Devil: My job is to ensure standards of television programmes continue to spiral downwards. Chat-shows, game-shows, soap-operas — anything I can do to guarantee their continual awfulness.
Condemned Soul: What was that?
Devil: Just commissioned another 25 years of Jim’ll Fix It.
Condemned Soul: Oh, good. I like Jimmy Saville – he’s very good with children.
TV Hell introduction, 31st August 1992
The significance of the above will become clear in due course. But first, let me take you on a journey, which began one Friday evening when the very site you are reading, ceased to exist. Permission denied, it said. This being my own site, it seemed a little strange, to say the least. But logging in, I found the following email had been sent to postmaster:
Date: Thu, 28 Sep 2000
Please note: The contents of this email may be legally privileged. They should not be copied or disseminated within or outside Thus Plc without prior authorisation from Legal Services. The recipient of this email may reply to Legal Services but should not cc other addressees.
We have received an allegation that you have material on your website
which our external solicitors believe to bear defamatory meaning and as such we have had to suspend access to your webpages.
The part in question is the transcript.
We cannot and do not make any judgement as to whether such material is defensible. However, the state of the law at the moment means that if we are put on notice that defamatory material is being published through our systems, Thus plc may be liable for damages, along with you, if it does not take action to prevent that material being published. Those damages could be substantial and we could both incur heavy legal expenses.
In addition, the current state of the law could leave Thus plc liable if it failed to take action and you disseminated any further material through our systems which was later found to be defamatory. While we do not necessarily agree with the current legal position we must accept it, and have therefore suspended access to your website.
Please reply to this email acknowledging that you understand the problem, that you have removed the material from your website and that you will not, in future, publish further material which could be considered defamatory of various (named) celebrities through Demon’s systems.
We attach below a suggested form of acknowledgement for your convenience.
ACKNOWLEDGEMENT OF RECEIPT
I acknowledge receipt of your email and confirm that I understand your explanation of the legal situation regarding material which is considered defamatory.
I confirm that I have removed the material from my website. I will not publish such material in future using my Demon service, and will not publish further material which could be considered defamatory of the celebrities which have been named on the site.
I look forward to hearing from you.
The piece in question was a transcript of alleged outtakes from an edition of Have I Got News For You featuring Paul Merton and Jimmy Saville. This had been sent to me by a friend, and I’d posted it on the site, simply because I’d thought it was funny. I even added a disclaimer saying that I had no idea whether it was accurate, but this was no defence in the eyes of Demon.
To get my web-site restored, I removed the piece, and sent the form they requested back, and in due course, www.trshcity.demon.co.uk returned to service. However, I remained a more than a little peeved that Demon would pull the site and, in effect, pronounce me guilty, not only until proven innocent, but without even giving me any chance to prove my innocence. I wrote, pointing this out. Their reply follows.
Currently the situation regarding defamation in the UK is such that ISPs are liable for content held on its servers as soon as it is put on notice of such content and failure to remove that material could end up with us being sued as well as you.
As an ISP, the Defamation Act requires us to act responsibly by (a) removing the material from our servers and (b) making sure that similar material cannot not be published in the future. This requires us, in your case (having received a complaint), to notify you of this situation and seek some kind of acknowledgement regarding future
material, and also to remove the material from our servers, which is achieved by temporarily suspending your web site.
We do not take these decisions lightly and refer all cases to external solicitors (at cost to us) for a decision about whether the material bears a defamatory meaning.
We do not wish to make any judgement as to whether the material in question is indeed defamatory. We are in no position to make this decision ourselves, this is up to a Court to decide.
You may have heard of the Godfrey -v- Demon Internet case where Demon Internet were taken court over defamatory material held on its servers.
We would also like to have more information as to the precise nature of the alleged defamation. It is clearly wrong to claim that every single word in the transcript is defamatory, and without full details of the accusations being made against us, we are unable to accept that they are justified. We thus request details of the specific complaints received by you.
Our solicitors felt that most of the web page could be considered to bear defamatory meaning. Specifically, they felt that it was defamatory of Phil Hall, David Yelland, Jimmy Saville, Paul Merton and possibly Angus Deayton and Ian Hislop too.
With regard to the article, we would still like to publish it, and want to work with you in order to achieve this. We therefore offer the following possibilities for discussion, with the aim of hopefully reaching agreement on the matter.
