Law Forum
  Law Books

Adverts from Google:
 
 
Google
 
Web www.swarb.co.uk

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.

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.

Permanence

  • 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
  • Deja-News
  • 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.

People

  • Posters – is identity known
  • Web-Masters
  • ISPs
  • Moderators
  • Employers
  • News-server administrators
  • ‘Intermediate’ hosts
Malicious Falsehood/Defamation

  • 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?


  • Defamation

  • Damage to reputation
  • Defendant shows truth
  • No malice needed
  • Defence under the Act
  • No Legal Aid
  • If you must ...


Forum Shopping

  • 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

  • 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
Telecommunications Act 1984
  • 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

Links

  • This talk will be available (shortly) from http://www.swarb.co.uk/lawb/defInternet.html
  • Defamation Act 1996 on-line at
  • http://www.legislation.hmso.gov.uk/acts/acts1996/1996031.htm
  • Godfrey v Demon at
  • http://www.courtservice.gov.uk/qbdind.htm
Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
All information on this site is in general and summary form only. The content of any page on this site may be out of date and or incomplete, and you should not not rely directly upon it. Take direct professional legal advice which reflects your own particular situation.
Home |  lawindexpro |  Forum | 
| Two Doves Counselling | Faulty Flipper
Copyright and Database Rights: David Swarbrick 2012
18 October 2013 http://www.swarb.co.uk/lawb/defInternet.shtml 101 18 October 2013