Respectful Insolence

Le Canard Noir in trouble? I’m there!

Via WhiteCoat Underground, I’ve learned of a most disturbing development.

Remember Le Canard Noir? He’s the skeptical blogger whose Quackometer was one of my favorite websites and tools for identifying pseudoscience and quackery caused him to run afoul of the Society of Homeopaths and a highly dubious practitioner named Joseph Chikelue Obi, both of whom tried to get his Internet service provider to boot him off of its servers using vacuous legal threats of libel actions? Both led to an outcry from the medical and skeptical blogosphere in the form of many, many copies of the offending text being reposted on dozens, if not hundreds, of blogs. Bloggers don’t take well to bogus threats of libel suits being used to stifle free speech.

Now, in a breathtaking display of cowardice, Le Canard Noir‘s ISP, Netcetera, has capitulated to the demands of Obi and is booting him off of its servers with this notice:

Thanks for your comments. We do not wish to be in a position where we could be taken to court, and incur the loss of time and expense that would involve. Consequently Netcetera have decided to suspend the Quackometer website, with reference to our Acceptable Usage Policy, the first part of which is quoted below. The full policy can be found on our website www.netcetera.im/SiteInfo/AUP/

“Acceptable Usage Policy

This policy is subject to change, without alternate notice, so please check regularly for updates. This policy is in addition, and considered part of Netcetera’s Terms and Conditions.
Netcetera will be the sole arbiter as to what constitutes a violation of this provision.
1) Web Hosting
1.1) Netcetera reserves the right to suspend or cancel a customer’s access to any or all services provided by Netcetera, where Netcetera decides that the account has been inappropriately used. Netcetera reserves the right to refuse service and /or access to its servers to anyone.”

We will prevent public access to the site as of noon today 18th February 2008. You will be able to access the content to be able to transfer it to another host if you so wish.

We will hold the content available to you for 30 days, and then we will remove it from our servers.

And so, “Dr.” Obi wins–for now. I don’t know about the U.K. (although the U.K.’s notoriously plaintiff-friendly libel laws are a problem), but in the U.S., such cowardice would be truly bizarre, given that it’s now actually very hard to sue an ISP for defamation because of precedent set by Barrett v. Rosenthal ruling over the Communications Decency Act. ISPs are treated much the same way as telephone companies: as conduits for others to use, which means that they can’t be sued (at least not easily) for what is hosted on their servers. Given even that, ISPs are so risk averse that even the small possibility of a suit will scare them off, and quacks like “Dr.” Obi take full advantage of that. As Le Canard Noir put it:

Exerting pressure on Obi is futile. He is not the story. The story is about ISPs, web hosts and their duty to their clients.

Web Hosting for blogs like mine is not a lucrative business. It is a commodity. Little profit and little incentive for hosts to keep business or do anything rather different. Netcetera took 10 quid off me a month and I ran about half a dozen web sites from them. The profit for hosts is elsewhere – corporate, services etc. But this leaves simple punters like me very vulnerable. The law needs examining. Would WHSMiths be liable if a newspaper printed something libelous. Would a library? Or are they just conduits? Should they inspect every page on their sites? The government appears to think that is reasonable.

All I can say to those of you who support free speech on the Internet and have blogs: Blog it, people! Make Netcetera feel the heat. If you have your Internet connectivity through Netcetera, seriously think about finding another ISP.

Other voices:

  1. Save le canard noir!
  2. Today’s News: Quackometer Silenced. Netcetera Tossers. Obi A Disgrace.
  3. Regrets to inform you that Quackometer.net is dead because Netcetera were stupid
  4. Quackometer blog taken offline – by its cowardly Netcetera host, and spurious legal threats
  5. JREF thread

Comments

  1. #1 UK skeptic
    February 19, 2008

    A little more on “Dr” Obi, for those not in the know, or who can’t face reading the links. Obi came to the UK from Nigeria to work as a junior hospital doctor in the late 90s but was later suspended by his hospital, and subsequently “struck off” the medical register (medical licence permanently revoked by the UK medical licencing board) for gross professional misconduct.

    Subsequent to this he has set up a whole string of bizarre Alt health websites, though precisely how he makes a living out of this is not clear. He was at one stage investigated by the police < a href="http://www.chroniclelive.co.uk/north-east-news/todays-evening-chronicle/tm_objectid=14557214&method=full&siteid=50081&headline=shamed-doctor-probe-name_page.html">on suspicion of fraud in connection with duping a sick lady out of her savings, but he does not seem to have been prosecuted.

    He is an utterly discredited figure, and indeed a transparent conman, which is what makes the whole “lawsuit” idea so laughable.

