Jeff...Hi there bud! Here is an interesting article.
theinquirer.net
Libel and slander on the world wide web
M'learned fiends agree ? opinions differ
By ?uromole: Sunday 29 December 2002, 11:07
THE RECENT DECISION that the Gutnick v. Dow Jones case for defamation can be held in Australia -- where the article was read -- and not in the USA, has led to copious weeping and wailing by posters to bulletin boards and discussion forums. A common cry is "This is the end of the world as we know it, the end of Free Speech on the web".
Frankly, I am amazed that people somehow believe that the web should be exempt from the possibility of legal action for defamation when it is already subject to other laws and clearly quite capable of displaying defamatory remarks.
I am not a legal professional but only a writer who is interested in the legal aspects of the Internet so this piece is based on a number of legal opinions and the verdicts of various cases. M'learned friends will be only too happy to start clocking up their meters if you need further advice.
What is defamation?
To put it simply, defamation is involved with a statement or action that lowers the reputation of any legal entity and that this reduction of reputation puts that entity at some kind of disadvantage. (An entity can be a person, company, organisation or group of people. For the purposes of this discussion I will use the term "person" but imply all the above entities.)
We speak here of reputation and while this applies to any individual in UK and Australian law, there is a distinct in most US defamation laws between a public figure and a private person.
There are two types of defamation. In its spoken form, it is slander and in the written form it is libel. The distinction is that the spoken form is regarded as transitory while the written form is permanent and the latter has the greater potential for damage.
The general nature of defamatory statements is that they are untrue and are made with willful disregard for the truth - but as we shall see, even a truthful statement can be regarded as defamatory in some legal jurisdictions.
Usually the disadvantage to the person is financial and in the nature of loss of earnings, but it can also be other forms of disadvantage. One famous old English case was for a reduction in "hospitality" that was suffered as a consequence of statements made by another person.
If the defamation is proven, then the nature of the punishment is often monetary on the basis that it is regarded as compensation for any loss of earnings that may result from the lowering of the victim's reputation. It is for this reason that they are generally known as "damages".
Defamation can be proven even if it's only to one other person, more commonly the statements are made to a large number. In essence, it depends on the consequences of the allegations. If only 10 people are aware of the comments and those 10 people account for a significant part of your income or business, then there could be a case to answer.
But the reaction of 100 people is not likely to be significant if they accounted for just a few percent of your business or income, and so taking action against someone for defamation is not likely to be very productive. If those 100 people were all of your current customers in a foreign market that you were trying to enter, that might be different.
So any legal action for defamation must require that the subject of the defamation must have some kind of reputation, that the reputation was lowered by the statements of the other party and that the lowering of reputation has caused some kind of loss and damage to the subject.
Libel versus Free Speech
"Free speech" lets a person make criticisms and comments of a possibly detrimental nature about another person. There can be times when that person's reputation is damaged by these comments and so there can be a basic conflict between free speech and defamation.
The USA is always keen to invoke the notion of free speech because of the nature of its constitution, and their laws on defamation tend to favour the person making the statements.
The European Convention on Human Rights (ECHR) also favours protecting the individual, but still recognises the conflict between free speech and personal rights. Article 10 of ECHR grants protection to the freedom or expression, but article 10 (2) says that one of the legitimate grounds for limiting an individual's right to freedom of expression is in order to protect the reputation of others. The ECHR is on record as saying that the protection to the individual must be as narrow as possible in order to protect their own rights but not to significantly reduce the right to other people to free speech.
In this balance between free-speech there are some cases where remarks are generally not regarded as defamatory, but there is an onus on the person who makes those statements to make the nature of those statements crystal clear.
Any personal opinion that is clearly expressed as an opinion is not usually regarded as defamatory but if that opinion was presented as if it were fact, then it might be defamatory.
There are instances where theatre or restaurant critics have been successfully sued because their articles went beyond fair criticism.
Articles that are clearly satirical only risk being defamatory if a reasonable person would be unlikely to understand that the remarks were not to be taken seriously.
Defamatory remarks can also be made in the context of a court or legal forum with relative immunity as they can for a sworn legal statement or other document where there is a legal requirement for an honest opinion (eg. as a reference for someone's character). There is often a privilege in a federal parliament or similar statutory authority that permits its members to make remarks that would be considered defamatory if made in another forum. Finally there is a qualified exemption for journalists' fair reporting of defamatory comments.
