UPDATED: Outcast: Censorship Under The Digital Union Jack?

Serving a community that prides itself on solidarity and free thinking, Outcast magazine has been the center of a censorship issue that has gone from a virtual push to a very real shove. With the advent of British libel litigation that borders on the unbelievable, I spoke to Outcast's editor and publisher Chris Morris about the magazine, ISPs, and free speech under the digital union jack. Update: 04/06 06:48 by E : NetBenefit has written in with their side of the story, and well met. How long until we hear from the Pink Papers?

Slashdot: What happened, Chris?

"On 17th March, Mishcon de Reya, one of the biggest firms of media lawyers in the UK, wrote to Outcast, and the company that prints our magazine, and the company that hosts our Web site, stating that if we ever published anything defamatory, they would sue us. They were representing one of our rivals, the Pink Paper. We thought, 'fine,' because we didn't intend to publish anything defamatory. Outcast is a controversial magazine but we know how far we can go, and we'd never deliberately print anything untrue."

"The printing company tore up the letter because they know the type of magazine Outcast is and know that the editorial team can be trusted. However, our Web site company -- NetBenefit PLC -- was not so sure."

"They wrote to me on 29th March giving me two hours to fax them an assurance from a solicitor that our site did not contain any defamatory content and asking for a written guarantee that it never would. I was out of the office working in Parliament, and returned to find our Web site suspended and an error message where it used to be.

"I faxed NetBenefit on 30th March, pointing out that the article Mishcon de Reya were referring to had not even been published yet, and they were effectively censoring us before knowing what the article was about. They were finding us 'guilty until proven innocent.' I only received a very brief reply from the managing director, Alison Sparshatt, and it did not address my concerns. She has refused to take my phone calls since."

"NetBenefit has told journalists that our site will not be reinstated unless we provide them with written assurances about the content of the site. They appear to accept that nothing defamatory has ever been on the site and agree that there is no reason, apart from a letter from our rivals, to suggest there will be in future. But they say they have to 'play it safe.'"

"To have a solicitor write these assurances would cost in the region of 5,000 US dollars and, because Outcast is a small, community-run magazine, managed by volunteers, we cannot afford it. In any case, we don't think it is fair that we should be asked for guarantees like this -- none of NetBenefit's other customers have been asked for those assurances."

Slashdot: This is extremely frightening; what did you do to let people know about this?

"Outcast issued a press release to the national media at 2pm on 30th March, after it became clear that NetBenefit were not prepared to discuss the case with us. We used the OutRage (www.outrage.org.uk) e-mailing list and flooded the newsgroups."

"Later that afternoon, I sent out a further message asking supporters to e-mail Alison Sparshatt ([e-mail]) to object to the censorship. We asked people to c.c. the message to us, and we have received about 300 to date. I think that's a fantastic response, but we need to keep up the pressure."

"We also got in touch with the Campaign Against Censorship of the Internet in Britain, Feminists Against Censorship and the Anti-Censorship Campaign, all of which have supported us."

"Yesterday I wrote to all the directors of NetBenefit PLC at home asking them to intervene to oppose censorship."

Slashdot: Have you found that people are supportive to your cause?

"The support has been overwhelming -- far more than I expected. I think we've hit a nerve because this is the first time that a UK website has been censored before it has published something."

"The media have been great and have put a lot of pressure on NetBenefit. I also expect a number of politicians to announce their support for us next week if the matter hasn't been resolved by then."

Slashdot: I almost hesitate to ask this, but do you feel the shutdown was targeted at your site because of the sexual preference of your readership?

"I don't think so. The problem is really that ours is the first case of its kind since the Demon Internet 'Net Libel' settlement last week. That case appears to have set a precedent that UK ISPs can be held responsible for the content of newsgroups or websites they host. However, to censor something before it has been published is clearly an over-reaction."

"We can understand NetBenefit's fears and appreciate that they're only acting on the advice of their lawyers. But censorship on the Internet is something to be fought and that's why we're challenging their decision rather than changing to another ISP."

