🚀 go-pugleaf

On Aug 21, 4:00 pm, "Theo_Deli...@yahoo.co.uk"
<Theo_Deli...@yahoo.co.uk> wrote:

> I really am most grateful for that, as I had no idea that any ofLaurence'scelebrated aphorisms had been
> preserved for future generations to enjoy.

I do hope that I, as the plaintiff in both actions, may be able to
shed some light on the foregoing discussions about Godfrey v. Demon (I
and II).

I have seen over the years several misrepresentations of the second of
the two interlocutory judgments of Mr Justice Morland in the Demon
action, in which the subject of that case was a forged message
published via the internet purportedly written by me but in fact
written by someone else. Having struck out the very core of Demon's
defence in his first judgment, Morland J considered a further
application by the Defendant (Demon) to amend its defence to include a
large number of extracts from other internet postings that the
Defendant sought to claim were my words. I emphasise that the
Defendant merely alleged that these words were mine. The learned judge
himself also makes this perfectly clear in his judgment by listing all
the material in question under the headings "postings allegedly made
by the Plaintiff ..."

Those words that the learned judge described as being provocative were
words merely alleged by the Defendant to have been posted by me. At
that time I had had no opportunity to admit or deny these allegations,
since they were made by way of proposed amendments to the defence.
However, in the event these allegations were not proven and at the
conclusion of the case an agreed statement was made in open court in
which it was stated (inter alia): "Demon is also here today ... to
apologise to Dr Godfrey for not removing the postings from its servers
and for alleging in his defence that Dr Godfrey had deliberately
provoked them, a contention which it now withdraws".

I commented on the record at the time: "I am very glad that Demon have
finally apologised for and withdrawn the misconceived claim that I
provoked the libellous postings. The provocation allegation was
nothing but a costly red herring. Some of the statements attributed to
me, including the very words which were alleged to have provoked the
first libel, were not mine at all."

If it helps, I have included below a summary that I wrote with the
help of my lawyers at the time of the settlement. Also attached is a
copy of the statement made in open court.

Laurence Godfrey


DEMON ADMITS DEFEAT IN INTERNET LIBEL ACTIONS - 30 March 2000

In a dramatic last-minute collapse, it was announced today that Demon
Internet Limited have agreed to pay Laurence Godfrey a sum estimated
to be a quarter of a million pounds in costs and damages in two libel
actions brought by Dr. Godfrey. Demon are also liable for their own
legal costs estimated at several hundred thousand pounds.
The trial of the first of the two actions was due to begin on Monday
3rd April. The case would have been the first major contested Internet
libel trial to come to the High Court in England.

In a ruling last year, Mr Justice Morland held in effect that ISPs
could not ignore requests for removal by the victims of defamatory
Usenet postings.  Despite this, Demon continued to fight these cases
virtually to the door of the court.
Demon, an Internet service provider now owned by Thus plc.(formerly
Scottish Telecom), provide its customers with access to Usenet
newsgroups via its news servers. Dr. Godfrey, an English physicist,
brought the first of these two cases over a 1997 Usenet message which
was forged so as to appear to have been written by him. The second
case was concerned with a libellous message posted by one of Demon's
own customers in 1998.

In an agreed statement made in the High Court today, Demon apologised
to Dr. Godfrey for not removing the defamatory postings from its news
servers. Demon also apologised to Dr. Godfrey for the injury and
distress they had caused him. Demon further apologised for wrongly
alleging in its defence that Dr. Godfrey had deliberately provoked the
libellous postings. Demon consented to a court order by which it is to
pay Dr. Godfrey £15,000 damages and his legal costs in both libel
actions (estimated at £230,000).

Dr. Godfrey said after today's announcement: "I am delighted with the
result. It is sad that it has taken more than 3 years of sustained
effort to redress a wrong that could so easily have been avoided by
Demon and to extract an apology from them."

Nick Braithwaite, Dr Godfrey's solicitor said:  "This was a David and
Goliath case which Goliath could never hope to win. It has established
a firm precedent that ISPs can be publishers in English libel law, and
the scale of damages extracted demonstrates the capacity of the
Internet to blight a person's reputation."

The cost to Demon of defending both actions is likely to be in the
region of half a million pounds most of it in the first action. There
never was any realistic defence to either action and, as Demon confirm
in today's statement, they have never sought to suggest that there was
any truth in either of the libels. Dr Godfrey said today: "If Demon
had taken the simple steps that I had asked of them at the outset,
this monumental waste of money could have been avoided. Demon have
established a precedent which they claim has adversely affected the
ISP industry. All that they have to show for their efforts is a bill
for about half a million pounds, defeat at the hands of a physicist
with limited resources and a large dose of humble pie."