Proof and the pudding
Countries vary a lot as to what the plaintiff must prove and what the defendant have to prove. Some put the onus on the plaintiff to prove that the statements were not correct, others put the onus on the defendant to prove that the statements were correct, and in some cases the notion of truthful statements is only part of the picture.
Different states in the USA have differing defamation laws. In most states, if the subject is a public figure, then the plaintiff must demonstrate that comments were made with the intent to cause malice (ie. to deliberately cause damage to the subject's reputation) but other states raise the bar by also requiring that the plaintiff prove that the defence had some doubts about the truth of the statements and yet chose to publish them without diligent investigation of their truthfulness. The USA also draws a distinction if the subject is a public and private figure because a public figure must also prove intentional malice.
The British and Australian laws are quite different. Any statements that may cause damage to a person's reputation can be defamatory regardless of whether that was the intention of the person who made them.
The defence of the statement being truthful is fine in many situations but there are some states of Australia that want more than the truth by requiring that the disclosure made in the statements must be "in the public interest".
Types of meeja means what?
The laws of defamation can be considered to apply to any medium that is capable of communicating defamatory remarks. The law has been a little slow to catch up with the Internet but it meets this standard just like many other forms of media.
Actions for defamation against newspapers and magazines are relatively common but we are increasingly seeing action against television programmes and there have even been instances where books and films have been the subject of legal action.
The general yardstick for defamation is whether a "reasonable person" would lower their estimation of a person as a result of the statements made, so reducting the reputation of the individual. The law looks at the totality of the presentation to make this judgment, and for some media this totality can include images as well as the spoken word. There are some implications here for defamation on the web.
Who can be sued?
The simple answer is that anyone responsible for putting statements into the public arena can be sued for defamation.
The publishers and editors of a newspaper or magazine can be sued, as can the reporter or journalist who wrote the story. On the other hand the notes made by the journalist cannot be regarded as defamatory unless they have been made publicly available.
Book publishers, film producers, TV journalists, producers, and many others have had their defamation collars felt in the past.
Legal Jurisdiction
The term "jurisdiction" means the conceptual limits to the applicability of some law.
Many countries have laws that differ between states and so the legal jurisdiction of any one state is generally confined to that state. There is also the question of whether that state is the correct legal jurisdiction to settle the matter in dispute.
The recent US court case involving a Russian software house and an American company appears to be an attempt to extend the legal jurisdiction of the USA into foreign countries, but in general such instances are - or at least have been - quite rare. In most cases there are international courts or similar recognised forums in which these matters are settled. To date there is no such entity as an international court to deal with matters of defamation.
In the last few weeks a lot of electronic words have been used to claim that anyone accused of defamation will be able to "shop around" to find the most favourable location to take legal action or that they might take legal action in more than one country or jurisdiction. These are rather extreme situations but to be honest, they have always been available to a certain group of people.
There are circumstances where this action in other countries is entirely reasonable. For example a person might live in one European country but have significant business interests in another. It would be quite reasonable to make a claim for defamation in the country where those business interests were located if the statements that are claimed to be defamatory were public ally available in that country and if the statements had a negative impact on the business.
In a similar fashion, if business interests also existed in a third country and the defamatory material was available in that country, again on the proviso that the business experienced a negative impact from those statements, then it would be reasonable to also sue for defamation in that third country.
The reality is however, that any person or business will have a significant reputation and business interests in only a few countries at most, and that any attempt to sue for defamation -- loss through damage to that reputation -- in other countries will be pretty much a waste of time.
The willingness of one country to enforce the legal decisions of another is interesting. Many attempts have been made to formulate some kind of international agreement. For example, governments around the world have been negotiating the Draft Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters. The intention of this agreement is to provide some certainty about jurisdiction of courts in matters that have an international dimension -- which surely includes the Internet -- and that signatories to the agreement will recognise judgments in other countries even though the laws in that country may be different to their own. This recognition of judgment means that the decision will be supported as if it took place in the country that signs the agreement. With no formal agreement in existence it must be said that the consequences of being found guilty of defamation are going to vary. Judging by the instances of defamation decisions against news reporters in certain countries, particularly when they were found to have defamed the government, one can expect almost anything from being physically detained, having one's local assets seized, or being evicted and banned from the country in question.
