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UK Websites and ISPs could now be forced to disclose the details of anonymous forum posters, following a High Court ruling involving Totalise, the ISP, and investor sites Motley Fool UK and Interactive Investor International.

In a judgment from February, but appearing only now in the law reports, Totalise successfully obtained the identity of Zeddust, a poster of defamatory statement on the discussion boards of both sites.

Zeddust began posting his stuff on Motley Fool's site. Totalise's solicitors complained. Motley Fool removed Zeddust then banned him. Totalise demanded that Motley Fool reveal Zeddust's identity, a step too for for the Website, which refused.

Zeddust popped up again, this time on III's forum. And again Totalise sought the identity of the poster; III removed the posting but refused to name the author.

The court ruled that the Websites couldn't protect the identity of the forum posters, in the way that a newspaper can protect its sources, as no editorial control of the forums was exercised: ie. the Websites did not get the protection of section 10 of the Contempt of Court Act which says: "No court may require a person to disclose ...the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."

Justice Robert Owen ruled "disclosure was necessary in the interests of justice."

So, as NeedTo Know, the estimable newsletter, points out: we now have the situation where UK sites can be sued for libel because they are publishers (the Laurence Godfrey/Demon case), and where they must reveal details of anonymous posters because they're not publishers.

And isn't Totalise, as an ISP, shooting itself in the foot with this action?

The ruling, according to Dai Davis, a consultant lawyer at UK legal firm Nabarro & Nathanson, is an application of old laws.

As regards copping to a charge of libel due to the acts of your users, there is good news on the horizon for ISPs/Websites. The government's e-commerce directive, required to be made law by 17 January 2002, will allow the defence that you can host information, as long as you didn't know it was illegal. You'd still have to grass up whoever made the posting, though.

The only way round that is not knowing who's posting to your site. "If you don't know, you can't be made to say," Davis says. ®

Related Links

The Times law report
NeedTo Know

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The ISP liability Demon invoked again
UK Court rules on ISP liability

Demon libel loss could cripple Internet free speech

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