applied to the bloggers themselves, of course, and that’s OK).

    Comment by Adam — 9/20/2007 @ 8:26 pm

  7. I don’t disagree with that either, which was the bulk of what I said before. But I certainly think the nature of the crime that the fear being held liable for plays into it.

    And, of course, even if the law holding ISPs liable were fixed, it would then come back straight-away to the fact that libel is often prohibitively expensive to defend against in your crazy backwards country.

    But yeah, ISPs need to grow a pair. I don’t know that they shouldn’t be held liable, but certainly not to the extent that a publisher is. Like I said, there needs to be some buffer for bloggers besides just “ISPs and hosts run screaming every time somebody lawyers up”. Whether that’s a market correction or a legal one.

    Comment by Brad — 9/20/2007 @ 8:28 pm

  8. Thatís my (possibly incorrect) understanding of it, anyhow. The libel law, well, itís old and it works OK and people know how to deal with it. Itís the application of that law to ISPs, a new phenomenon, that appears to be misguided, to me (it can be applied to the bloggers themselves, of course, and thatís OK).

    Well, yes, the application of old, bad laws to novel situations tends to be the problem with leaving old, bad laws around because they’re old and work ok and people have grown comfortable with them.

    Comment by Brad — 9/20/2007 @ 8:30 pm

  9. Libel isn’t crazily expensive to defend against in the UK, I don’t think (although it can be if both sides are trying to escalate things beyond sanity, which has happened to more than one person, from Whistler right through to Neil Hamilton). Most cases are settled (if you refuse a settlement and later receive a smaller judgement, you have to pay court costs out of your award, I believe).

    It’s not an old, bad, law. It’s a law that’s good for what it was written. Indeed, it’s the expansion of to whom the law is applied that seems to me to be at fault.

    Say that bloggers are responsible for what they write and their hosts aren’t (although they’d have to take it down if, say, they got a court order to do so).

    Comment by Adam — 9/20/2007 @ 8:49 pm

  10. So the problem isn’t resolved at all, it’s just punted from hosts to bloggers. The reason hosts don’t want to deal with challenges is the same reason individual bloggers won’t. It’s because it’s more expensive to deal with than it is to capitulate out of hand, regardless of the strength or veracity of the charges. Presumably (hopefully) in the case of the bloggers it just means they automatically take down the offending content (rather than the whole site), which is some consolation, but the problematic framework remains. If somebody wants to file a legal charge, the burden of proof ought to be on them in the beginning (this applies as a general rule). The law, I think, should fault on the side of protecting speech, not protecting sensitivities. Otherwise you get a situation much like this one, where the law doesn’t abdicate, it becomes a blunt weapon that people of means can level against and use to intimidate people of less means.

    I also don’t know that determining that hosts aren’t liable for any of the content they serve would be a necessarily better legal situation. Certainly we want them to be liable to SOME degree, or else they’d just host a thousand warez and kiddie porn sites and could reasonably say “sorry, go talk to all of them”.

    Admittedly, it’s a crappy situation, but one that, I think, goes deeper than just this unfortunate case, or ISPs working in their own self interest.

    Comment by Brad — 9/20/2007 @ 9:12 pm

  11. The problem belongs with the bloggers. Don’t make harmful accusations as fact without being able to back them. It’s not such a big deal.

    Of course, given that ISPs are liable, the whole discussion is moot. It’ll never get to the stage that we’re mostly disagreeing about.

    Comment by Adam — 9/20/2007 @ 9:22 pm

  12. Of course, none of this debate would be necessary at all if you learnt your lesson and just believed every thing that I say.

    Comment by Adam — 9/20/2007 @ 9:31 pm

  13. I don’t disagree that the problem belongs with the bloggers. Though, by the way, in the United States you still have to back up harmful accusations, you just aren’t presumed guilty from the start. The difference is that every time, in the UK, somebody levies a charge that they’re being libeled, the presumption is that they’re right. Thus, everything printed anywhere is judged libelous until proven otherwise, essentially. Which is ridiculous, if you ask me.