"The real blame lies with the Pink Paper, whose lawyers sought this censorship. They have exploited the ambiguous Internet laws to try to put us out of business. They seem to want a monopoly of the gay press."

Slashdot: In the immortal words of Bruce Perens, "If Slashdot's only good at one thing, it's good at raising a ruckus." Where do we go from here?

"We cannot let this be covered up. If NetBenefit win this case, the precedent will be set that any ISP can remove an entire website because it might contain something defamatory some time in the future. That means they can close down any website at all. It is a violent attack on free speech."

"We are asking supporters to e-mail Alison Sparshatt at NetBenefit and the owners of the Pink Paper to object to their pro-censorship stance. Please c.c. your message to [e-mail]. The site is currently at http://www.gay-news.org.uk/outcast."

Needless to say, Slashdot tried to contact NetBenefit and the Pink Paper, to no avail. I would like to go on the record as stating that if representatives from the Pink Paper or NetBenefit would like to contact me, they may do so at my E-mail address, and I will update this story accordingly ASAP.

I did manage to speak to John Shirley, a manager at After Words, a popular Philadelphia-area gay bookstore. Having explained the situation to John, he noted that while he wouldn't pull the offending paper off of the shelf, they would certainly let people know about it. "We try to advocate on the side of the little guy in general," John said. "We would consider posting something on a bulletin board, especially if it were a magazine that people knew or cared about, in order to create some public outcry."

UPDATE:

I just got this in E-mail from Alison Sparshatt at NetBenefit plc.

NetBenefit Statement April 6 2000

Outcast, a customer of NetBenefit's web hosting services, recently claimed that NetBenefit had attempted to censor Outcast. NetBenefit rejects this.

NetBenefit does not censor any web site it hosts. NetBenefit is happy to host a web site such as Outcast - Outcast was accepted as a NetBenefit customer without question. NetBenefit will continue to support customers who seek to use the web to publish their views, whatever views they espouse, provided they keep within the law and do not expose NetBenefit to unacceptable risks which are clearly spelled out in NetBenefit's terms of business.

NetBenefit has been advised, following the case involving Demon and Laurence Godfrey, that we are obliged to review the content of a web site once we have received a warning that potential defamatory material is expected to appear on it and to act very quickly if potentially defamatory material is found. This applies to all Internet hosting companies operating under English law. We received advice that Outcast actually had on their web site material that was potentially defamatory. NetBenefit had no choice but to take action to avoid an unacceptable risk of being drawn into one or more costly legal disputes which were not of its own making but in which NetBenefit, merely a provider of web space, could be held liable to the same extent as someone who uses that web space to publish a defamatory statement. The Demon case has shown this to be a real risk for providers of web space and ISPs in the UK.

NetBenefit was entitled under the terms of business Outcast accepted, to suspend Outcast's web site without notice, but instead NetBenefit gave notice before suspending Outcast's web site and sought strong assurances from Outcast: specifically an assurance from a lawyer about the then current content of the site and Outcast's assurances about its arrangements for future content. Outcast responded to NetBenefit, acknowledging NetBenefit may be liable for any defamatory content Outcast publishes. Outcast failed to confirm its existing content was not defamatory, and indicated Outcast is not in a position financially to have its content checked by a lawyer but gave no assurance that future content would not be defamatory. Outcast alleged the suspension of their web site was censorship and gave an ultimatum demanding the lifting of the suspension. Outcast's response therefore contained no assurances whatever and NetBenefit declined to reinstate access to the web space, which Outcast since decided to relocate.

We recognise Outcast is in the business of publishing and so understands these issues. We would invite Outcast to campaign on the real issue: the need for a change in the law to allow Internet hosting companies, like NetBenefit, to provide the service Outcast and others are seeking.

---------------------------------
Alison Sparshatt
Managing Director, NetBenefit plc

Who would do such a thing?

Wow, that's some stupid censorship there. Those lawyers are acting really gay... um. I mean, not that there's anything wrong... um, I meant to say lame. They're really *LAME*.