Concerning Demon's claim that Dr Godfrey provoked the libellous
postings in question, Dr. Godfrey commented: "I am very glad that
Demon have finally apologised for and withdrawn the misconceived claim
that I provoked the libellous postings. The provocation allegation was
nothing but a costly red herring. Some of the statements attributed to
me, including the very words which were alleged to have provoked the
first libel, were not mine at all."
Finally Dr. Godfrey commented: "While I started these actions on my
own, I owe my success to the dedication and skill of my legal
advisers; to my wife and friends who have supported me throughout; and
to the kindness and generosity of those who agreed to be witnesses. I
am glad to have been vindicated in bringing these actions and in my
reputation."


BACKGROUND

In relation to the first libel action, Dr. Godfrey sent several faxes
to Demon asking them to remove the forged posting from their news
servers, but although the faxes were received by Demon they did not
remove the posting. Shortly afterwards, a letter sent by Dr. Godfrey's
solicitor was also unanswered. Said Dr. Godfrey: "I came to discover,
as a result of my researches of comments made in newsgroup postings
and elsewhere by Demon's staff, that I had been a victim of Demon's
policy of not removing defamatory material from its news servers in
response to complaints".

When, more than two years later, a news article in ZDNet News (Fri, 11
Jun 1999, by Jane Wakefield) reported: "David Furniss, Demon's
managing director ... concedes there 'may have been a possibility of
an administrative error on our part that caused a delay in the
postings being removed'", Dr. Godfrey was surprised at this, having by
then also found several examples of Demon's failure to respond to
complaints about defamatory postings by other people.

In a later article in ZDNet News (Fri, 9 Jul 1999), Jane Wakefield
wrote: "..managing director David Furniss' comments on ZDNet News that
the defamatory postings in the Godfrey case may have remained on its
server due to an "administrative error". The ISP's defence was turning
to debacle...".  Dr. Godfrey commented: On the one hand, defamatory
postings were not removed by Demon as a matter of policy, but in my
case apparently three faxes and a letter were ignored as the result of
'administrative error'".

When Dr. Godfrey, who at the start of his first action was acting in
person, issued libel proceedings a year after Demon failed to remove
the defamatory posting, Demon vigorously defended the action. While
Dr. Godfrey had made it clear that he only sought small damages, Demon
continued to pour money into defending the first action even as their
prospects of success dwindled.

Demon initially pleaded in the first action that it was not a
publisher; that its role in publication was passive; that it had no
duty to remove a defamatory posting from its news servers once
notified; and that it had a defence under section 1 of the Defamation
Act 1996. (Section 1 of the Defamation Act 1996 gives ISPs and others
a defence where they were not at fault in disseminating a libellous
article).

In March 1999, a court ruling showed that all these assertions were
entirely wrong. Dr. Godfrey, by then represented by Nick Braithwaite
of solicitors Bindman and Partners and libel barrister Mr. Justin
Rushbrooke, succeeded in striking out the relevant portions of Demon's
defence. In a landmark judgment in the High Court on 26 March 1999,
Mr. Justice Morland ruled that Demon were publishers at common law and
that Demon's defence under s.1 of the Defamation Act 1996 was "in law
hopeless".

In the course of that hearing, Demon's counsel Mr. Manuel Barca went
to some lengths to distinguish for the judge between the way Demon
treated defamatory postings originating from its own customers and
those which originated from elsewhere (as in the first action):

"The originator of the message [in the first action] is not a customer
or user of [a Demon] account...."

"Demon accepts responsibility for what its customers do and even...for
what people who are not necessarily its customers but are using its
customers' accounts are doing"

"..anyone using Demon to gain access to the Internet, Demon accepts
that it has a controlling responsibility for."

Yet, the second action (the writ for which had not at that time been
issued) was in respect of a defamatory posting by a Demon customer
which appeared just 7 months beforehand. Despite Mr. Barca's
submissions to the contrary, in that case (just as in the first case)
Dr. Godfrey's requests to Demon to remove the defamatory posting were
not complied with.
Immediately after the March 1999 judgment, Demon issued a press
release saying that it would appeal the decision of Mr. Justice
Morland in the interests of freedom of expression on the Internet. It
continued to maintain this posture until, finally, the time to appeal
expired in June 1999. Even after it was out of time, Demon insisted
that it could still appeal: "David Furniss, Demon's managing
director...told ZDNet [on 10 June 1999] ..that Demon may still go
ahead with the appeal." (11 Jun 1999, ZDNet News, by Jane Wakefield).
Demon never did lodge an appeal.

