Liability for defamation on the Internet has not just been isolated to individuals.
Corporations are liable for the actions of employees and would prove to be attractive targets for law suits due to their ability to meet the payment of damages. What can be ascertained from cases such as CompuServe and Prodigy is that users of the Internet can no longer ignore the legal implications of their actions. Like any other publishers with a potentially large audience, users must take care not to infringe the legal rights of others. If the Internet is to fulfil its potential of becoming a useful tool in society it will have to be adequately regulated. While appropriate to a certain extent in cyberspace, existing defamation law requires clarification as it applies to the Internet. While it may be appropriate that ISPs should bear some responsibility in instances where they have acted negligently or failed to exercise sufficient precaution, procedures such as the development and implementation of a code of conduct, in conjunction with clear guidelines as to user responsibility for defamatory material, insurance policies to guard against liability, employee indemnities and clear guidelines, may assist in checking against instances of defamation on the Internet. Rather than trying to "pigeonhole"
instances of defamation which occur on the Internet into existing legal paradigms, New Zealand courts need to recognise that the Internet provides a unique type of service which does not always fall into the neat rules governing other information carriers such as newspapers, television and radio. While this is perhaps the best solution, it will admittedly be difficult to achieve given the dynamic and changing characteristics of the Internet.
Articles & Texts
Arnold-Moore, Timothy "Legal Pitfalls in Cyberspace: Defamation on Computer Networks"
(1994) 5 Journal of Law and Information Science 165.
Barnard, Laurette "New Zealand report on rules for declining to exercise jurisdiction in civil and commercial matters: forum non conveniens, lis pendens" (Wellington, 1994).
Bartlett, Peter "Internet - the legal tangle" (1995) 11 Computer Law & Practice 110.
Braithwaite, Nick "The Internet and bulletin board defamations"  New Law Journal 1216.
Davies, Clive "Law and the Internet" (1995) 11 Computer Law & Practice 106.
Dicey & Morris The Conflict of Laws (11 ed, Stevens & Sons Ltd, London, 1987).
Dooley, Stephen "Dealing with defamation on the internet" (1996) 140 Solicitors Journal 96.
Goddard, David "Conflict of Laws - The International Element in Commerce and Litigation"
(New Zealand Law Society Seminar, Wellington, 1991).
Halsbury's Laws of England (4 ed, Butterworths, London, 1979) vol 28, Libel and Slander.
Halsbury's Laws of England (4 ed reissue, Butterworths, London, 1996) vol 8(1), Conflict of Laws.
The Laws of New Zealand Volume 7, Conflict of Laws: Jurisdiction & Foreign Judgments (Butterworths, Wellington, 1996).
O'Gorman, Stephen "Defamation and the Internet" Internet Australasia (November 1995, Volume 1, Issue 11, p 28).
Scott-Bayfield, Julie "Defamation update" (1995) 139 Solicitors Journal 189.
Siderits, Matthew C "Defamation in Cyberspace: Reconciling Cubby, Inc v CompuServe, Inc and Stratton Oahnont v Prodigy Services Co" (1996) 79 Marquette Law Review 1065.
Sykes & Pryles Australian Private International Law (3 ed, The Law Book Company Ltd, Sydney, 1991).
Taylor, Jeffrey M "Liability of Usenet Moderators for Defamation Published by Others:
Flinging the Law of Defamation into Cyberspace" (1995) 47 Florida Law Review 247.
Todd, Stephen (ed) The Law of Torts in New Zealand (2 ed, Brooker's Limited, Wellington, 1997).
Wiggin, Peter Wired Kiwis: Every New Zealander's Guide to the Internet (Shoal Bay Press, Christchurch, 1996).
Table of Cases
Cubby, Inc v CompuServe Inc (1991) 776 F Supp 135.
Mount Cook Group Ltd v Johnstone Motors Ltd  2 NZLR 488.
Rindos v Hardwick (Unreported judgment 940164, 31/3/94, Supreme Court of Western Australia, Ipp J).
Stratton Oakmont v Prodigy Services Co (1995) 23 Media L Rep 1794.
Thompson v Australian Capital Television (1994) 54 FCR 513.
Defamation Act 1992
Cumbow, Robert C & Wrenn, Gregory J "Reputation on (the) line: defamation and the Internet" http://www.perkinscoie.com/resource/cumb026b. htm
Eden, Eric "Libel & Defamation in the Information Age"
Johnson, Bruce E H "Hammering the Square Peg: Speculations on Defamation and the Internet" (from First Amendment Law Letter, Autumn 1996)
Muth, R Timothy "Old Doctrines on a New Frontier - Defamation and Jurisdiction m Cyberspace" http://www.rbvdnr.com/lit/defame.html.
