Defamation on the Internet

The recent increase in use of and interest in, the Internet has been rapid. The number of Internet users worldwide has been estimated at 2 billion and growing at 20% each month. This increase has aroused considerable interest in a number of legal issues, one of which has been the application of the law of defamation to online services.

The essence of the internet is the content that provides. Publication of contents can, of course form the basis for liability. In recent years, defamation on the Internet has become one of the hot topics of Internet law. Many gallons of both real and virtual ink have been spilled in computer and legal journals, as well as on-line electronic fora, as the impact of “terrestrial” defamation law on both suppliers and consumers of Internet services has been debated.[1]

The law of defamation has been defined in the West for centuries, and the Internet variety holds to that same basic outline with a few twists. Defamation is the act of making an untrue statement to a third party that damages the subject’s reputation

There are several subcategories of Defamation, being Libel and Slander. Libel is Defaming in a printed forum, such as a newspaper or magazine. Slander is spoken Defamation, and could be made person-to-person, or also broadcast over a radio or television. In the case of Internet it will be therefore always libel.

The law of defamation in the United Kingdom differs in both subtle and dramatic ways from American defamation law. Before the advent of the Internet, individual nations could define defamation in their counties without concern of how their law may differ from other countries. U.K. defamation law is similar to U.S. defamation law before the 1964 landmarks decision in New York Times Co v. Sullivan[2] and as a consequence; it is much friendlier to plaintiffs. The United Kingdom prizes an individual reputation more than the United States. Because it also prizes freedom of the press to a much lesser extent than the United Sates, U.K. defamation law provides little protection to the press when it criticizes government officials[3]. A plaintiff must prove that the press made a defamatory statement to him and it’s up to the defendant to prove that the remarks were true.

The U.K. law of defamation on the internet is being established by litigious physicist and university lecturer, Dr. Laurence Godfrey, who has brought at least two suits alleging defamation on the worldwide web. The first suit was against a physicist Philip Hallam-Baker, and it was settled when Dr. Laurence Godfrey accepted a significance payment from the defendant. In 1999, Dr. Godfrey also sued and ISP, Demon Internet Limited[4], for defamation based on a message that an unknown person posted on a UseNet news group; on January 1997 Dr Godfrey informed Demon of the defamatory message and requested to be removed. The item was not removed by the end of January however and therefore Godfrey claimed damages. It was argued by demons however the Demons is an ISP and therefore not the publisher of the remark. It also argued that even if it did publish the remark it was entitled to claim the defence of innocent dissemination under the Defamation Act of 1996[5]. The High Court of Justice, Queen’s Bench Division handed down the ruling striking or Demons defence under the Act.

Section of the Defamation Act of 1996 replaced the UK common law rules governing innocent dissemination of defamatory material where the disseminator is an ISP. Section 1(1) of the 996 Act provides that in defamation proceedings a person has a defence if he shows that (a) he has not been the author, editor or publisher of the statement, (b) he took reasonable care in relation of the publication, (c) he did not know, and had no reason to believe that what he did caused or contributed to the publication of a defamatory statement[6].

In order to prevail under s1 (1), an ISP bear the burden of providing all three elements of the defence. This stands in contrast to the US law, which puts the burden on the plaintiff to prove that the defendant was not an innocent disseminator. The 1996 Act provides also some elements of the innocent disseminator defence. Under section 1(3) of the Act, a person shall not be considered the author, editor or publisher of a statement if he only involved (a) in printing, producing, distributing or selling material containing the statement, (c) in processing making copies of, distributing or reselling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied distributed or made available in electronic form; (e) as the operator of or provider of access to communication system by means of which statement is transmitted or made available, by person over whom he has no effective control[7].

This section has been enacted to absolve an ISP responsibility under s 1(1) of the Act for publishing allegedly defamatory statements unless it had effective control of the person publishing the statements. Furthermore section 1(5) lists some factors considering when to determine if an ISP took reasonable care of the matter under section 1(1) (b). In deterring for the purpose of this section whether a person took reasonable care or had reason to believe that what he did cause or contributed to the publication of the defamatory statement, regard hall be had to (a) the extent his responsibility for the content of the statement or the decision to publish it, (b) the nature or circumstance of the publication, and (c) the previous conduct or character of the author, editor or publisher.