Oh, and I am not a gay lawyer. Not that there's anything wrong with that. The gay part that is, not the lawyer part. I mean... oh, nevermind!

The Pink Paper is free. And it's a rag.

It won't work. First, the Pink is free, and left in big piles at gay venues; few subscribe. Second, everyone already knows it's a nasty rag, but it's free so they read it anyway. Third, Millivres, the publisher, already own half the gay press.

The Pink survives by selling the Pink Pound to advertisers: lots of dual-income no-kids people to sell lifestyle shit to.

As for "gay community leaders": Peter Tatchell, probably the best known gay campaigner in the country, is already involved in creating Outcast, so I expect he'll be making his opinion known. However, that the Pink is bad news is not news at all.
--

Censorship and ISPs

"We cannot let this be covered up. If NetBenefit win this case, the precedent will be set that any ISP can remove an entire website because it might contain something defamatory some time in the future. That means they can close down any website at all. It is a violent attack on free speech."

Fact is, ISPs have that authority now. As the owners of the equipment used to put your website up, they have the right to refuse any content that they deem inappropriate. This is not really censorship in the strictly legal sense because it is not the government that's doing the censoring. An ISP and any other private business basically has the right to say, "I don't like your politics/lifestyle/your hair/whatever, so I'm not doing business with you." I certainly would not host web sites for Neo-Nazis, as an example. It's a free market (in theory) so you can refuse to do business with some people if you choose. Now, your local/national gov't may disagree, as would the FTC in the US, but really there isn't a hell of a lot anyone can do about it. I'm sure an ISP could always come up with some reason or another that they can't host one site or another.

Think about it. If you own the hardware that the site resides on, and you lease the lines from the telco/whoever to pump the data out, then you can shut any site down you want. You could even flip a power switch and shut them all down. I'm not saying this is good policy on the part of an ISP, but it's not censorship and it's certainly within the ISP's right considering it's their equipment and you must agree to their policies in order to use it. You can always go somewhere else if you don't like how one ISP does business.

In this specific case, yeah, they might have overreacted. I'd just get a new ISP (preferably outside of UK) and forget about it. If you get an ISP in a country where ISPs aren't responsible for what their customers post and that is beyond the reach of British law, then you won't have to worry about your ISP being sued, just yourselves. :-)

If you want to fight back. Slap the Pink Paper with a restraint of trade/unfair competition type lawsuit if you have such a thing in the UK. This is an obvious attempt to put you out of business using strongarm tactics and would probably qualify as a restraint of trade in the US. Unless the article in question has something to do with the Pink Paper, then they have no business threatening to sue you if you publish something defamatory. Why would they threaten to sue on behalf of a third party if they didn't want to put you out of business?

Anyway, if you want real legal advice, cough up the bucks and hire a solicitor. Sounds to me like your enterprise has gotten important enough to need one. If you can't afford a solicitor, then too bad. Maybe you could get the Pink Paper to buy your outfit, then hire a solicitor, say they screwed you, and sue to get your business back. :-)

This is a good thing, actually!

No wait, listen to me first.

In his words: "The problem is really that ours is the first case of its kind since the Demon Internet 'Net Libel' settlement last week. That case appears to have set a precedent that UK ISPs can be held responsible for the content of newsgroups or websites they host. However, to censor something before it has been published is clearly an over-reaction."

Hold onto that quote. That is the problem. NetBenefit PLC is acting entirely rationally, given the great liability to which they are now exposed. They are not the problem... it is the ruling.

Can you truly say you would do any different if you were completely liable for the contents of your customers web sites? Focus your efforts on the true problem, which is that damnable libel ruling... not NetBenefit PLC.

Raising a ruckus...

This is a perfect example of how case law can be abused to deny a person or group fair and equal treatment based on a prejudice.

A bad decision in the Daemon UK case, (IIRC a basically bigmouthed person successfully sued the ISP for not removing some inflammatory information about him) and now the British ISP's are so worried about being sued that they overreact and start pulling crap like this on their customers -- my guess is that it's the more controversial sites that are being targeted -- and just like that we have an economic blockade to free expression.

