What then are the matters which need to be considered in regard to an action for libel?:
It seems likely that the courts in the UK would be inclined to accept that it is possible to libel individuals on BBS, mailing lists or WWW pages by posting untruthful and damaging statements about them in such fora. Thus a UK citizen posting untruthful and damaging statements about another UK citizen, on a list, BBS or WWW page where such a message would be read by others in the UK, and where this would be damaging to the plaintiff's good name or reputation, would almost certainly be liable to an action for libel. The issue of a UK citizen libelling a US citizen is perhaps less clear as this might be considered by the courts to be out of their jurisdiction. However in the recent UK case Godfrey v. Hallam-Baker (ongoing) where the claim is for damages for libel or alternatively slander regarding seven Usenet messages posted in 1993, the defendant apparently works at CERN.(The Independent 22/8/94 at 22).
As all 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 C forum
The Australian case of Rindos v Hardwick (31 March 1994, Unreported (6)) 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 worldwide. 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 judgement 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 worldwide 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.
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 say, 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:
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?
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, for instance, 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(8). 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(9). 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.
These are topical issues in the US at present and I would suggest should be considered seriously in the UK as well. It appears that most UK Universities 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.
In general, most WWW sites, particularly those based at academic institutions are keen to avoid any problems with hard or soft core pornography, and a great deal of control can be exercised by peer pressure from other institutions without the aid of the law, even where the law of the country involved does not forbid such material. For instance, WWW servers at the University of Delft (hard & soft core) and the Conservatoire National des Arts et Metiers (CNAM) (soft core), which carried such pictures downloaded by automatic newsfeed from Usenet groups, have both been forced to remove the offending material due to pressure from their governing bodies.(l4) The US may be more problematic in this regard due to the First Amendment issues surrounding the area.(15)
In terms of UK institutions, the solution is similar to that which has been outlined for libel above, in that institutions may make up their own rules to govern the content of WWW home pages, and can, via this route, explicitly forbid certain material being published on pain of expulsion from the system and perhaps even the institution.
It has also been suggested that publishing material which might be used in order to breach computer security or to facilitate unauthorised entry into computer systems may be caught by the Computer Misuse Act 1990, in terms of conspiracy to commit an offence. This does not yet appear to have been successfully tested in court.
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