In regard to the Demons case and the argument he made considering section 1 of the defamation Act as innocent. The court agreed that Demon did not publish the remark under s 1(1)(a) but it held that Demon failed to establish under s 1(1)(b) and (c) because Godfrey informed Demon about the posting but the ISP failed to remove it. This clearly indicates that where the defendant fails to take reasonable care, and it had reason to believe that it contributed to the publication of the defamatory statement. Justice Morland referred to the legislative history of the 1996 Act including the Parliamentary debates prior to its enactment, and concluded that section 1 was not meant to provide an absolute defence of innocent. An ISP that wrongly concludes that a statement was not defamatory cannot rely on the 1996 Act for an absolute defence. The 1996 Act requires an ISP to take reasonable care in relation to the publication of a defamatory statement. The court reviewed existing English cases and confirmed that failing to remove or delete defamatory materials can equal publication in some cases. The Court also reviewed two US case that found that was not helpful because of the different approach in US.  In Cubby v CompuServe[8] , CompuServe were sued in respect of a message appearing in a local forum hosted by them. CompuServe had employed a third party specifically to edit and control the content of this forum. The third party posted the information on the Internet once it was edited, with no intervening opportunity for CompuServe to review the material prior to publication. CompuServe argued that they were merely a distributor of the information, not a publisher, and should therefore not be held liable. The New York District Court agreed, holding that CompuServe was here acting in a way akin to a news-stand, book store or public library, and that to hold it to a higher standard of liability than these distributors, would place undue restrictions on the free flow of electronic information.[9] Furthermore in Stratton Oakmont Inc v Prodigy Services[10], the decision went the opposite way. On similar facts, Prodigy was sued in respect of comments posted to a local discussion forum it hosted. Again, Prodigy had employed persons known as “board leaders” to monitor and edit the content of the forum and had empowered these board leaders to remove material, although only after it was posted. The crucial difference from the CompuServe case (such as there was) was that Prodigy had explicitly marketed itself as “a family oriented computer network”, which as part of its “value added” services, would control and prevent the publication of inappropriate messages. This seems to have been enough to lead the court to regard Prodigy as the publisher of the libels in question, rather than as a mere distributor, and accordingly they were held liable[11]

It is clear from this two US case the different approach that the US and UK have in relation to defamation. The UK defamation Act it little more than gives court a blueprint for applying the traditional and rather weak innocent disseminator defence to the online environment[12]. It does not provide the relatively broad protection from liability that US law provided to traditional distributors, let alone the extremely broad protection that ISP’s now enjoy under section 230 of the CDA[13]. An ISP that is not an author, editor or publisher under s 1(3) that takes reasonable care under the factors listed in s 1(5) and does now know or have reason to believe that what it did caused or contributes to the publication of a defamation statement. Therefore from the Acts wording is clear that protections are not very meaningful especially in the case where ISP does anything more than just carry or distribute a statement.

It is clear also that US law provides more protection for ISPs to carry information provided by third parties, but this may tilt the balance unfairly by easily absolving them from all liability, no matter how recklessly they may act in carrying third party content. On the other hand United Kingdom has not yet begun to remove disincentives for ISP’s to carry such content. The Defamation Act does little more than provide a modern law equivalent of the common law defence of innocent dissemination. It does not modify existing law enough to take into account the different nature of the Internet[14].

In conclusion it can be said that the decision on ISP liability provided by the US and the UK highlight the constant tension that surrounds defamation law. It shows the difficult to balance the interest of free speech with the interests of personal reputation. The United Sates tilts the balance in favour of protecting speech even if the speaker is irresponsible, while United Kingdom law goes far to the other extend of protecting reputation and therefore making it hard to distinguish which one will be more appropriate to use and more fair.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography:

Books:

George B. Delta, Jeffrey H. Matsuura “Law of the Internet” (Aspen Publishers Online, 2001)

David I. Bainbridge “Introduction to Computer Law” (Pearson Education, 2004)

Websites:

Lilian Edward “Law and the Internet – Regulating Cyberspace” http://www.law.ed.ac.uk/it&law/c10_main.htm

 

Weblaw, “Defamation and the Internet” http://www.weblaw.co.uk/art190499.php

 

Kelly O’Connel  “Understanding Internet Defamation” http://www.ibls.com/internet_law_news_portal_view.aspx?s=latestnews&id=1874

 


[1] http://www.law.ed.ac.uk/it&law/c10_main.htm

[2] 376 U.S. 254 (1964)

[3] http://www.man.ac.uk/MVC/SIMA/legal.defam.html

[4] Godfrey v Demon Internet [1999] 4 All ER 342

[5] “Law of the Internet” Pp 8-53

[6] “Law of the Internet” pp 8-52

[7] “Law of the Internet” Pp 8-53

[8] 776 F.Supp. 135(S.D.N.Y. 1991)

[9] http://www.law.ed.ac.uk/it&law/c10_main.htm

[10] 1995 NY Misc Lexis 229

[11] Ibid

[12] “Law of the Internet” pp8-56

[13] Communication Decency Act (CDA) 1996

[14] “Law of the Internet” pp8-57

 

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