These actions are relatively simple when we are dealing with something that the legal authorities can control -- newspapers, magazines and to a lesser extent radio or television -- but controlling the Internet does present a greater problem.
Your own government will support the decisions of the foreign court even though you may not have been found guilty of defamation under the law in your own country. A notable case in 1995 saw a US court refuse to enforce a British defamation judgment on the basis that it would violate the First Amendment to the US Constitution, the amendment granting free speech.
There are many other reasons why one jurisdiction might not support the judgment of another and we won't go into them here, save to say that such action may become mutual and that neither country ultimately supports the judgments of another ? which takes us back to the undesirable situation of the poster being able to shop around for a favourable country and the victim being unable to take action to defend his or her reputation.
Defamation on the web
A Web article potentially crosses all boundaries. Any posting to a public and open forum is usually available for worldwide access but equally a posting to any kind of service offering restricted access (eg. subscription and/or password) must also be regarded as worldwide for the purposes of defamation.
We were quite surprised that a recent US court case decided that an online newspaper was only directed at residents in a certain state and that a resident of another state could not sue for defamation. We are certainly not claiming that the prosecution would have been successful, only that such a decision is bizarre in light of the worldwide nature of the Internet. Considering an analogous situation of defamation in a magazine, the decision infers that you cannot sue for defamation if you are not a member of the set of target demographics for that magazine.
Since the decision on the venue for the legal action for Gutnick v Dow Jones, there have been many comments that the consequence is that all publishers and posters will need to be aware of all laws for defamation in all countries. The practical reality is that it is reasonably easy to identify the person who might take action for defamation in a web posting and therefore it is not difficult to be generally aware of the forums in which they might try to make claim for damages.
As an example of this, it should have been evident to Dow Jones' publishing group Barrons that Gutnick was known in the USA but was based in Australia and was well known there. Dow Jones should have asked for a review of the comments from people familiar with Australian law and they clearly have the resources to have done this. Other posters may not be in a similar position.
Those who proposed that any attempt to sue for defamation should take place where the web server is located are showing serious biased towards those making the initial statements. Such a move would put someone at the disadvantage of having to prove that their reputation suffered damage in a forum where they may have no reputation at all. Further, this would encourage a situation where a person only needs an account on a web-server in some country where defamation laws are less favourable to a defendant and that person could say whatever they liked with almost certain immunity.
Finally there is the potential situation where a web page is constructed of several components which are sourced from different jurisdictions - perhaps text from one location but images from a source in another country. Defamation looks at the totality of an article and not the components, which taken alone may not be defamatory. The article may only exist in its defamatory form at the location where the reader sees it and so it is perfectly logical to pursue legal action at that venue.
Individual Posters
There is no escaping the fact that there is no legal immunity for authors of defamatory statements on bulletin boards, chat rooms, Usenet forums and even web pages. If you make a defamatory comment then it is at your peril. It is entirely up to you as a poster whether you wish to risk prosecution for defamation.
The reality is that postings to these forums can damage a person's reputation in the same way as it can be done through any other means of public communication. To try to claim an exemption for Internet forums would be totally absurd.
Earlier we mentioned that the totality of a presentation can be significant and in the context of web postings, this could include the text, any images, any sounds and any pages that you link to from your posting because these could all be used to defame a person.
The reality is that an award for defamation will usually be based on the extent of impact of the defamatory statements. The impact may be miniscule in some jurisdictions but more significant in others. Whatever the jurisdiction, you will put yourself at greater risk if you attempt to present your information as a factual statement.
ISPs
The liability of any Internet Service Provider (ISP) also varies between jurisdictions.
It appears that in the USA an ISP can only be held liable if it is aware of defamatory postings and elects to do nothing about it.
In Australia the initial situation, was that the ISP could always be held liable for defamation and a string of other charges but that's been modified recently. It now matches the USA model ? ignorance appears to be a legitimate excuse.
In the UK the British Law Commission recently produced a report that concluded that ISPs usually comply with demands to remove certain material on the basis that the material may be defamatory. The problem of course is that the material may not be defamatory at all and that those accusing posters of defamation have far too much power.
The report also noted that, unfortunately it is the ISP who is "in the firing line" because it is the easiest to contact, especially when web postings can be easily be anonymous or at least hidden behind layers of pseudonyms.
