This article from yesterday’s Sydney Morning Herald raises the tantalising question of under what circumstances defamation laws should apply to statements published on the WWW, or whether in fact they should apply at all.
As you can see from the article, this is particularly relevant to the US, as currently a great deal of material published on the WWW is protected by the “free speech” provision of the US constitution. Should those provisions extend worldwide, or should they be expanded even further so that essentially nothing published on the WWW would be actionable?
IIRC there was a case in the US which addressed the question of whether the access-provider could be sued for libel posted on the web. To the best of my memory, the court held that the access-porovider was not liable.
Yes defamation laws should apply to the internet as well as other areas. I’m not a lawyer so I’m not really famaliar with the laws regarding libel so I’m going to go on principles here.
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Free speech doesn’t give you the right to yell “fire” in a crowded theater. Can you imagine the damage done to a persons reputation if someone created false information about him? This can have profound affects on someone’s professional and private life.
Well I’d like to see the whole world with free speech laws similiar to that of the United States. But I fail to see how that’s possible any time soon. The bigger issue of the article you linked to was about suing someone in Australian court over what was published on an American web server. Nobody is seriously considering removing someone’s ability to sue based on slanderous statements.
The problem in a distributed information environment becomes one of jurisdiction. If a server in Bali posts The Protocols of Zion should the website owners be liable for prosecution in Israel?
Barring a worldwide treaty establishing a single set of infractions, standard of proof, mechanism for prosecution, etc., I don’t think the Internet will ever be free of defamation and libel. That should not prevent nations from applying their sovereign laws to any entities that host material on servers within their borders, of course.
Perhaps the laws of the nation where the content poster resides should apply, regardless of where the servers are located? Example: Someone living in Isreal posts the Protocols Of The Elders Of Zion on a server located in, say, the US. Their butt’s in a sling. Someone living in, say, Canada does the same, Isreal has to take civil action against the poster in Candian court if they want it gone. Obviously, in the latter case, should our hypothetical Canadian anti-semite lose his case, and fail to have the content removed, there are further remedies available, such as contempt of court (or whaterver the local equivalent may be).
I’m all for holding ISPs blameless for the original posting of harmful material, but feel that once notified of content illegal in their country, that they’re bound to give it the whack, immediately. For objectional content of a civil nature, the ISP, IMO, shouldn’t be required to take action short of a court order, and even then the order should be aimed at the original poster, with the ISP acting as the agent of the court in removing the material.
Whatttya think? Too naive? Too simple? Or am I missing some important detail?
In the UK current legislation (in England and Wales and in Scotland) is unclear on the exact status of libel laws and the internet. Precedent, set by Godfrey vs Demon Internet, suggests that it’s a rough ride for ISPs and content providers. They have to be seen to take “reasonable care” and act immediately on receipt of a complaint, legitimate or not.
The problem is that the main defence under UK law is to claim to be an “innocent disseminator”: i.e. you just published it, you didn’t review it or edit it. Unfortunately the courts haven’t followed this through in practice, demanding that hosts monitor their content and take precautions. The end result is a Catch-22 situation: you’re expected to take reasonable care with what you host, but if you do then you’re seen as having reviewed it and therefore you’re not an “innocent disseminator”.
There are new EU regulations about to come into force that will offer added protection for ISPs, but they’re not foolproof either.
I’ll see if I can dig up some more on this. I’m writing an introductory white paper on internet law for work at the moment.
As for the OP, I’d have to agree that the chances of harmonising libel laws globally are next to none.
Important detail: Web sites such as http://www.anonymizer.com allow one to surf the web anonymously. Tracking down the geographic location of the libelous poster may not always be possible.
I’m curious what you think of the action referred to in the OP matt. It was clearly initiated in Australia because our defamation laws are much more likely to find for the plaintiff than the defamation laws of the US.
No matter how many hard copies of the Dow publication had been imported into Australia, their importation would not provide grounds for launching an action here - rather, in respect of the hard copies, any action would have to be launched in the US. Is downloading an article essentially different than importing it in hardcopy form? Should the location where the download takes place even be relevant?
If one truly wanted to be malicious, presumable one could make defamatory material available from a server located in a country which doesn’t legally recognise defamation…