Defamation

• the poster of the defamatory statement to a Bulletin Board AND the System Operator of the Bulletin Board;
• the poster of the defamatory statement to a moderated mailing list AND the moderator, where the moderator reads all the messages for content;

• the creator of a defamatory WWW page AND the owner of the WWW server on which it is based;
• potentially, under certain circumstances, the creator of a link to a defamatory WWW page where that link will have the effect of spreading the defamation, and it is clear that the creator of the link intended it to do so.

In the US it seems that the Courts have been inclined to hold the sysops of bulletin boards liable for material held on their boards, be it pornography, illegally copied software or other copyrighted material(55). The debate in the US thus also touches on First Amendment issues and whether bulletin boards etc. should be granted the same type of privileged status as newspapers with regard to publication of allegations about public figures. In this country, the issues raised by electronic defamation inevitably have a less constitutional bent.

Under the present legal regime it is not clear whether an Internet service provider could be held responsible for the nature of the material transmitted via its services, this uncertainty arises out of confusion over the status of service providers. If they are held to be publishers in the traditional sense, they can be held responsible for material distributed via their services. However, if they are held to be similar to operators of a basic telecommunications service or of postal services, such bodies are normally classed as "common carriers" and have a greater degree of protection against defamation actions under relevant legislation. As yet no service providers in the UK have been sued for defamation, so the issue remains undecided.

The draft Bill(56) creates a new statutory defence which will be available to distributors, printers and others who do not have primary responsibility for a defamatory publication, provided they exercised reasonable care in relation to that publication, and they neither knew nor had reason to believe that their acts contributed to the publication of defamatory material (s1). Thus, if a person is not an author, editor or publisher takes reasonable care in relation to the publication of material, and does not know nor have reason to believe that his actions may have caused or contributed to the publication of defamatory statements, he will have a defence against any resulting action for defamation.

The apparent problem with these exemptions lies in s5 of the Bill which provides grounds on which to determine whether a person has taken reasonable care or has reason to believe that his actions may have caused or contributed to the publication of defamatory statements. The three grounds are:

• the extent of his responsibility for the content of the statement or the decision to publish it
• the nature or circumstances of the publication, and
• the previous conduct or character of the author editor or publisher.

The difficulty lies in deciding whether, under this section, if a service provider decides to regularly monitor, and where it feels it necessary, to censor, all or some of the messages on a bulletin board or home pages on a webserver, it runs the risk of losing the protection of this new defence of not being responsible for publication should a defamatory message slip through, because it will have moved from being a passive carrier of information, to performing some form of scrutiny or editorial function. For example a web site which hosts webpages created by students and staff, but which only monitors and censors the student pages, might also find itself liable for defamatory statements on the staff pages, as it would be possible to extrapolate from their actions with regard to the student pages that they were intending to exercise some form of editorial control. If the Bill passes into law in its current form, questions such as this will almost certainly arise in the judicial interpretation of the legislation, and it will be interesting to see if the courts are willing to accept an argument that the exercise of an editorial function in one sector of a site's business does not mean that it loses the right to the s1 defence for all its related activities.

Given the amount of information which may pass across a bulletin board, or be stored and adapted on a webserver, it seems clear that attempts to perform 100% effective scrutiny for defamatory statements are unlikely to succeed. Thus, it would seem likely in such a situation that the best approach for service providers, if the Bill becomes law would be to abdicate any responsibility for content, as to perform a monitoring function would potentially lay them open to a successful lawsuit, which they might otherwise not face. On the other hand, it would appear from a reading of s1(5) of the Bill and its Explanatory Memorandum that a service provider who was aware that an author, editor or publisher had previously published defamatory material might be running some risk of liability if it did not then check any further output from that author, editor or publisher for further potentially defamatory material. This may pose something of a dilemma for both ISPs, and institutional websites.

