Fellow Gifsters,,,,This artical/publication I thought would be of interest to the posters on the GIFS thread. Good to keep these things in mind when posting, emailing, etc over the internet. Mr Grossman gave me special permission to post this providing I didn't alter the message in anyway.
Harvey Kirby
Subject: Defamation Online--Computer Law Tip of the Week
You are responsible for what you do and say on the Internet. This should be
so obvious that I shouldn't have to say it, but I do. The Internet has this
lawless "Wild West" reputation about it and people commonly think that it's
a free for all. It's not and if you defame some-body on the Net, you just
may learn that the hard way. You may just find yourself answering for your
actions in a courtroom and it may not be the one downtown. It just may be
one in another country.
When you get right down to it, the Net is not all that different than other
things when it comes to defamation. (A "defamatory" statement is one that
tends to harm a person's reputation. Related concepts are "slander," which
generally involves an oral statement; "libel," which generally involves a
written statement; and "injurious falsehood" which involves the reputation
of property such as a business.) Whether you defame somebody in a magazine
or on the Net, you've caused harm to their reputation. I don't think that
courts will ultimately view defamation on the Internet any differently than
defamation on paper.
Unique Defendants
Of course, like with most other legal topics, the Net does add some of its
own wrinkles to the analysis. For example, with the Internet, you now add a
few new players to the picture like the online access provider (OAP), the
Web site host and newsgroup organizers.
For the uninitiated, OAPs are companies that give you an on-ramp to the
Internet. Your computer calls their computer and they hook you up to the
Internet. "Web site hosts" are companies that provide the service of making
Web sites available on the Internet for the world to see. "Newsgroups" are
like computerized bulletin boards. Basically, you send an e-mail to a
newsgroup and anybody in the world with newsgroup access can see your post.
The new players brought by the Internet want to have minimal responsibility
for the defamatory statements made by their users and customers. Where they
will stand in particular states and countries will depend on how courts and
legislatures analogize them to more traditional media.
If you view an OAP like the telephone company, they would have only minimal
responsibility for defamatory statements made using their system. Like the
telephone company, it would be an impossible burden to require them to
filter defamatory data flowing through their systems.
Viewed as a publisher, a Web site host may be held to a much higher legal
standard for defamatory material that their computers host for a customer.
As a publisher, the host may be required to review material or, at least,
act as judge and jury if somebody complains about defamatory material on
their system.
If courts viewed Web site hosts more like distributors of information, not
publishers, they would be held to a much lower standard. After all, we
don't generally expect book distributors to be responsible for the content
of the books they distribute.
In 1996, Congress put itself into the fray. It enacted Section 230 of the
Communications Decency Act (CDA), which generally provides that an OAP
won't be treated as a publisher of any information provided by somebody else.
In an interesting case, Zeran v. America Online, Zeran sued AOL arguing
that AOL unreasonably delayed in removing defamatory messages posted by an
unidentified third party, refused to post retractions of those messages,
and failed to screen for similar postings after the first one. The court
rejected Zero's technical legal arguments and refused to hold AOL liable
holding that Section 230 "plainly immunizes computer service providers like
AOL from liability for information that originates with third par-ties."
The United Kingdom also jumped into the issue with its Defamation Act of
1996. Under the act, someone who is not the author, editor or publisher of
material like an OAP may have defenses to a defamation action. The
protection doesn't appear as broad as the American CDA protections,
especially as broadly interpreted as it was by the Zeran court.
In the UK, an OAP must show that they had no reason to suspect that it was
publishing defamatory material after taking "all reasonable care." If
that's not open ended enough, the term "all reasonable care" isn't defined.
Does it mean screening material? Does it mean shutting down Web sites that
have a "bad" history? British courts presumably will resolve these and
other open is-sues over time.
Where Can You be Sued?
Probably the single most important difference between the Internet and any
other medium of communication is that with the Net every message is
potentially available instantly throughout the entire world. If you publish
defamatory information on your Web site, it's there for the entire world to
see. Nothing else has quite that ability. Does this mean that you can be
sued for your defamation in another country or state?
The answer may be "yes" in the European Union where they have the Brussels
convention. The European Court of Justice has ruled that a person can bring
a defamation lawsuit in any country where that person's reputation has been
hurt. The catch is that they can only get all their damages if they sue in
the country where the defamatory statement originated. If they sue anywhere
else, they can only get damages for damages actually sustained in that
country.
In the United States, some courts have taken expansive views on this basic
jurisdiction issue. It's quite conceivable that in the right circumstances
you could be required to answer for your Web site or other Internet
material in a distant state that you may never have physically visited.
Caution is always called for when stating "facts" on the Internet. If your
facts are wrong, you may find yourself sued for defamation. The best
defense to a defamation action, whether based on Internet disseminated
information or more traditional paper disseminated information, remains the
truth. Truth is an absolute defense to defamation.
------------------------------
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I would like to acknowledge the research assistance provided by Adam
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Disclaimer: The advice given in the Computer Law Tip of the Week should
not be considered legal advice. This newsletter only provides general
educational information. You must never rely upon the advice given here.
Your individual situation may not fit the generalizations discussed. Only
your attorney can evaluate your individual situation and give you advice.
Except as provided below, you may feel free to forward, distribute and copy
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Copyright 1998 Mark Grossman
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Mark Grossman leads the Computer and Internet Law Department
of Becker & Poliakoff, P.A. This is the digital version of his nationally
syndicated Computer and Internet Law column which appears in the South
Florida Daily Business Reviews, Washington's Legal Times, San Francisco's
Recorder and other publications. He is also a regular contributor to PC
World Magazine, the Florida Bar's Computer Law Journal and other
publications.
For further information, you can contact Mark Grossman at (305) 260-1018.
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