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.

Propositions

• Those who wish to sue in defamation in cyber-space (and those advising them) had better make themselves acquainted with its:-
  1. Mores
  2. Mechanisms
  3. Completely new relationships and
  4. modes of publication
• Usenet and ISPs will not die of the fear of defamation.

Defamation Basics

• 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
  

Internet Background

• History
  
• Resistance to Damage
  
• Damage is damage to Information
  
  1. := Resistance to damage to data
     
  2. := 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
  

Structures

• Usenet
  
• Web
  
• 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?
  

Usenet

• Bulletin Board
  
• Flood fill of ‘news-servers’
  
• Cancels?
  
• One to many - no direct addressee
  
• Carried by ISPs ISP hosting?
  
• Huge potential power
  
• 30000 Newsgroups - differ hugely
  
• Million messages a day?
  
• Moderators?
  
• Anonymous postings
  

Web

• Individual pages, but visible (usually) to anyone
  
• Remote hosting of various elements and facilities
  
• Hidden messages
  
• Suck-Sites
  
• Links. Is a link to a defamatory site, itself defamatory?
  
• Site logs as evidence of visitors
  

E-mail/Mailing Lists

• Addressed to individuals either directly or indirectly
  
• List hosts – source of members list?
  
• Moderators
  
• Archives
  
• 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?

  
  

Publication?

• Paper
  
• 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.