Defamation On-line - New Modes of Publication
This is the text, with some expansions, of a talk given at Cobbetts Solicitors, on 1 December 1999, for the Northern Group of the Society for Computers and Law.
- Those who wish to sue in defamation in cyber-space (and those advising them) had better make themselves acquainted with its:-
- Completely new relationships and
- modes of publication
- Usenet and ISPs will not die of the fear of defamation.
- Publication and Publishers
- New Mechanics
- New distribution structures
- Big question is liability of the ISP.
- Business is geared to transmission of huge quantities of data
- Defamation Act 1996
- Extends and refines the innocent dissemination defence
- Godfrey v Demon
- Confirms the limits
- Resistance to Damage
- Damage is damage to Information
- := Resistance to damage to data
- := The Net will not be Censored
- But Not Just History
- Defamation Action = Censorship = Damage
- This is the core of how and why the Net has succeeded
- Still informs opinion on the Net
- They can't Stop Us Yippee
- E-mail/Mailing Lists
- Chat Rooms and IRQ
- Some convergence, but fundamentally remain different
- Constant development of new modes of communication
Basics - Always ask
- What is the file?
- Where did it go on the way?
- Who pushed, and who pulled?
- What routing information exists?
- What back-ups exist?
- Has it been quoted/ referenced
- Who is writing, and who is listening?
- Where else might it go or have gone?
- Bulletin Board
- Flood fill of news-servers
- One to many - no direct addressee
- Carried by ISPs ISP hosting?
- Huge potential power
- 30000 Newsgroups - differ hugely
- Million messages a day?
- Anonymous postings
- Individual pages, but visible (usually) to anyone
- Remote hosting of various elements and facilities
- Hidden messages
- Links. Is a link to a defamatory site, itself defamatory?
- Site logs as evidence of visitors
- Addressed to individuals either directly or indirectly
- List hosts source of members list?
- Is it as private as it seems?
Chat Rooms and IRQ
- Live conversation by typing alternate lines
- Either within a web page, or on separate client software.
- Single lines typed and answered similarly.
- One to one or usually only a few people
- Archived where?
- Valid IDs?
- Nearest to slander, but not quite.
- Who precisely is the host?
- Paper publication printed and distributed
- Movement from one place to another
- Not usually further replication after initial printing
- Electronic Files
- Copy or Download/Upload
- A new copy is made (R v Bowden 1999 Nov)
- Huge Power.
- No document is ever published as before.
- Certainly enough for libel
- Even on-line conferencing sent by files
- More permanent than you might think
- Taking back-ups is the first principle of computer management, but has proved achilles heel of several companies.
- A fertile source of discovery
- x no archive
Defamation Act 1996
- The problem and the business model
- Too many postings; no reward for carrying Usenet?
- Abuse: Content or the Net
- Innocent dissemination - troubled Newsagent
- 1.Defence if
- a)not author, editor, publisher, and
- b) took reasonable care on publication, and
- c) no reason to believe defamatory
- (much condensed)
- Special meaning for publisher but not for publish
Godfrey v Demon
- By a Usenet reader against an ISP who was not his own
- A posting not from that ISP
- Request to take down not heeded.
- Case not concluded, but legal issue not appealed.
- Free Speech issue? Demon seem undecided
- Publishers at Common Law, even if not publishers within the section.
- Defence was hopeless struck out.
- Posters is identity known
- News-server administrators
- Intermediate hosts
- Malicious Falsehood
- Economic loss but see Khodaparast v Shad Times 1 Dec 1999 aggravated damages for injury to feelings
- Must prove falsity
- Must show malice
- Defamation Act does not apply, save for limitation
- Legal Aid?
- Appropriate to suck sites?
- Damage to reputation
- Defendant shows truth
- No malice needed
- Defence under the Act
- No Legal Aid
- If you must ...
- Some forum other than England can be better - South Africa?
- We can be better than elsewhere
- Any substantial reputation here to be damaged
- Dancing on Pinheads
Free Speech and Accountability
- Matter of policy not law
- Usenet is an international medium
- ISPs to control access from apparently anonymous accounts?
Other Speech Regulation
Telecommunications Act 1984
- Human Rights Act
- Right to Free Expression
- Personal Privacy
- Media Rights
- What will be left of Common and Statute law
- Whose rights prevail?
- Practical Implications
- 43.-- (1) A person who --
- a) sends, by means of public telecommunication system, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
- (b) sends by those means, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a message that he knows to be false or persistently makes use for that purpose of a public telecommunications system shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both
- This talk will be available (shortly) from
- Defamation Act 1996 on-line at
- Godfrey v Demon at