Perhaps unsurprisingly, this issue has been litigated in the US, and service providers who performed a monitoring or censorship function have, as a result of that activity, been found liable for defamation(57). By contrast those who have not performed such a function have in effect been held to be passive carriers and not liable for content(58). However in the US, it is the absence of any form of an "all reasonable care" test that allows a service provider the option not to monitor traffic, and thus effectively to be classed as a common carrier(59). However, until the draft defamation bill reaches the statute book in this country, what are the matters which need to be considered in regard to an action for libel?:

• In England and Wales(60), "Libel consists of a defamatory statement or representation in permanent form ... Any thing temporary and audible only is slander. Statements in books, articles, newspapers and letters are libels.(61)" It might be possible to argue therefore that electronic communications/publishing are not permanent and thus cannot be libellous. However, as electronic communications/publishing are often downloaded as hardcopy for dissemination and reading, I suspect that this line of argument would be unlikely to succeed, despite the problems that the courts have often had in applying the law to modern technology.
• Is the allegation complained of defamatory as opposed to vituperative/abusive ? Those involved in flame wars on the Internet are frequently abusive about their opposite numbers - however, venting one's feelings, even if they injure the other person's self esteem, is not sufficient for libel - defamation is only made out where the plaintiff is held in lower esteem by others as a result.
• Does the defamatory statement refer to the plaintiff ? That is, would the ordinary man in the process of scanning his newspaper, e-mail, bulletin board or WWW page be led to believe that the plaintiff was being referred to.
• Has the defamatory statement been made known to others - has it been published ? Communication to the party named in the defamatory statement is not publication, as libel is concerned with how third parties view the plaintiff. It has been said that "the question of publication of a libel contained in a letter will depend on the state of the defendant's knowledge, either proved or inferred, of the conditions likely to prevail in the place to which the libel is destined"(62). In the case of an electronic mailing list the individual posting the communication will be well aware of the fact that it will be widely disseminated by the listserver, and still further by automated forwarding devices and the actions of others. In the case of a BBS, the individual posting the communication will similarly be aware that it will be available to anyone who dials up that BBS. It would seem that WWW pages might well have the widest potential dissemination rate of all. Thus the original poster cannot claim involuntary republication, for he is aware that this will occur.
• An important point to note is that "every repetition is a fresh publication giving rise to a fresh cause of action against each successive publisher. Thus not only the author of an article, but the editor, printer and publisher are also liable. Moreover, even mechanical distributors such as bookstalls, could be liable"(63) This is subject to the defence of unintentional defamation. Thus it could be argued that a BBS sysop could potentially be held liable for postings on his board, and that a moderator of a moderated e-mail list (where the messages are read by the moderator before posting to those on the list) almost certainly would be. Similarly the owner of a WWW server would appear to be caught by this, and even possibly an individual providing a link to the WWW page in question.

As all the settled litigation which has so far taken place appears to have concerned libellous statements via e-mail, it is to this that we have to turn to obtain a view of the way in which courts have reacted to defamation in the electronic forum.

The Australian case of Rindos v Hardwick(68) seems to make it quite clear that the Courts in that country are willing to accept that an individual can be libelled via the medium of a bulletin board or mailing list. The case concerned, in part, an entry placed on the DIALx science anthropology computer bulletin board by the defendant. The plaintiff was an academic at the University of Western Australia who was sacked on the ground of insufficient productivity. This action drew protests from academics at a number of international archaeological institutions, including one to the bulletin board from US anthropologist Hugh Jarvis. This in turn was replied to by Gilbert Hardwick from a computer in Derby, Western Australia. This entry imputed that the plaintiff had engaged in sexual misconduct with a local boy, and that his academic reputation was not based on appropriate academic research but "on his ability to berate and bully all and sundry" from which the inference could be drawn that these had some bearing on the plaintiff's sacking

