Unease on the open highway

June 9, 1995

Universities may be forgiven for feeling anxious about what their staff and students may be saying on the Internet. The first they may hear if someone goes off the rails is the thud of a writ, delivered by snail mail. This week will have increased that unease - but it is also the week when they can start to do something about it.

Increased unease will come from the news that an academic accused of libel on the Usenet, part of the Internet, has settled out of court. This result, while not yielding any case law, could encourage others to threaten suits. Worse perhaps is the news that an American company which runs an online computer service, has been told that it has responsibility for the messages that appear.

Universities are nodes for the Internet although they would be unlikely to declare that they have editorial control over their users, which is the mistake that the American company made. On top of that a London lecturer is threatening to issue writs against a Canadian university which he says did not remove an alleged defamation even though it was told that the source might be within the institution.

The chance to act comes with the news that the Government is attempting to grasp the nettle in a draft bill on libel and defamation to be issued by the Lord Chancellor's department next month.

The bill was originally devised after pressure from the printing industry. At the moment printers can be sued for libel even though their contribution has been merely to print the publication.

Instead they want to be included in the category of people who can escape being sued by pleading "innocent dissemination". Now the bill is being extended so that it will also clarify who is innocent in the electronic media.

This could be good news for universities. It is likely that the bill will single out publishers, authors and writers as suitable targets for lawsuits, relegating others to a second category. This second category will include printers, film distributors and other crucial groups, such as those who operate equipment that is used to retrieve or distribute information; and those who run the communication system that was used to transmit the defamatory statement.

That second category could include universities. But protection is not guaranteed. First, the systems universities work with involve varying levels of control over content.

Second, universities do not necessarily fit snugly into any of the proposed exempt categories. And third, universities may still be given a duty of "reasonable care".

This could mean that they should warn every user of their system that they must not make defamatory remarks; or it could mean that they must take steps to restrain the author of a defamatory statement once it has been brought to their attention.

Clauses in contracts of employment could offer some protection, but universities could find that this baggy concept "reasonable care", beloved of Whitehall draftsmen, could be construed, for example, to mean that they should undertake to teach all their users about defamation, or find a way to monitor use of their systems.

In the open world of universities, thousands of students and library users as well as staff have access to the Internet through the university's computers and the Janet network all day every day. Training and policing will hardly be practical.

Universities with their own electronic highway up and running and now being upgraded, are leaders in the use of the Internet. They will need to take the lead in scrutinising proposed legislation so that it does not impose unacceptable burdens or expose them to undue risk.

They will also need, however, to ensure that robust academic debate is not constrained either. They will need expert advice - if they can find it on this new frontier where there is no case law to guide them.

They will also need to move quickly in order to avoid becoming the subject of case law themselves.

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