    If you’re levying a charge against somebody, my thinking is, you should be able to prove that said charge has substance before it even gets INTO a question of who’s right. But that’s me.

    The problem, it seems to me, is less that ISPs are liable (I’m kind of thinking they should be, at least on some level), it’s the huge weight that the mere threat of a libel charge carries, to the point where it’s always going to make more sense to roll over straight away, regardless of how right you are or may be. That will apply, as I said, to bloggers as well as ISPs. We’re hosted in the UK, I don’t make it practice to say things that I’m not able to back up, but are you or anybody else going to stick your neck out on my behalf if somebody comes to us threating to sue? No matter how right I am? I’m not going to stick my OWN neck out on that front, and who can blame me?

    It would be nice to have available some sort of buffer in those cases, is all I’m saying. Say, a presumption that speech is worth protecting unless a plaintiff can give good reason why not.

    Comment by Brad — 9/20/2007 @ 9:32 pm

  14. You aren’t ‘presumed guilty’ — it’s not a criminal trial.

    You have to provide evidence. Of course, if you can, you won’t end up screwed paying lawyers, which you will if winners generally pay all or some of their own costs. I’d rather have it that way than have it so that I can be right, win and still end up out of pocket. What did I do to deserve that?

    The case that got so much attention, with the CUP book, was a balls-up by CUP. When they looked at what they were publishing, they knew it too, so they rolled over straight away.

    Comment by Adam — 9/20/2007 @ 9:36 pm

  15. The point with the ISP, it seems to me, is that if you host thousands or tens of thousands of sites, pretty much whatever the standard applied to libel cases, you are not going to be able to check the content through with a lawyer. As I recall, it was the decision that ISPs were liable that chilled the ISPS, not the (pre-existing) British libel laws.

    Comment by Adam — 9/20/2007 @ 9:38 pm

  16. Why do you hate freedom, Adam?

    Comment by Brad — 9/20/2007 @ 9:38 pm

  17. No, no, why do you hate freedom?

    You’re the sort who’d want to cut and run whilst defying the constitutional option.

    Also, I am pretty sure that you don’t like apple pie, either.

    Comment by Adam — 9/20/2007 @ 9:46 pm

  18. Except this a UK ISP, correct? So shouldn’t your accusation reference some god-awful, inartfully named mass of goo? Spotted dick or something?

    The UK libel laws, combined with a lack of something akin to the US first ammendment, strikes me as unusually intolerable for a free people. Of course, the UK probably still has habeus corpus and anti-torture provisions. So win some loose some, I guess. Then again, we don’t have ASBOs. Or a growing government controlled public security camera system, a la V for Vendetta. So, I’ll stay here I think.

    Comment by Misanthrope — 9/20/2007 @ 10:25 pm

  19. The significant majority, I believe, of the surveillance cameras are privately owned. But it’s not without concern (although there’s no expectation of privacy in a public place, clearly).

    Comment by Adam — 9/20/2007 @ 10:40 pm

  20. Does this mean Brad can sue me for calling him a pin-headed geek?

    Comment by James — 9/21/2007 @ 1:18 pm

  21. Um…

    …now that everybody in the universe is linking to this post, and proudly listing us among those brave souls willing to stand up in defense of free speech…

    …um…

    …I’d just like to make clear that PERSONALLY, UNLIKE ADAM, I have the utmost respect and admiration for Mr. Usmanov.

    In particular, I wish to express my admiration for Mr. Usmanov’s skillful and handsome team of lawyers. They, and he, are wonderful souls, paragons of decency, sportsmanship, and above all, restraint. That last being, surely, the most admirable of all human virtues.

    Comment by Rojas — 9/22/2007 @ 11:03 pm

  22. Usmanov may have to find himself a Welsh-speaking lawyer.

    Comment by Adam — 9/23/2007 @ 12:34 pm

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