The bulletin board in question was mainly used by academics and students, and according to the Court was accessible by upwards of 23 000 people world-wide. It noted that items placed on the board could also be printed out, and distributed in hard copy. The defendant made no effort to justify his comments, and did not defend his action in court. In his judgment Ipp J found that the remarks were clearly defamatory and had been widely published, and that the plaintiff had thus suffered serious harm to his reputation as a result of them, and awarded him $40 000 dollars in damages. Dr Rindos' lawyer, Robert Castiglione said " Computer users who use these world-wide bulletin-boards should be aware that they could be exposing themselves to defamation actions ... It's an informal system where people say quite personal things, but making allegations of paedophilia and bullying is going too far(69). The case involved two Australian based scientists - as yet it is unclear as to what would happen if the issue had involved an Australian scientist and a Canadian scientist. At this stage, the issue of jurisdiction comes into play, and this has several levels. We accept that it is clear that an Australian resident libelling an Australian resident on an internationally read bulletin board/mailing list will be liable in the Australian courts, however would the Australian courts accept jurisdiction over:

• a libellous statement made by a national of another country against an Australian national on a bulletin board which would be read internationally, including by other Australians ?
• a libellous statement made by an Australian national against a national of another country on a bulletin board which would be read internationally, including by other Australians, and nationals of the libelled party's country ?
• a libellous statement made by a national of another country such as the US, against another US citizen, which by virtue of the Bulletin board was widely read throughout Australia ?

In short, because the standard for defamation would appear easier to meet in Australia than in the US and the defences available are fewer, would it be possible for a plaintiff pick his forum and his law because of the international nature of the Internet - to "jurisdiction shop"(70)?

The nature of the electronic dissemination itself might be a factor - i.e. an individual sends a libellous communication to a listserver in Canada, intending for all the subscribers of the list (including some in Australia) to receive the column, as opposed to his posting his libellous communication on a BBS in Canada, and someone in Australia dialling up and reading it. In the first case the individual is deliberately placing the material into a foreign jurisdiction, in the second that intent would appear to be lacking. The very nature of the WWW however, would appear to place all such defamatory material placed on WWW servers into the first category.

There is of course a further twist to this with regard to the WWW. Take the example of an individual who, while not placing defamatory materials on his WWW home page or server, provides links to such material with the aim of directing others to them. Is the individual concerned, and perhaps his employer, thereby 'publishing' the material as regards any possible libel action?

The recent US lawsuit involving a journalist running his own on-line newsletter demonstrates possible problems for electronic publishing. The journalist, Brock Meeks, a resident of the Washington, D.C. area and an employee of a communications trade journal, created the on-line news service, Cyberwire Dispatch, to comment on developments in the IT field. In one of his articles, he expressed his personal disapproval of the business activities of a particular company, Suarez Corporation Industries (SCI) concerning their activities in the direct mailing business(71). SCI objected to the article and filed a defamation lawsuit claiming Meeks made defamatory remarks and sought to disparage its products. The owner claimed that the Dispatch article lost him business and he thus sought compensatory and punitive damages and demanded an injunction to block Brock from writing further about SCI or its owner(72). In the event, the issue was settled out of court, with Meeks paying SCI's court filing fee, some $64, and promising to contact SCI before publishing any further articles about it.

The case would, however, appear to demonstrate an interesting problem with the law of defamation. The cost of setting up a bulletin board, or Web server is not particularly expensive, however the cost of defending a legal action is likely to be very high. Concern has thus been expressed that as the number of libel suits internationally appears to be on the increase, the law of libel may well be used increasingly to stifle what many Internet users have long considered to be their right to absolute free speech on the networks, and that this will in turn have a "chilling" effect upon the willingness of individuals to carry out certain forms of electronic publishing, and may also make academic institutions less willing to allow staff and students a free hand in this area.

It is clear from the above that this area throws up a number of questions which the courts in the UK do not yet appear to have addressed.

• Can BBS sysops and WWW server owners be held liable when untruthful and damaging statements about individuals are made on systems under their control, even without their knowledge - where does the buck stop?
• If they can be held liable, are they then obliged to monitor every communication or web page - something that is probably next to impossible to do?
• Further, should they then go on to censor those communications or web pages which they suspect to contain untruthful and damaging statements about individuals?
• In allowing untruthful and damaging statements about individuals to be made on systems under their control, are they leaving themselves open to multi-jurisdictional liability?