    Reading Obi’s bizarre ravings on his websites make you wonder how he ever got a medical degree in the first place. Among his other activities he also pursues a sporadic one-man trolling campaign against the General Medical Council, the body that revoked his UK medical licence. For a taste of this, and the style of the man, read his two posts in the British Medical Journal e-Letters here>/a>

    On the wider issue of Net censorship….. Netcetera’s decision truly has me open-mouthed. Let’s hope their craven attitude costs them money, which is no doubt their sole concern.

    A clearer

  2. #2 Chemgeek
    February 19, 2008

    What a crock of sh*t. Why not sue Obi’s ISP for hosting fraudulent content.

  3. #3 robert estrada
    February 19, 2008

    I tried to email netcetera to let them know what I think of them, but their site does not have an email address listed under contact or anywhere I looked. Does any one have an address for their management? It needs to rain on them.
    Robert

  4. #4 rho
    February 19, 2008

    I have to say, I sympathise somewhat with the ISP in this case. The issue at hand isn’t whether they believe they could successfully be sued, but whether they believe that there’s a genuine chance that they could be taken to court. Even if they won the case, it could still wind up costing them a whole lot of time and money, which they would, quite rightly, want to avoid. This is doubly so if they’re not a large company (I don’t know whether they are or not) and may not have a whole lot of resources to spare in the first place.

    Secondly, they have to consider the accounts of all their other users. Even if the threat of legal action is small,, if it could potentially be ruinous to the company, is it worth risking everyone else’s account to save one account? Of course, if the legal threat is obviously vacuous then you don’t bow to it, but what if it isn’t? It isn’t always an easy call to make.

    Without having seen all the communication between Obi and Netcetera, I’m inclined to reserve judgment.

  5. #5 UK skeptic
    February 19, 2008

    The threat IS completely vacuous, rho. That is what makes this such a “test case”. It is not like the previous one of the Quackometer vs. the Society of Homoeopaths which Orac linked to above, where (although Le Canard was right) there was a finite chance the SoH might have taken legal action. In this case it stretches credulity well beyond breaking point to think that Netcetera could have viewed it as a serious threat. Essentially they have sacked the Quackometer for “causing us any static at all”

    If you need convincing, read some of Obi’s sites, like here.

  6. #6 pksp
    February 19, 2008

    This reminds me of youtube caving in to creationists and removing their public domain/fair use content from user accounts on threat of phony copyright/DMCA notices. I don’t blame Netcetera. They may not have the resources to take on a legal fight at this time. Although, if I were them, I would make it clear why they were doing this and be forthright and public about their reasons. I would not have just cut Quackometer off, but would have helped them more in the transition.

    I wonder if scienceblogs.com would take on Quackometer?

  7. #7 Orac
    February 19, 2008

    I have to say, I sympathise somewhat with the ISP in this case. The issue at hand isn’t whether they believe they could successfully be sued, but whether they believe that there’s a genuine chance that they could be taken to court.

    I’m not entirely lacking understanding. The problem is two-fold: (1) the law that allows such threats to be effective and (2) a hyper-cautious nature of the ISP to a ridiculous extent. In the U.S., as I said before, thanks to the Communications Decency Act, it is very hard to sue an ISP, which is viewed as a conduit of information (like the phone company or a printing press) that offers bandwidth to customers, who then publish what they see fit. The U.K. is more problematic because ISPs don’t, as far as I know, have such a protection, and the libel laws are notoriously plaintiff-friendly. Netcetera appears to be a fairly big company, as it has a presence in at least both the U.S. and the U.K. Clearly where Le Canard Noir gets his hosting it’s subject to U.K. law.

    Ever since David Irving was able to drag Deborah Lipstadt through the mud on a fatuous charge of libel, I’ve considered British libel law to be ridiculously plaintiff-friendly. When a charge of libel is brought it is up to the defendant to prove that what was said was true, not up to the plaintiff to prove that it was willfully false.

  8. #8 rho
    February 19, 2008

    I don’t know. Possibly you’re right. It’s late and I need to sleep. I’ll admit that I’m sometimes too eager to jump in and defend service providers in cases like this, since I’ve worked in the abuse department of an online host in the past, and know the enormous amounts of shit they get subjected too.

    What I’m trying to say, I think, is that we don’t know if Obi (undoubtedly the main villain of the piece) just contacted the ISP himself making vague noises about libel, or if he had a lawyer contact them with a proper legal-speak request. There’s a world of difference between the two. (If we do know this and I’m missing it, please forgive me; like I said, I’m tired.)

  9. #9 Orac
    February 19, 2008

    I wonder if scienceblogs.com would take on Quackometer?

    A longshot, but it may be worth a recommendation.

  10. #10 Paul Hutch
    February 19, 2008

    The URL for Netcetera is: http://www.netcetera.co.uk/

    The http://netcetera.com/ linked in the post goes to what appears to be a placeholder for someone else.

    I’m currently preparing my blog post about this issue, that’s how I noticed.

