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Hulbert’s Case, the Lord Chancellor and Censorship of the Internet

A Statement by Cyber-Rights & Cyber-Liberties (UK)

November 1999

Pages Updated on 15 November, 1999

Background Information on Hulbert’s Case

On 07 November, 1999, the Independent published a story entitled "Irvine closes down ‘anti-judge’ website," in which it was stated that "the Lord Chancellor, Lord Irvine of Lairg, has shut down a web site because it was being used to criticise judges."

The page that the Lord Chancellor thought to be offensive involves a series of open letters to the Lord Chancellor made by a certain James Hulbert, 67, from Hull, who has "identified five judges who had presided over a series of cases in which Mr Hulbert claims he was denied justice."

Mr Hulbert used Kingston Internet Limited (http://www.kingston-internet.net/) as his Internet Service Provider (with offices in Hull, Leeds and London) to set up his web pages including the above referred statements.

Last week the Lord Chancellor’s department wrote to Kingston Internet Limited describing the statements provided by Mr. Hulbert as "offensive" and asked the company to remove the content that the Lord Chancellor found as "offensive." According to the Independent article, a spokesman for the Lord Chancellor’s Department confirmed that the department had written to the service provider alerting the company to the "offensive" material. (So far we did not see a copy of Lord Chancellor’s letter).

The following message was sent by the Kingston Internet Limited Webmaster to Mr. Hulbert on Monday November 01, 1999 with the subject line - Deletion of Webspace.

==============================================================

Mr Hubert,

It has been brought to our attention by the Lord Chancellor's Department (http://www.open.gov.uk/lcd/lcdhome.htm) that your web site is causing offence. This is in violation of Clause 6.2 of our Terms and Conditions, namely:

"You must not use or allow the Service or your web space to be used for storing, sending or receiving any material which is obscene, menacing, threatening, offensive, abusive, indecent, defamatory, fraudulent, criminal or which infringes the rights of any other party including any intellectual property rights."

As a result we are invoking clause 6.4 of our Terms and Conditions, namely: "We reserve the right to suspend part or all of the Service if You are in breach of any of the term of this Agreement."

Your webspace has thus been disabled with immediate effect.

Kingston Internet Webmaster

The Kingston Internet Terms and Conditions can be found online at http://www.kingston-internet.net/tsandcs.html

==============================================================

Therefore, Kingston Internet Webmaster closed down Mr. Hulbert’s website. But according to the Independent article, "Mr Hulbert said he was merely asserting his right of self-expression following what he describes as his outrageous treatment at the hands of the courts and the police."


Mirror Copies Spawned

As ever, mirror copies of these "offensive pages" are now available elsewhere over the Internet. This is the public response by individual Internet users to fight censorship and we have already witnessed similar examples in the case of JET Report and mirror copies were crucial in that case to stop the threats of a local government body to suppress the publication of a previously not available report.

Therefore, if you want to read what Mr. Hulbert wrote to offend the Lord Chancellor, than visit the following web sites:

Website site "removed" at the request of the Lord Chancellor at http://www.markgold.freeserve.co.uk/censorship/

UK Censors at Work at http://www.openpgp.net/censorship.html

Another mirror of Mr. Hulbert's Web pages is provided at http://zat.freehosting.net/

The mirror copies started to appear following an initial message by Jim Hulbert <hulbert@zat.karoo.co.uk> on 05 November, 1999 with a subject line - Take Notice which was posted to the newsgroup alt.uk.law.

"Because if you are a UK. citizen it could happen to you. My web site at <www.karoo.co.uk> has been unlawfully shut down by my ISP upon instructions from those I expose: the Lord Chancellor's Department contrary to European Law: Freedom of Expression. The right course of action should have been to take me to Court if anything that I have published is anything but the truth, but the Department have dipped into its bag of dirty tricks to gag me. I now rely on the independence of a USA. provider of web space and I understand that the USA has freedom of speech built into its constitution. Can those conspirator's within our Lord Chancellor's department influence their American counterparts to shut down my alternative site at: <http://zat.freehosting.net> What has made the Department act in such a blatantly unlawful manner? Visit the free hosting site to find out: no strings attached. Jim Hulbert.

The above message can be seen through Deja.com at http://www.deja.com/[LBURL=_LBHTwww.openpgp.net_LBFS,LBT=Take%20Notice]/threadmsg_ct.xp?AN=544763569


Cyber-Rights & Cyber-Liberties (UK) Position

Without taking a stand on Mr, Hulbert’s statements, Cyber-Rights & Cyber-Liberties (UK) issues the following statement:

We believe that the Lord Chancellor, or whoever considers these statements to be offensive or defamatory, should complain to the original publisher of these statements - in this case Mr. Hulbert, rather than the Internet Service Provider, Kingston Internet Limited. If necessary those who are offended should take legal action - but against the original publisher of the statements and not against the ISPs.