These are topical issues in the US at present and should be considered seriously in the UK as well. It appears that most UK institutions approach this problem via their rules for use of their computer systems, although others have specific rules about the setting up of individual as opposed to institutional WWW home pages. These type of rules and regulations may provide a defence should a user of the institutions machines, use them to disseminate defamatory material, subject to the actual response of the institution upon the defamation being brought to the attention of the relevant authorities.

54 For an excellent examination of this area, see Waelde, C. & Edwards L. "Defamation and the Internet: A Case Study of Anomalies and Difficulties in the Information Age" (1996) 10 (2) International Review of Law Computers and Technology.

55 A federal district court in Florida has held that a BBS operator is liable for infringing Playboy's copyright distribution and display rights by making available Playboy pictures in machine readable format. The interesting part is that the operator alleged that a subscriber had uploaded the files without the operator's knowledge, and the files had been removed as soon as the operator was aware of their presence. See Playboy Enterprises, Inc. v. Frena, No. 93- 489-Civ-J-20 (D.C. M. Fla. 12/9/93).

56 Available from HMSO, price £3.75.

57 Stratton Oakmonth, Inc. and Daniel Porush v Prodigy Services Co. & Others, New York Supreme Court 24 May 1995

58 Cubby Inc. v Compuserve (776 F. Supp. 135, 140.)

59 There are however moves afoot in the US to make service providers liable for carrying indecent material. An amendment to the recent telecommunications bill passed by the US Senate in June 1995 (the Exon amendment) would appear to threaten the common carrier status of service providers, although critics have noted that the language in which the amendment is couched means that it is likely to be successfully challenged on First Amendment grounds.

60 The law of Scotland differs. A brief synopsis of the salient points is given below. For further information, the reader is referred to Norrie, K. Defamation and Related Actions in Scots Law Butterworths 1995. In Scotland, there is not the same distinction between libel and slander. Rather, an action for defamation arises as a result of an attack on a person's character, honour and reputation, arising from a falsehood, the falsity of which is rebuttably presumed. If however, a statement cannot be proved to be defamatory by the pursuer, then an action for verbal injury may be available. This requires the pursuer to prove falsity, intent to injure, and actual injury. One of the more significant differences between English and Scots law in this area is that the defamatory statement need only be communicated to the pursuer for an action to lie (Mackay v McCankie (1883) 10 R 537) and justify an award of at least nominal damages. The purpose is to provide solace for the affront or injury felt. Thus a private e-mail communicating a defamatory statement from one individual to another may be actionable.

61 Dias & Markesinis Tort Law (1985: Oxford)

62 Theaker v Richardson (1962).

63 Dias & Markesinis op.cit n.52

64 Unreported.

65 The Independent, 22 August 1994 at 22

66 Financial Times, 19 July 1995. Waelde & Edwards note the following examples of libel actions taken or in progress: "Asda is reported to have paid a police constable 'substantial' damages when he discovered a message on the company's e-mail system alleging that he had fraudulently obtained a refund for a joint of meat about which he had complained (Daily Telegraph, 20 April 1995). Western Provident Association, a private medical insurer, sued Norwich Union in respect of allegedly defamatory comments made about WPA on their internal email system by unauthorised members of staff (Venables ed. Internet Newsletter, Nov/Dec 1995). The Times, 7 December 1995, reported that computer games designer David Braben was suing former colleague Ian Bell over statements made in an interview published on the Internet, that Braben had made a fraudulent copyright claim over computer games. The result of these last two actions is not yet known."

67 Guardian, February 15 1996, noted in Waelde, C. & Edwards L. "Defamation and the Internet: A Case Study of Anomalies and Difficulties in the Information Age" op.cit.

68 31 March 1994, Unreported. See 'Computer libel wins academic $40 000' M.Lang, The West Australian, 2 April 1994

69 Ibid

70 Or "jurisdiction hop" as it is also known.

71 Notably that state and federal enforcement agencies had brought actions against SCI as result of their direct mailing practices.

72 It should be noted that the suit against Meeks was filed in Ohio.

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