  11. #11 Rjaye
    February 19, 2008

    And if Obi is using the same “legal representation” he initially used against Le Canard Noir, it isn’t even a barrister making the noise. This is hyper-sensitivity on the ISP’s part. I’m surprised the British people put up with such nonsense.

  12. #12 UK skeptic
    February 19, 2008

    rho

    Obi got a lady with a law degree (but not a lawyer, let alone a libel lawyer) to write a letter. The clear implication was that she writes legal-ish letters for a fee. I repeat, you could not have seen this as a serious threat, certainly not after ten minutes internet checking about Obi. Exactly what “reputation” does Obi have to be defamed? Obi was a doctor who was struck off. Fact. He has “qualifications” that are not real – e.g. he is not a Professor – fact. The “College” he set up is not a “Royal College” as such things are recognised in the UK (where they are, in effect, specialist medical licencing boards) – fact.

    All these things are easily established.

    The problem lies, as Orac says, with UK law. Firstly, the defamation/libel laws which (disastrously) lack anything equivalent to first amendement protection. Secondly the Law WRT ISPs, specifically the Godfrey vs Demon ISP judgement.

  13. #13 Graculus
    February 19, 2008

    Does any one have an address for their management? It needs to rain on them.
    Robert

    Try this one: hostmaster@netcetera.co.uk

  14. #14 James K
    February 19, 2008

    It is the regrettable nature of government that it lags fast-moving industries. The UK (and any country that hasn’t done so already) needs to define the legal role of an ISP as a content-neutral data pipe, protecting them from any such suit. ISPs have no editorial control, that should exempt them from all content-based legala ction.

  15. #15 Infophile
    February 19, 2008

    It is the regrettable nature of government that it lags fast-moving industries. The UK (and any country that hasn’t done so already) needs to define the legal role of an ISP as a content-neutral data pipe, protecting them from any such suit. ISPs have no editorial control, that should exempt them from all content-based legala ction.

    Unfortunately the UK has in fact done just the opposite. I forget the name of the case that established it (it was mentioned in another thread dealing with this issue), but it said that ISPs are indeed liable for retransmission of libelous material. Given how easy it is to declare material to be libelous, this presents quite a problem.

  16. #16 Bob O'H
    February 20, 2008

    I wonder if scienceblogs.com would take on Quackometer?

    He was already planning to switch to another service, Positive Internet (they host Ben Goldacre, so I guess they’re use to controversy). Whilst he’s doing that, he’s been offered a place to kip at BPSDB.

    Bob

  17. #17 blue collar scientist
    February 20, 2008
  18. #18 John Pieret
    February 20, 2008
  19. #19 Andy Lewis
    February 20, 2008

    Hi all and thanks for the support, Orac.

    The quackometer will reappear very soon (I hope). Ben Goldacre’s hosts Positive Internet offered to host me after the Society of Homeopaths affair and I have been planning to move. For the technical: this has involved a porting of lots of ASP to PHP – and I am not that geeky. But, this has undoubtedly speeded things up.

    netcetera’s actions are a little bizarre. I do have sympathy for a business taking flak for a few quid a month, but it was there reluctance to apparently actually think about the situation and engage in any real dialog. They had nearly three weeks to consider my evidence to them before just ceremoniously dumping the site and giving me 20 minutes warning.

  20. #20 Joe
    February 20, 2008

    Would WHSMiths be liable if a newspaper printed something libelous

    Quite possibly. This was one of the tactics that dead crook Robert Maxwell used to use against the campaigning satirical magazine Private Eye – threatening to sue major chains of newsagents for disseminating the libel. For years, some major news chains in the UK refused to carry Private Eye for fear of being drawn into an action.

  21. #21 Bob O'H
    February 20, 2008

    Andy, your URL gives a “page not found” error.

    Oh, wait…

  22. #22 Graculus
    February 20, 2008

    needs to define the legal role of an ISP as a content-neutral data pipe, protecting them from any such suit.

    I believe that the term you are looking for is “common carrier”, already a well established telco doctrine. It’s the reason that the phone company isn’t liable for obscene phone calls. The big ISPs in Canada (Bell, Rogers, etc) long ago submitted a white paper to the government, establishing internet providers as common carriers. AFAK, no one has challenged this.

    If ISPs aren’t common carriers, they can restrict your access to anything they want to restrict, read your mail, hand over your info without a warrant, etc. The doctrine is a protection for both the ISPs and the public. If the UK isn’t holding the ISPs to common carrier, then your issues are far, far greater than finding a new host for “sketchy” stuff.

  23. #23 Orac
    February 20, 2008

    I believe that the Communications Decency Act in the U.S. allows U.S. ISPs to claim common carrier status as well. Certainly Barrett v. Rosenthal ruled that the law even protected Internet users from liability for republishing defamatory material that they did not write, using the rationale that the law treated users the same way as ISPs.