I wonder if bandwidth constraints keep the idea of hosting their site outside the UK unfeasible, because sure shooting the day an ISP does that to me (here in the US, by the way), it will be the last day I do business with that ISP, and I would probably countersue if at the time they dropped my site I was in compliance with all of their existing rules.

Just for the record, I am MMFM (monogamous married hetero male), so I'm as far from gay as a man could get, but I still stand on the side of Outcast and agree that the web (/.) community needs to raise a ruckus against the ISP.

NetBenefit Info

I think that's a great idea. In the interim, here is some more relevant contact info:

Jonathan Robinson [mailto]
11, Clerkenwell Green, London EC1R0DP, England
[phone]

Stephen Keay [mailto]
10-11 Clerkenwell Green, London EC1N 0DN, England
[phone]

IP address allocation info can be found at whois.ripe.net under NETBENEFIT-NET-1 (They've got their own ASN and a /19).

There's a US branch, as well:

Netbenefit Inc.
55 Broad Street
18th Floor
New York, NY 10004

Their upstream provider is:

COLT Telecom Group plc [colt.net]
International Headquarters
15 Marylebone Road
London
NW1 5JD
Telephone [phone]
Fax [phone]

They have a "fibre-optic" backbone that goes straight into London, and they offer services in several European countries. They've got 497 million pounds of equity, according to their latest financial statement, so we could probably milk them for tons of money if we threatened to bring suit against them for hosting NetBenefit which slandered Outcast (or just make them worry enough about us milking them for tons of money that they take down NetBenefit).

Re:The Connection

Not quite true, the court did not find for Godfrey

The courts didn't find for Godfrey, but a precedent was established - innocent disseminiation is not a defence when put on notice. Justice Moreland ruled on this about a year ago, saying the defence was "hopeless in law".

A hetero, redneck, assault rifle for free speech.

I propose that we remember what civility, and, in particular, the American ideal is supposed to be: don't put down my weird habits, and I won't put down yours. If you like guys having sex with guys, I might think that's sick, but, by all means go ahead, just so long as you don't try and take away my assault rifle. It follows then, if someone is disrupting the weird behavior of one group, then a dangerous ground has been broken. If it is ok to bash one group for its quirky behavior, then it is ok to bash them all. First on the streets, then in the press, then in the politics, group bashing escalates and this can only lead to civil war. Censorship is a tool of this conflict, and so to promote censorship is to promote war.

So... the next time you see a web site that is getting hammered because you think it is disgusting, stand up for that site - making it clear that you expect quid pro quo for your support. Say "I'll defend your right to have your sick lifestyle if you'll defend my right to have mine." Some people are into packing fudge. Some people are into collecting and shooting assault rifles. It's a sick world but it can be all good. We just have to remember that if we don't let anyone dampen someone's freedom, then nobody will dampen our own.

Pink Paper online partner offers free web space

Just googled for the Pink Paper; it doesn't have an online presence per se but partners with a G&L portal site, SoNow [sonow.com]. The Pink Paper appears to be providing news (well, little lite bites thereof.) and SoNow provides, ahem, free email and web space.

The next move is obvious. Register Outcast with sonow.com and publish it from there. :)

My letter... feel free to borrow

To Whom It May Concern:

A most grievious situation has recently come to my attention, through an article on slashdot.org. The situation, as it has been related to me, is that the Pink Paper has engaged in a most disreputable and plainly assinine attempt to have outcast effectively shutdown by filing a preemptive complaint.

The absurdity of the situation boggles my mind in all directions. To the ISP who was hosting outcast, shame on you. I know you're simply making a business of providing web access and it's 'cheaper and easier' to do it this way, but the proper response to the Pink Paper request was to, after research to determine if any wrong-doing had occured or was likely to occur, send a reply to their lawyers politely stating that they are abusing laws, and that they can bugger off until they have a leg to stand on.