Once the core of Demon's defence had been struck out in the first
case, there appeared to be  no reasonable prospect of Demon winning.
Despite this, Demon sought and obtained leave to amend their defence
in the first action (which they later adopted in the second action) so
as to allege that Dr. Godfrey had deliberately provoked the defamatory
posting.
Today, almost a year later, Demon have finally acknowledged that these
allegations were wrong: "Demon is here today ... to apologise to Dr.
Godfrey for not removing the postings from its servers and for
alleging in its defence that Dr. Godfrey had deliberately provoked
them, a contention which it now withdraws".

As a result of Demon's amendment, Dr. Godfrey was forced to obtain
statements from a large number of witnesses in England and abroad and
a huge number of documents. The amendment, which never had any real
prospect of success, greatly increased the costs of both parties:
costs for which Demon are now almost wholly liable.

Demon's provocation amendment did nothing to advance its case, because
it could not demonstrate any connection between Dr. Godfrey's
statements and the libels in either of the actions. However, the
amended pleading did cause further damage to Dr. Godfrey's reputation,
particularly as Demon issued a press release that encouraged readers
to view the second judgment of Mr. Justice Morland, which contained
words wrongly attributed to Dr. Godfrey, by means of a sensational and
misleading warning that the judgement contained "adult-oriented
material that some people may find offensive". In a further press
release dated 11th June 1999 Demon incorrectly implied that Mr.
Justice Morland had found as a fact that Dr Godfrey's conduct was
provocative.

With still no prospect of winning the first action (the second not
having yet been issued), Demon said: "We have in no way changed our
stance, and are extremely confident of winning the case against Dr
Laurence Godfrey" (11 June 1999).
While wrongly alleging provocation and boasting about its prospects of
success, Demon described Dr. Godfrey's claim in the first action as
"scurrilous", "unsubstantiated" and "unjustified", and asserted that
he was threatening the "entire ethos of freedom of speech on the
Internet". In particular, Demon claimed to be champions of free
speech: "Demon Internet continues its campaign in the interests of
Internet users to ensure freedom of speech. It has not conceded in the
court case brought by Laurence Godfrey and is committed to fight this
and any such action".

In June 1999 Dr. Godfrey discovered that, far from being champions of
Internet free speech, Demon had itself successfully sued for libel
over Usenet postings in 1996 (17 months before Dr. Godfrey issued his
first action). The author, a former Demon employee, was served with a
writ issued after he had publicly apologised for his comments. Demon
and Mr. Stanford (the co-plaintiff and former managing director of
Demon) obtained a default judgment for libel and an injunction against
the author.

Also in June 1999, copies of letters containing Dr. Godfrey's home
address and telephone number were sent by Demon to several of their
customers who had had their Usenet posting access barred by Demon
because they had posted links to a copy of the libellous posting in
the first action. As a result of Demon's letters, within hours Dr.
Godfrey's personal details were re-published in various places on
Usenet and the web and the safety of Dr. Godfrey's wife and child, as
well as his own safety, was compromised. At the same time, Demon sent
to those customers a copy of the libellous posting in the first
action, despite Mr. Justice Morland having only recently agreed to Dr.
Godfrey's request to omit the libellous words from his second
judgement in order to avoid their unnecessary dissemination.

When, in June 1999, Dr Godfrey made a formal offer to accept damages
of £2,500 in the first case, Demon rejected the offer and announced a
few days after the offer was made: "Demon Internet continues to fight
the case, and is confident of winning it" (5 July 1999). Dr. Godfrey
then instructed a leading libel barrister, Mr. Gordon Bishop, to
present his case at the trial .

Until 3 weeks ago, Demon took the position that Dr. Godfrey was not
entitled to any damages at all. Again, Demon were entirely wrong. Of
the £15,000 damages now to be paid to Dr. Godfrey, £5,000 is damages
in the first action. Since rejecting Dr. Godfrey's offer of £2,500,
Demon have succeeded in doubling their damages bill in that action at
a price of several hundred thousand pounds of additional costs
(incurred by both parties) in the 8 months leading to trial.

