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Thread: Beware of what you say on the Net

  1. #1

    Exclamation Beware of what you say on the Net

    Don't even think that this apply to UK or HK only. SG got its own set of laws as well. Have a read .

    Taken from

    Beware what you say on the Net
    Updated: Monday, September 01, 2003 11:52 am
    By Peter Bullock

    Have you ever said something about someone you have been involved with professionally, and re- gretted it immediately? The chances are most outspoken people will find themselves in that territory occasionally. After all, the test for what is defamatory is somewhat vague: one formulation of it is 'would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally'. Whether a defamatory statement is actionable will depend on whether it is excused through privilege, justification or being true. However, depending on the size and make-up of your audience, it is probably the case the potential slander will not result in legal action.But e-mails and Web-chat place this type of off-the-cuff comments 'on the record' in potentially permanent form. On the Internet, it seems, people are even emboldened. Perhaps because of the veneer of anonymity or perhaps because, without being able to see their audience, they feel a need to shout louder, to express themselves more forcefully in order to be noticed.

    n the early days of the World Wide Web, many pioneers likened the Internet to a lawless place where 'freedom of speech' prevailed over responsibility for content, including defamatory, discriminatory or blasphemous messages. Of course it was wishful thinking, although the position was not tested in the UK until 1997 when the Norwich Union Insurance Co was ordered by the English High Court to pay £450,000 damages and costs, and to issue an apology to plaintiffs Western Provident Association for a libel circulated through Norwich Unionís e-mail system by one of its employees.It may be tempting to assume the inherent complexity of the Internet makes it more difficult to get a legal remedy for online defamation than for ìold-fashionedî libel. Not so-usually, if anything, the possible routes to legal enforcement are increased.Finding out who defamed youIf you have been defamed in an Internet chat-room, the author of the message is likely to be listed under a pseudonym. However, there are a number of ways of taking the matter further.

    The organization providing the messaging service may hold records (in the form of subscription details) on its customers sufficient to match the pseudonym to a name and address. Often though, one can participate in a chat-room without registering or giving details such as 'Daffy Duck' or 'Disneyland'. Even in those cases you may not be anonymous, because the PC you use to send your defamatory message will leave its Internet Protocol (IP) address with the ISP hosting the service (which may or may not be the same organization as the one providing the messaging service).As was found in e-silkroad vs Icered case, the Hong Kong Courts have the power to order the ISP and/or messaging provider to deliver up the details of those posting anonymous Internet messages (including IP addresses) where there is prima facie evidence of defamation. This can be done as a preliminary step in a libel action against the ISP and/or messaging provider, to which the hitherto anonymous individuals posting the messages can be joined later.

    With a little IT-savvy investigation it is usually possible to trace the IP address to the organization owning the PC. Hopefully for the claimant, it is somewhere other than an Internet café.Suing your ISPGreat sport can be had in blaming the ISP hosting the service through which the defamatory material is sent for libel. ISPs claim, often with justification, that they should be treated like a Post Office carrying an envelope containing defamatory material (not liable for its contents) rather than an editor of a magazine repeating the defamatory material verbatim (who would normally be liable). Why should an ISP ever be liable for the content of its servers when it is not practically feasible for it to check all the messages it handles?

    In the UK, as in many other jurisdictions, legislative steps have been taken to protect ISPs from these sorts of claims. By section 1 (3)(e) of the Defamation Act 1996 'A person shall not be considered the author, editor or publisher of a statement if he is only the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control'.Furthermore, by section 1 (1) a person has a defense to defamation proceedings if (1) he was not the author, editor or publisher, (2) he took reasonable care in relation to publication and (3) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

    n brief, this will generally absolve an ISP (who does not also conduct an editing function) from liability unless and until he is made aware of the defamatory statement (usually by a 'take down' request by or on behalf of the intended complainant). At that point he has to act quickly to investigate the matter and, where the statement is defamatory to remove it from public access (and perhaps block further messages from its rogue subscriber). In Godfrey vs Demon Internet, a UK case, the ISP was slow in removing a defamatory message and, while it was found not to be a publisher (under section 1(3)(e) of the 1996 Act) it was not entitled to the protection of section 1 as it had not taken reasonable care.The difficulty for ISPs and the providers of messaging facilities in Hong Kong is that there is no Hong Kong equivalent of the UK's Defamation Act 1996. The Icered case not having gone forward to trial on the issue of whether Icered and/or their ISP were guilty of defamation as publisher, ISPs will need to be doubly wary of the suitability of messages posted on services they host.

    In jurisdictions where this point has been decided by the Courts, the usual line taken is to penalize those hosting services (which include defamatory content) if they profess to take an editorial role, whether by a monitoring content or by facilitating debate.Where should I sue?Given that, unless blocked by national governments, a message lodged on an Internet site is accessible by servers anywhere in the world. Online defamation, thus, can give rise to many questions of jurisdiction. In the case of material uploaded to the Internet by an individual in Australia to a site hosted in Hong Kong, defamatory of a person with a significant reputation in Germany, but who accesses the message while holidaying in the UK, where should or could an action for defamation be started?

    Add to this, different interpretations in different jurisdictions as to what is defamatory, and markedly different levels of damages awarded between jurisdictions for the same 'degree' of defamatory statement, and the prospects for forum shopping are enormous. Indeed it may often be the case that more than one territory's courts would readily accept jurisdiction over the same case.Claimants will generally wish to take proceedings in the Courts of their home territory, and where they have the greatest 'reputation'-as loss of reputation is the factor giving rise to the greatest damages in defamation cases. This 'pro-claimant' stance was allowed in the recent case of Dow Jones vs Gutnick, where a High Court in Australia allowed a claimant with a reputation in Australia to issue proceedings in Australia against an American based news agency for an article uploaded in the US. The claimant had downloaded and read the article in Australia.

    Copyright (c) 2003 IDG Communications (HK) Ltd
    Last edited by ninelives; 24th September 2003 at 09:47 AM.
    Objection !!!

  2. #2
    Senior Member
    Join Date
    Feb 2002
    Perth Australia


    Quote Originally Posted by ninelives
    Don't even think that this apply to UK or HK only. SG got its own set of laws as well. Have a read .Copyright (c) 2003 IDG Communications (HK) Ltd
    Ninelives, a good and timely post indeed.

    Now perhaps people will understand why on IRC and elsewhere I never name my clients

    Of interest is that back in the pre-public access to the Net days when BBS's ruled the dial up world, the Australian courts ruled BBS Sysops (owner/operators) were liable for the content of email sent from their fido nodes. BBS's were deemed to be a publisher and as such were responsible for any posts that were legally iffy.
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