  24. #24 Clare
    February 20, 2008

    I had been under the impression that a disincentive to bringing a libel suit in the UK was that the loser had to pay the costs of the winner. This then tended to reduce the number of “frivolous” suits, and it’s hard to believe you could get more frivolous than “Dr” Obi. Am I wrong about this?

  25. #25 Dr Aust
    February 20, 2008

    Think the basis of these laws and legal judgements all comes back to the First Amendment and the resulting presumption that free speech should not be curtailed, even as a byproduct of other legislation.

    The trouble with the British Law is that, while the ISP is not generally judged directly liable for the stuff being posted in the first place (since they can’t, and don’t, vet stuff), British law DOES see them as liable if, having been informed that a defamatory statement is on a blog hosted on their site, they don’t take it down. The upshot of this is that they automatically take down anything that anyone objects to with a threat of legal action.

    In effect, the UK law views ISPs as “publishers” (cf newspapers) in respect of any material on their sites, rather than as “conduits” (cf telcos).

    So the difference between Barrett v. Rosenthal (US) and Godfrey v. Demon Internet (UK) here is stark.

    And the UK libel law (with it’s emphasis on the defence having to prove “justification” rather than the prosecution having to demonstrate “malice”) is so utterly silly that it has produced the depressing phenomenon of “libel tourism”.

  26. #26 Peter
    February 20, 2008

    Those are some spineless cowards at Netcetera. A good reason to boycot Netcetera. Perhaps they’ve been drinking noni juice and other quack miracle cures that has caused severe damage to their senses, leading to a depleted sense, or worse, total lack of sense.

    Let’s deem Netcetera as unacceptable.

  27. #27 inkadu
    February 20, 2008

    I don’t have any sympathy for Netcetera.

    And what’s more, I hope this stupid action of theirs causes more hassle (in lost reputation and revenue) than a waiting for this completely idiotic claim to be dismissed from court.

    The third google hit on “Netcetera” is already about this cowardly action. Great PR move, guys.

  28. #28 Graculus
    February 21, 2008

    having been informed that a defamatory statement is on a blog hosted on their site, they don’t take it down. The upshot of this is that they automatically take down anything that anyone objects to with a threat of legal action.

    Canadian law is “notice and notice”, that is the ISPs are required to pass any complaints along to the “offending” party. After that they are out of the loop until the complaints are actually filed. Some ISPs have, all on their own, instituted “notice and takedown”, but that is beyond the actual legal situation. Telus can go to hell.

  29. #29 Dr Aust
    February 21, 2008

    Yes, the British law on this is a hopeless mess compared to the UK and Canada. The need for some sensible new legislation is clear, but British Govts are historically reluctant to do anything legislative that curtails lawyers’ ability to trouser huge fees (such as in defamation lawsuits). Perhaps this is because so many British politicians are lawyers.

    In the UK situation, if the plaintiff says to the ISP “this libellous thing about me is posted on your servers, take it down”, then an ISP that doesn’t take the stuff down becomes directly liable for the libel (Godfrey vs Demon internet). Furthermore, the longer the stuff remains up, the greater the potential libel damages “for accumulated damage to reputation” in a defamation suit – the longer the offending passage is up, the greater the potential harm to reputation, goes the reasoning. The ISPs almost certainly take the view that they are a more “attractive” libel suit target, as they are companies and hence clearly have assets, while the blog poster is likely to have no money to speak of. So the ISP has a large vested interest in caving in. This is why the “legal chill by threat to sue” types in the UK go for the ISP rather than the blogger.

    All American bloggers should be duly grateful, methinks, for the judgement in Zeran vs. America Online, which effectively says “ISPs are not publishers”.

    In the UK, where the law conversely does see the ISP as a publisher, it comes down to whether the ISP is prepared to tolerate any potential liability, or even inconvenience, for the sake of some kind of principle.

    When UCL was trying to boot David Colquhoun off their servers following complaints and spurious libel threats, many of the people writing to the UCL Provost (including me) argued that as a University UCL had an overriding duty to protect free comment, and scientific accuracy, as part of its core purpose. But it is a bit harder to make that argument with a business or corporation, whose overriding obligation is presumably to maximize “shareholder value”.

    An interesting and unresolved question, with wide Internet implications, is to what extent a judgement under the silly UK law can be enforced in any other jurisdiction. In print libel cases there are suggestions that under some circumstances it can, hence the phenomenon of “libel tourism” I referred to earlier

  30. #30 Dr Aust
    February 22, 2008

    For anyone still following, Le Canard Noir is now back online, though still in the process of “running up” to full Quackometric analysis power.

The site is currently under maintenance and will be back shortly. New comments have been disabled during this time, please check back soon.