In the second action, in which Dr. Godfrey was in person throughout,
the defamatory posting originated from a Demon news server and was
made by a Demon customer whose postings had previously been the
subject of numerous complaints to Demon, from persons other than Dr
Godfrey. In this case Dr. Godfrey claimed that Demon had failed to
take reasonable care in respect of that customer and were therefore
liable for publication from the outset (rather than once notified, as
in the first case) and therefore also for publication to persons in
England and Wales and elsewhere (rather than just readers of Demon's
news servers as in the first case). Three weeks ago Demon made an
offer to settle this action by paying the sum of £5 into court in
respect of Dr. Godfrey's damages, which was not accepted. Today's
settlement included a sum of £10,000 for damages in the second
action,

Despite briefing a leading libel QC and making an eleventh hour
application, served only hours before the hearing, to bring forward
the trial of the second action by about 8 months, in the end Demon was
unable to break Dr. Godfrey's resolve and appears to have had no
choice but to settle both actions, agreeing to pay damages and Dr.
Godfrey's costs and to a statement being made in open court.

Demon confirm that they have now changed their procedures for dealing
with libellous messages. They insist that the law needed clarifying
and indeed Dr. Godfrey's actions have done just that. However, the law
has been clarified to be exactly as Dr. Godfrey understood it to be at
the outset and exactly as his legal advisers advised him.


STATEMENT IN OPEN COURT (30 March 2000)

Counsel for the Claimant (Gordon Bishop)

My Lord, in this action for libel I appear on behalf of the Claimant,
Dr Laurence Godfrey.  The Defendant, Demon Internet Limited, is
represented by my learned friend Mr Daniel Gosland.

Dr Godfrey is a physicist who has lectured in physics, mathematics and
computer science and conducted research in nuclear physics at various
academic institutions throughout the world.

Demon is an Internet Service Provider, now owned by Thus plc.  At the
beginning of 1997 Demon  was the largest English ISP having some
90,000 subscribers.  One of the Internet services it provides is
access via its news servers to Usenet newsgroups.  One of those
newsgroups is called "soc.culture.thai", a discussion group for those
interested in the political and social affairs of Thailand.

On 12 January 1997 a posting appeared on the soc.culture.thai
newsgroup, as carried by the Demon news servers, which purported to
have been made by Dr Godfrey, but was in fact a forgery.  It was
squalid, obscene and defamatory of Dr Godfrey.  Not surprisingly he
took strong exception to it and made strenuous efforts to have it
removed, including sending several faxes to Demon asking them to
remove it from their news servers.  Regrettably Demon did nothing
about the posting with the result that it remained on Demon's news
servers until its expiry on about 27 January 1997. A letter of
complaint sent a few days later by Dr Godfrey's solicitor was also
unanswered.  Consequently, Dr Godfrey commenced proceedings against
Demon.

In July of the following year another posting, this time originating
from one of Demon's own customers, made further defamatory allegations
about Dr Godfrey. That posting appeared in the uk.legal newsgroup,
which has a much wider readership in this country than
soc.culture.thai. Once again, Dr Godfrey's requests for removal were
not complied with by Demon and he felt compelled to bring a second
action in respect of that posting.

My Lord, Demon has never sought to suggest that there was any truth in
either of these libels but contended that it was not responsible or
liable for their publication and was not under any duty to remove them
from its news servers. The legal position has now been clarified
during the course of this case, and this has resulted in Demon and its
new owners changing their procedures.

Demon has now agreed to pay Dr Godfrey damages together with his legal
costs in  respect of  both actions and  Dr Godfrey is satisfied that
this payment will afford proper recompense for the injury and distress
that he has suffered. Demon is also here today by its solicitor to
apologise to Dr Godfrey for not removing the postings from its servers
and for alleging in its defence that Dr Godfrey had deliberately
provoked them, a contention which it now withdraws.  In those
circumstances Dr Godfrey is content to take matters no further and I
am happy to inform your Lordship that the parties have resolved all
their differences.


Solicitor for the Defendant (Mr Daniel Gosland)

My Lord, on behalf of the Defendant I accept all that my learned
friend has said.  Demon regrets that it did not remove the postings
when it was notified of their defamatory content by Dr Godfrey and is
happy to take this opportunity to apologise to him for the injury and
distress he has been caused.

Counsel for the Claimant

My Lord, all that remains is for me to ask for permission to withdraw
the record.