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"Defamation and the Internet : a tangled web of legal issues in a borderless environment"

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Among other things, the rapid expansion and newness of the Internet has led to a tangled web of legal issues. See further discussion in this paper and Part III of the Defamation Act 1992 for additional remedies. Using the example in Part I of this paper to illustrate defamation in the context of the Internet, there exists a statement that is clearly defamatory of the plaintiff.

It is this third ingredient of defamation that constitutes many of the obstacles likely to arise in an Internet context. If this happens, service providers will argue that they fall within the scope of the defense in section 21. Before the coming into force of the 1992 Act, this defense was known as the defense of fair comment.

Evidence of the truth of a statement of fact unrelated to opinion is not required. In terms of the scope of this document, a primary publisher will be in a better position to point out the truth behind an alleged defamatory statement. Similarly, there is another problem with fair opinion defense in that the statement is not that of the ISP, but rather is that of the original author.

IV POLICY ARGUMENTS FOR AND AGAINST LIABILITY FOR DEFAMATORY STATEMENTS ON THE INTERNET

Situations like the one just described with no safeguards in place leave employers vulnerable as the owner of the computer in defamation proceedings. The question to be decided is whether an ISP can be characterized as part of the publication process and therefore liable as a party to the publication. I would argue that where information from a third party is made available via the Internet by an ISP and there is no direct control over the information that materializes, the ISP should then be categorized as a distributor within the principle of innocent distribution in section 21 of the Act.

For example, placing restrictions on booksellers gives them a responsibility to be aware of the contents of all the books they own. CompuServe contested their position as a distributor and not a publisher, denying liability since they neither knew, nor had reason to know, of the defamatory statements. In this decision of the High Court of Australia, the majority upholds the proposition that "transmitters" of information are required to exercise due care when transmitting material that is likely to be controversial and/or defamatory.

The decision to take a hands-off approach may therefore have implications for other aspects of the law, depending on whether it would be reasonable to expect an ISP to exercise certain forms of control rather than none at all. For parties that fall into this category, liability for defamatory statements only applies in cases where the party knew or had reason to know of the existence of the defamatory material. Because the fundamentals of the Internet are so innovative and so different from traditional entities to which defamation laws could be applied, simply mapping the existing legal framework (which does not specifically address cyberspace) on the Internet is problematic.

Given the increasing availability and expansion of the Internet, and the impracticalities that exist regarding the degree of knowledge that ISPs must have, it is suggested that it is a heavy burden to place responsibility at the feet of service providers for all material that freely available. via Internet. The borderless nature of the Internet means that cyberspace raises critical questions about conflict of laws, jurisdiction, choice of law and forum shopping. In particular, it can be argued that the global nature of the Internet has paved the way for forum shopping.

Conflict of law is about cases with a foreign element; that is, contact with a legal system other than that of the country in question. Such contact, in connection with defamation and the Internet, exists because the tort was committed there.34 Conflict of law is a necessary part of the law in any country. According to the High Court Rules, service abroad is permitted without the permission of the court.40 As to defamation on the Internet, Rule 219(a) permits “statements of claim.

Rule 219(a) will apply in the case of alleged defamation as any publication on the internet can appear simultaneously on New Zealand computer screens and therefore communication of the defamatory material will take place in New Zealand.

V REFORM PROPOSALS

Similarly, on the Internet there is a form of "netiquette," or protocols that the Internet community agrees upon that govern how users interact with the system and each other. Alternatively, and perhaps a more appropriate approach, is vindication through the Internet forum itself in the form of a right of reply. Not using capital letters in internet communications is an example of this type of rule - capital letters indicate SHOUTING at someone.

While self-regulation can be useful, it is likely to be useful only to a limited degree because Internet self-regulation is unlikely to be able to adequately redress or vindicate the genuine grievances of innocent people who are unjustifiably damaged. In addition, if online defamation were to become a new common law offence, it would be a challenge for those involved in its development to reconcile two competing interests. As noted by Dooley,50 the bill encourages reasonable use of the Internet by individual users and ISPs without imposing an obligation to monitor.

The initial starting point for internet defamation regulation is the development of a realistic and enforceable code of conduct for internet service providers. An international uniform code of conduct adopted by all ISPs would provide a strong front for acceptable standards on the Internet. A discovered violation of the code of conduct may result in the loss of the right to access the Internet or other appropriate punishment.

Although this is only a very basic outline of what might be included in a code of conduct, a framework similar to that of broadcasting standards based on these guidelines can help to eliminate or at least reduce the occurrence of defamation on the Internet. Unlike traditional methods of communication, ISPs have less ability to review the content of material posted on the Internet due to the characteristics and speed of the Internet, as described earlier in this document. Home pages or other easily accessible websites should also be available online and a clear statement that the Internet should not be used to publish defamatory material should also be observed.

Employers should also consider similar actions with employees if their place of business involves the use of the Internet. Although not a solution to eliminating defamation on the Internet, the methods described above are a small step in the right direction and attempt to place responsibility on individual Internet users as opposed to service providers.

VI CONCLUSION

In both cases, the defendant companies could, in theory, exercise editorial control over the material they broadcast, and both had exercised that control in the past. In both cases, the volume of information meant that it was not possible to verify all the material transmitted. The position in English The liability of internet service providers has not been raised as an issue in the UK, but there has been considerable discussion in law journals whether they are publishers of material on bulletin boards, ie. may be found liable for defamation without fault, or are innocent distributors of material, just as a street vendor is an innocent distributor of material in the newspapers he sells.

The position of an innocence distributor is equivalent to that of a distributor in the US. This laissez-faire atti- . tude can only impede the expansion of the information superhighway and may lead to liability for defamation rather than avoiding it. However, if an operator turns a blind eye to the nature of the material on its bulletin boards or networks, it is unlikely to escape liability.

An operator who declares that he does not monitor material posted on his network will find it. difficult to demonstrate that she was unaware of the posting of defamatory material without any negligence on her part. A service provider will be in a much better position if it clearly reserves the right to edit any material that is offensive, obscene or defamatory, while clearly stating that its resources are such that it is possible to edit only a small part of the content. to look at. posted messages, and that it is the responsibility of the individual user to ensure that messages do not violate the provider's guidelines. These reforms are in light of technological advances since the defense was first considered.

In defamation proceedings it is a defense for a person to show that he was not primarily responsible for the publication of the statement. complained and that he did not know, and taking it all reasonable. caution had no reason to suspect that its actions involved or contributed to the publication of a defamatory statement of the Plaintiff. The bill goes on to emphasize that, in order to determine whether reasonable care has been exercised, courts must pay attention to, among other things, the defendant's responsibility for the content of the statement or the decision to publish it. The bill encourages reasonable use by individuals and reasonable policing by service providers, but without imposing an obligation to censor or giving the right to do nothing, and requires the service provider to show that it was not responsible for the defamation, had not knowledge, and was not negligent.

The current position under English law is that publication takes place in the place of communication rather than creation; and a defamatory email 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, email: [email protected].

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Table of Cases

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Table of Cases

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