1) The article already contains a disclaimer which states that we “make absolutely no claims as to the validity of the following”. This could be made more prominent and/or reworded.
I do not believe that this would make any difference if the material was found by a court to be defamatory. You should seek further legal advice regarding this.
2) If we are given details of the parts found offensive, they could be > removed from the piece.
We would suggest that you seek legal advice based on my comments above.
3) We can move the transcript from Demon to another server, and make the link on our site point to it there.
Unfortunately, this could also be considered defamatory as it still causes in effect, the publication of the defamatory material through your Demon service, even if it is hosted elsewhere.
But when looked into further, this seemed very debatable to me. The interconnectedness of the Net means that, if linking to a defamatory site is itself just as defamatory, then any one defamation renders virtually the entire Internet guilty! This is clearly nonsense, and indeed, Section 1(3) of the 1996 Defamation Act states that, “a person shall not be considered the author, editor or publisher of a statement if he is only involved…(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.“
As a result, in the case of Godfrey vs. Demon to which they referred, Justice Morland said “In my judgment the defendants were clearly not the publisher of the posting and incontrovertibly can avail themselves of Section 1(1)(a)”, relieving Demon of liability. As far as I could see, what caused Justice Morland to find against Demon, was their failure to take action after being notified of the alleged defamation. If the material in question hadn’t been held on their servers at all, it was hard to see how Demon could have been found liable for it.
So, while I could conceivably be sued, Demon would be perfectly safe. However, the chances of any suit were, I reckon, very slim: I doubt the people who read the piece here numbered more than a few hundred at most, as opposed to the millions who would find out about it during a court case. Far better just to send out some threatening letters, try and suppress it all quietly, and hope it goes away. In this light, it’s also interesting to note Demon’s unwillingness to tell me who had complained – I have a pretty good idea though, and I doubt very much it was Angus Deayton.
In this case, however, it backfired – their actions fired up my interest in a piece I’d otherwise have quickly forgotten about, and I started looking on the Net. First thing I found was, that if someone had been trying to suppress it, they’d been doing a pretty poor job. My very first search engine query, the very first page, and I was there, staring at the whole thing. Not just once, but five separate copies of it. They used to say that the Internet treats censorship as damage, and routes around it – I was beginning to understand the truth of that statement.
Picking around the sides of these, I did find a couple of interesting sites. One site said responsibility had been claimed by Some of the Corpses are Amusing, but I could find no actual evidence thereof. There was one piece in the Guardian about the transcript, citing un-named “sources” as saying it was a hoax – un-named equals no reliance in my book (the Guardian also had a very interesting interview with Saville). But there was absolutely no trace of, for example, Paul Merton saying, “it’s a hoax”, which would have nailed things shut, once and for all.
All the while, I continued, sporadically, to debate the possibilities with Demon, and work towards an edited version of the transcript. I can feel some sympathy for them, and I have to say they were friendly and polite, explaining the reasons for their qualms. But they were obviously erring strongly on the side of caution and even wanted material removed that was part of the broadcast! We finally came to an agreement, and the edited version may be found here. It’s not very funny though…
It’s hard to come to a compromise when they keep saying “Nyet”: if I’m not allowed to link to it, can I perhaps give people instructions on how they can find it? No, because of Hird v Wood in 1894 – the relevance of that in the Internet era is somewhat arguable. There was something deeply ironic about Demon defending the honour of TV presenters against totally unwarranted accusations of paedophilia, while their servers carried the likes of alt.binaries.pictures.erotica.children.
Almost as interesting as the veracity or otherwise of the transcript, is looking into who would be behind a hoax, if such it actually is. A leading suspect must be Chris Morris, of Brass Eye fame – he announced Saville’s death on his radio show once, and got into a bit of bother for it. I’ve no idea whether the resulting law-suit was ever settled, but it does at least give Morris a motive, and his surreally excessive style of comedy would fit the transcript.
But there are perhaps two other candidates: the people in the sketch at the top of this piece, which I stumbled across in my tape collection only a few months ago. Who were these reprobates, expressing such a clear dislike for Jimmy Saville, seven years before all this allegedly happened? None other than Angus Deayton and Paul Merton…
[Here is the Demon approved, expurgated version]