To the Pink Paper. I'm appalled, astounded and just... confused. What's wrong with competition? What did they do to hurt you? What reasonable justification is there for this action other than a lawyer noting in the middle of a business meeting 'i know how to get their website shut down.' I hope that this is a case of a lawyer acting without proper authority, or of a manager who acted against the will of the company as a whole. If this is the type of action which you propose is appropriate for them, perhaps you should stop claiming to be a voice for the gay community as your actions demonstrate that you don't believe in equal rights, fairness or good faith, even within the gay community.

To the parties who believe that the law is being used in it's proper sense, allow me to state that abuses like this can end in only one inevitable conclusion. Websites will no longer exist in Britain. If you believe that this law makes sense, and that it's being used reasonably, then allow me to note that the sun now sets on the British Empire. When a situation is made rediculous, a solution is always found. Perhaps the most logical solution is to decide that no websites should be hosted in Britain as they might be subject to costly, illogical and frivolous abuse.

Good luck, outcast magazine,
Good luck, Britain,

----------------------------

Too easy, but sorta fun.

So, we write the hosting company that hosts NetBenefit. We write them asking them to provide assurances that NetBenefit will not be making any offensive statements, or false accusations, about OutCast.

So, when NetBenefit's site is pulled, we laugh at them. Because it's their own policy, and they can hardly argue with it.

I'm sorry but...

A few points here.

The term "Censorship" is over-used these days, especially in Slashdot type forums. Censorship is something that governments do. NetBenefit is not censoring. They are execising their right to choose their customers as they see fit.

Yes, the ISP libel liability law and the Demon precedent suck very, very much. But you can't blame NetBenefit for that. Write to your MP.

I'll say it again just to be sure. I believe that a private entity has the right to do or not do business with whomsoever it sees fit. (For the record, I'm against all anti-discrimination laws and equal opportunity laws too.)

The correct response is for people who disagree with NetBenefit's position to simply not do business with them. Don't waste your time whining to the CEO, write to their other customers. If I were a NetBenefit customer I sure wouldn't be for long. Let the market punish them!

The only case Outcast have is if they had a contract with NetBenefit which has been breached. I seriously doubt it though.

It all seems to be coming apart

Australia has our net censor laws, requiring ISPs to block sites officially listed as offensive, the US has the current idioticy regarding DMCA, deCSS, etc, and now the UK is diving in with the most oppressive crytpo privacy laws imaginable and then this!

I know the law makers and Those Who Consider Themselves Very Important are worried about this new medium called the internet (God Bless Quale for inventing it!), but there seems to be a global over reaction.

I'm still waiting for one country to trade in their Get a Free Clue card, and actually ask those of us involved in it for ideas on how to make it work - how to balance legal requirements for privacy and accountability with freedom to express.

I wish the Outcast crew all the best. Let's hope they don't have to visit the last resort for such situations - moving their servers off shore.

Re:The Connection

3) The courts find for Godfrey. Demon pay up damages. From now on any British ISP is, by legal precedent, responsible for any slanderous content that it makes available, included hosted sites and newsgroups. This is what has prompted NetBenefit's actions - they're covering their arses.

Not quite true, the court did not find for Godfrey, Demon elected to settle, this doesn't set a precedent in English Law (a judge has to rule for a precedent to be set) but it does place a worry for ISPs. Lets face it who wants to risk being the one setting a precedent ?

Re:Raising a ruckus...

A bad decision in the Daemon UK case, (IIRC a basically bigmouthed person successfully sued the ISP for not removing some inflammatory information about him)

Actually, there was no decision. Demon decided to settle the case before it got to court. No legal precedant has been set here by any means, and you should not try to compare these two totally independant cases.

There will always be locations

then there will be no overseas locations available

I'd contest this statement - until the advent of a truly "global" government there will always be countries where these laws won't apply. Consider copyright laws - both Malta and Taiwan don't have them, even though there is enormous pressure from the rest of the world that does for them to adopt copyright. Until copyright is universal there will always be somewhere you can go to get around it.