One significant conclusion of the report was the suggestion that the UK should also adopt the US approach to liability of ISPs.
Is the law fair to ISPs? Probably not. They do not usually take an active role in presenting the information content to the public. They are neither the writer of the article nor the publisher of the article because they exert no control over it and cannot be expected to make legal judgments as to the content. The ISP's role can be likened more to a printer or distributor of a newspaper or magazine in that they provide a means of distribution of the information. It would be as unrealistic of the ISP to read everything that was posted via their service as it would be for a newspaper distributor to read every word of every publication that they handle. But printers are often cited as co-defendants in British libel cases.
The ISP is being called upon to be the police, the judge and the jury on these matters and to our thinking this is not a reasonable state of affairs - but for now at least, it is the law.
So what should an ISP do to minimise its risks of being charged with defamation? In our opinion the obvious solution for at least some countries is to be deliberately unaware of the information that is being posted through your service. If you have no control over the content of the posting then it would be difficult to hold you responsible for defamation.
People posting messages should see a prominent statement that the ISP will not be monitoring their postings and any legal risk will fall directly on themselves.
What happens if someone advises an ISP that they believe that a posting is defamatory? The short answer is that in the current legal situation, you have a problem and that you should get an informed opinion from a member of the legal profession.
Our Tuppence worth
It is our opinion that the laws need to be changed in most countries so that the ISP becomes a neutral entity as regards any laws about defamation. This appears to be the only way to balance the conflict between free speech on the web and the rights of those who may be defamed; it is quite different to the current situation where the ISP appears to act in favour of those claiming to be defamed.
There may be times when the ISP may have to become involved and to act within proscribed limits to enable communication between the parties or their legal representatives. The ISP should be required to act according to written instructions from the poster of the material that is claimed to be defamatory. The poster is quite within their rights to request that the article remains on public display even if it put them at risk of prosecution.
There is also a good argument that any article or posting that is claimed to be defamatory should be clearly labelled as such until the situation has been resolved. This would not infringe on anyone's rights but it would serve as a cautionary note to readers and it would minimise any further damage to the claimant.
One problem with all this is of course that it would require international co-operation to define the legal position of the ISP and even more co-operation to enforce it. On the other hand it would clarify the ISP's position and would resolve the current problem that the ISP may be held liable for defamation in some jurisdictions but not in others.
Summary
So what have we learned? Firstly it is obvious that web postings can be as libellous as any other form of media and that legal action for defamation is a real possibility. A lack of care could land you in seriously hot water but just how hot the water will be depends on the jurisdiction in which the accuser wishes to press charges.
The laws on defamation attempt to strike a balance between the rights of the individual and the rights of free speech and jurisdictions differ in where they have struck this balance.
Generally - but not always - the truth is a satisfactory defence; some jurisdictions require more than that and others put the onus on the plaintiff to show that malice was intended and even that there was willful disregard for the truthfulness of the statements.
In principal, the accuser must have suffered some damage from the postings and in practical terms this is unlikely to be in more than just a few jurisdictions at the most, moreover it is usually not that difficult make a good guess about which jurisdictions will be involved.
Expressing an opinion is usually quite safe but portraying something as fact can leave you open to claims.
Finally, on behalf of ISPs, we appeal to the various powers to not expect them to pass legal judgment as to whether a posting is defamatory and whose rights are being transgressed. We believe that ISPs should operate within strict legal parameters but otherwise be neutral in these matters.
References
There are a huge number of web-references for defamation both in a general sense and on the Internet. Here are a few that caught our eyes.
For the USA in particular -- GigaLaw.com®: "Legal Information for Internet Professionals".
For the UK, Yourrights.org.uk is somewhat similar. It has several pages about defamation under the "your rights" links in the sections about "free expression".
The Australian equivalent is OZ Net Law , a web site that is supported by the Australian government and various legal companies. The "enter" link on the home page is not easy to find but it is at the bottom of the page and near the centre.
A commentary about Canadian defamation laws is here.
Different laws in different countries and their application to the Internet can be found here. This is an article from the "Journal of Information, Law and Technology", which sounds like a very worthy publication.
Finally the recent BBC article by Bill Thompson makes for interesting reading. It's here . µ |