Sim, Peter "Electronic Libel: Responsibility of BBS Operators" October 3, 1994 http://www.mbnet.mb.ca/-psirn/libel.htrnl
The Standard of Care for Electronic Information Providers http://ww.ljx.com/public/firms/satterlee/standard.htrnl
The Prodigy case is not easily distin- guishable from Auvil. In both cases the defendant companies could, in theory, exercise editorial control over material they transmitted, and both had exercised that control in the past. In both cases, the volume of information meant that it was not possible to vet all the material trans- mitted. It is also important to note that the editorial function of Prodigy ' s 'Board Leader' only operated once ,the message was on the bulletin board, ie once it had been published . Prodigy is widely expected to be reversed in the near future.
The English position The liability of online service providers has not been raised as an issue in the UK, but there has been considerable discussion in legal journals as to whether they are publishers of material on bul- letin boards, ie they might be found liable for defamation with- out fault, or are innocent dissemi- nators of the material, just as a street vendor is an innocent dis- seminator of the material in the newspapers he sells. The position of an innoc~ disseminator is equivalent to that of a distributor in the US.
Various online service providers have adopted a hands- off approach to policing their sys- tems to ensure that they are viewed as a Cubby-style distribu- tor or innocent disseminator rather than as a Prodigy-style publisher. This laissez-faire atti-
tude can only hinder the expansion of the information superhighway and may well lead to liability for defamation rather than avoiding it.
The defence of innocent dissemination has three elements when applied to a net- work operator: the operator
1) did not know that the network/bulletin board contained the libel complained of;
2) did not know that material on the net- work or bulletin board was of a nature likely to contain libellous material; and 3) did not lack knowledge of 1 and 2 above because of any negligence on the operator's part. (See Vistelly v Mudies Select Library Ltd [ 1900) 2 QB 170 for the original principles.)
If an operator becomes aware that a bul- letin board is likely to contain defamatory material it will not be able to use this defence. However, if an operator closes its eyes to the nature of the material on its bulletin boards or networks, it will proba- bly not be able to escape liability. An oper- ator which states that it does not vet material posted on its network will find it
difficult to show that it was unaware of defamatory material being posted without any negligence on its part. A service provider will be in a much better position if it clearly reserves the right to edit mater- ial which is offensive, obscene or defama- tory, whilst cleaily stating that its resources are such that it is possible to view only a tiny fraction of messages posted, and that it is the individual user's responsibility to ensure that messages do not infringe the provider's guidelines.
(Obviously the system provider will have to have an appropriate set of guidelines.)
Had Prodigy not expressly taken on responsibility for messages appearing on its bulletin boards, the case might well have been decided differently.
The sensible solution lies between the extremes of claiming to vet all material posted and refusing to look at any of it.
The adoption of either extreme as a policy is likely to result in liability for defamatory material posted on a provider's system.
Proposed new law
In July 1995 the Lord Chancellor's Department published a draft Defamation Bill reforming, amongst other areas, the defence of innocent dissemination. These reforms are in the light of advances in technology since the defence was first con- sidered. The relevant clause reads:
1 (1) In proceedings for defamation it is a defence for a person to show that he was not primarily responsible for the publication of the statement
complained of and that he did not know, and having taken all reasonable
care had no reason to suspect, that his acts involved or contributed to the publication of a statement defamatory of the Plaintiff.
( 4) The following shall not be regarded for the purposes of this section as primarily responsible for the
publication of a defamatory statement - ( c) in the case of a defamatory statement published by electronic means, a person involved only -
(i) in processing, making copies of, distributing, or selling any electronic medium in or on which the statement is
(ii) in operating any equipment by means of which the
statement is retrieved, copied or distributed.
The draft Bill goes on to state that, in determining whether rea- sonable care has been exercised, the courts are to pay attention to, amongst other things, the defen- dant's responsibility for the con- tent of the statement or the decision to publish it. This will be minimal for the average service provider.
This defence is not intended to protect those who have cause to know that they are publishing defamatory material: this will include those who refuse to adopt a sensible attitude to policing their networks. Clearly no blanket immunity is intended for service providers, nor would one be appropriate . The draft Bill encourages sensible use by individuals and sensible policing by service providers, but without imposing an obligation to censor or conferring a right to do nothing, and requires that the service provider shows that it was not responsible for the libel, had no knowledge, and was not negligent.
The draft Bill adopts the position that the transmission of a defamatory statement over a computer network amounts to libel.
This agrees with the view expressed at the beginning of this article and with the US case law.
One area left open by the draft Bill is clarification on where the publication of libellous material takes place. The current position under English law is that publica- tion occurs in the place of communication rather than creation; and a libellous e-mail message received in Swindon from a source in Stockholm will be subject to English libel laws •
Stephen Dooley is a member of the IT Department at Morrell, Peel & Gamlen, Oxford, e-mail: [email protected].
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