ISPs and hosting sites could be subject to increased liability for defamatory content, uner  new laws proposed in two EU Member States: Italy and Britain. However, the recent case of Lord McAlpine  in Britain illustrates how the existing law can cope very well with defamation via the Internet, and seems to suggest an interesting solution – if only policy-makers would consider it!

 Both the British and Italian proposals favour a form of notice and takedown procedure. It looks as though the Italian law asks hosts to remove content on request, without a court order. What is not clear, is whether that only means asking whoever is hosting the content to remove it, or whether it entails some kind of further blocking action by ISPs. 

The British law is still in an early draft stage, and the Internet issues were consulted on, with, from what I can see, no draft text yet available. However, the Parliamentary report on the Bill did discuss notice and takedown procedures at some length, and  importantly, it is concerned about protecting the rights of   whistleblowers against malacious take-downs.

 Lord McAlpine was the subject of a series of defamatory allegations by high profile BBC and ITV news journalists. It subsequently emerged that the accusations were totally false, when the accuser himself went on air to apologise, and the journalists have been publicly castigated.

However, the allegations were not just broadcast in the conventional way. They were tweeted and re-tweeted, it seems many thousands of times.

 Lord McAlpine’s response is interesting for those who study Internet policy. He is intent on getting damages from all, and is taking a staggered approach.

 He has already agreed substantial damages with the BBC and ITV in the conventional way. It’s how he is dealing with the Twitterati that is fascinating.

 He has trawled through all of those who tweeted and re-tweeted, and found a way to categorise them into high profile tweeters and followers.  From what I gather, he is making the categorisation according to the number of followers that someone has.

 He is then threatening to sue a handful of high profile tweeters. All the rest, which apparently comprise several thousand people, are being sent a form to fill in and return, and are being asked to make a small donation to charity.

 Will he get them all?  Probably not. Does it get an ‘educational’ message across? Probably, yes.

 This is an old man who could have said ‘block ‘em all up and tell their ISP to throw away the password’. He didn’t. 

It's a lesson that many policy-makers, in Brussels as well as the Member States, would do well to heed.

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This article has been prepared using the following articles, as well as various BBC Radio 4 interviews with Lord McAlpine.

 The Guardian   Lord McAlpine and the high cost of tweeting gossip

The Guardian McAlpine libel: 20 tweeters including Sally Bercow pursued for damages

The Daily Telegraph Lord McAlpine tells Twitter users he does not intend to 'create hardship' as he pursues them for damages

  This is an original article from Iptegrity.com. If you refer to it or to its content,  you should cite my name as the  author, and provide a link back to iptegrity.com.  Media and Academics – please cite as Monica Horten,  Defamation on the Net: can an aging Lord show the way?  ,   in www.iptegrity.com,  28 November   2012 . Commercial users - please contact me.

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