We object to individuals or companies putting pressure on Internet Service Providers with legal threats for the removal of Internet content from their customers’ web sites. Furthermore, we strongly object to such pressures being applied by public and political figures (in this case the Lord Chancellor) in matters regarding political speech and public criticism of those who hold public positions.

We also object to the position taken by the Internet Service Provider, Kingston Internet Limited, in a case where the preservation of political speech and public criticism of public officials is in dispute. A letter sent by the Lord Chancellor who found the pages in question to be offensive is not a satisfactory ground for taking down a customer’s web site regardless of the references to the Terms and Conditions of the ISP in question. It amounts simply to a "licence to censor" which is unacceptable in matters involving the preservation of political speech.

Nevertheless, the current legal situation does not protect the ISPs from libel suits for not taking down Internet content and they can be held liable for defamation under section 1 of the 1996 Defamation Act. Such an action was recently taken against Demon Internet in the High Court case of Laurence Godfrey v Demon Internet (March 1999, see http://www.courtservice.gov.uk/godfrey2.htm). Holding an ISP responsible for content published by third parties or by the customers of ISPs has serious implications for the preservation of freedom of expression over the Internet. This is censorship by the back door and needs to be strenuously resisted.

We remind the Lord Chancellor’s Department that decisions of the House of Lords in the cases of Derbyshire County Council v. Times Newspaper [1993] AC 534 and Reynolds v Times Newspapers (28 October, 1999 at http://www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd991028/rey01.htm) moved from concerns for the private reputations of others towards interests of democracy and truth, which is consistent with free speech theories and with article 10 of the European Convention on Human Rights and Human Rights Act 1998.

Furthermore, the European Court of Human Rights in Lingens v. Austria (1986) 8 E.H.R. 407, stated that: (at 419, para. 42):

"The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt article 10(2) enables the reputation of others--that is to say, of all individuals--to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues."

We, therefore, call for the Lord Chancellor’s Department to review the current state of the Defamation Act 1996 as far as section 1 is concerned and we call the Government to review the position of the ISPs as far as defamation laws are concerned rather than applying pressure to suppress freedom of expression, and the rights of individual citizens to criticise those that hold public positions.


Please note that the legal position in relation to public officials and the law of defamation in various countries were summarised in the judgment of the House of Lord in Reynolds v Times Newspapers (28 October, 1999). This summary is re-produced here.


Press Coverage

Wired News, "Censorship Furor on Brit Site," 13 November, 1999, at http://www.wired.com/news/politics/0,1283,32520,00.html

The article quotes a spokesperson for the LCD and a spokesperson for the Kingston Limited, the ISP who took down Mr. Hulbert's pages. According to the Wired article, Peter Farr, a spokesperson for the Lord Chancellor’s Department, would not say why Hulbert was not approached directly. "We believe [going to Kingston Internet] was the most appropriate action as Kingston is an objective third party and [they] are assessing the site according to their own criteria," Farr said. He also denied that approaching Kingston was the speediest way of getting the site pulled and that any government pressure was exerted. "I would hope Kingston does not feel they were pressured," Farr said. "It was a request and not an instruction."

Kingston Internet confirmed it was not coerced. However, the ISP’s marketing manager, Kay Stevenson, said she did not believe it was fair to hold ISPs accountable.

"It’s a sticky situation," she said, pointing out that Kingston, which has 7,500 customers, was simply heeding the outcome of an earlier case. "We would have felt much more relaxed if Demon hadn’t happened," Stevenson said, referring to the March 1999 case between Demon Internet, one of the UK’s oldest ISPs, and Laurence Godfrey.

ZDNet UK News, "Lord Chancellor shuts down Web site," 13 November, 1999, at http://www.zdnet.co.uk/news/1999/45/ns-11409.html

Neither the Lord Chancellors department nor Kingston Internet were available to comment at press time of this article but the artixcle includes a comment by Laurence Godfrey who is pleased to see an ISP acting on the ruling made in his fight with Demon Internet. "I haven't read the content in this case but I am glad to note that, as a result of the precedent made in the ruling in my case against Demon, some ISPs are behaving responsibly in acting to remove offensive material," he said.

Silicon.Com News, "Lord Chancellor denies Web site censorship," 9 November, 1999, available through http://www.silicon.com

This is an earlier article in which the Lord Chancellor's office has refuted suggestions that it demanded the closure of a Web site set up to criticise five judges.

The ISP said in a statement: "The Lord Chancellor's department did not order the closure of the Web site, but drew our attention to it. After reviewing the material we decided to apply our conditions of Internet service and believe the action we took was correct."


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