Similarly, there will always be at least one country without these censorship laws - consider the Cayman Islands or Antigua, where practically all online gambling sites are hosted due to the lax laws there. Its a matter of supply and demand - if the demand for hosting without the restrictions of censorship laws exists, then there will be somewhere which will supply that service, and make a lot of money out of it.

And then there's offshore hosting at sea, which could become a viable option given the increasingly restrictive nature of laws in most countries.

Re:I'm sorry but...

I'll say it again just to be sure. I believe that a private entity has the right to do or not do business with whomsoever it sees fit. (For the record, I'm against all anti-discrimination laws and equal opportunity laws too.)

Agin for the record, I'm oppsosed to most anti-discrimination and equal opportunity laws, but I'm certainly not opposed to anti-discrimination and equal opportunity.

Unfortunately the right to choose whom I do business with is too often a cover up for discrimination and bigottery. The market does not punish those who discriminate according to popular prejudice. How many stores in southern USA was "punished by the market" for their "No niggers" policy?

I know that the real issue is that dangerous precedent, not this ISP who is acting accordingly.
However there is a worrying trend of censorship throug proxy. The government can not censor since there are strong feelings about state censorship. Instead they make ISP liable for content, and the censorship is carried though "volontarily"

I'm worried

The Connection

There's a very strong connection. The sequence of events goes like this:

1) Lawrence Godfrey sees something allegedly defamatory about him posted on a newsgroup.

2) Demon Internet, a major British ISP, gets sued by Godfrey for libel, claiming that by hosting the newsgroup, they are liable.

3) The courts find for Godfrey. Demon pay up damages. From now on any British ISP is, by legal precedent, responsible for any slanderous content that it makes available, included hosted sites and newsgroups. This is what has prompted NetBenefit's actions - they're covering their arses.

4) Obviously, this is a bad thing. CACIB post something on their site saying so.

5) Godfrey, who by now is sending legal letters to anyone who mentions him on the net in any remotely negative tone, threatens CACIB with legal action unless they take the story down.

It's not just Demon and CACIB he's done this to, either. Certain other very vocal activists and commentators have been unusually silent on the matter, mainly because when they've mentioned him in the past he's been onto them within hours. Now he has the law on his side.

(Why do you think I'm posting this anonymously? I'm in America at the moment, for God's sake, but I'm coming home this week and I'd like to think I won't get served a writ when I step off the plane.)

What's obviously needed here is some kind of mass stand against this, because it's obviously threatening not just free speech (after all, we don't have a constitution that protects free speech anyway - but please don't gloat at us about it, Americans, because we're sick of that) but the freedom to contribute anything to the net at all. The Outcast case is a perfect illustration of the ridiculous extremes to which this can be taken, and there will be more, and worse.

A mass stand - a huge, COORDINATED, unstoppable outcry across the network, too large to be stopped by a few lawyer's letters, too prevalent. Simply because this may be the last time that we can.

-- Anonymous

P.S. If you're an American who's about to post your nth reply to a Slashdot story about bad net law in Britain by banging on about what a backwards so-called democracy we are because we don't have legal power to buy submachine guns on street corners and so obviously we must all be serfs toiling under a Monarchist hegemony, why not use the time constructively instead, by trying to come up with a solution to the problem posed above? Mass coordination and publication, anonymous, untraceable, unremovable. It's a fantastic techie problem. Freenet is the start. Where's the rest?

Another domino falls, apparently

I checked the Campaign Against Censorship of the Internet in Britain [liberty.org.uk] link referenced in the story and guess what I found there:

Site suspended

It may seem laughable that a site campaigning against censorship has been censored itself, but that is exactly what has just happened. We are making arrangements for the site to be mirrored offshore, where there is a bit more protection for freedom of speech. Don't worry, even the address online won't change, it'll just be based on web servers physically outside the UK. You won't be able to tell the difference.

Naturally, we are not caving in to the threatening insinuations that have been levelled against us. Check back here tomorrow for the full story.

Yikes. What the hell goes on in Britain? Does anyone know whether there's a connection to this story?