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THE INTERNET LAW AND POLICY FORUM WORKING GROUP ON CONTENT BLOCKING

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D. Defamatory Material.

Australia

Under existing defamation law, the author of defamatory material transmitted on a computer bulletin board could be liable - Rhindos v Hardwick though this is a judgement of a single judge of the Supreme Court with no defence pleaded, which will affect its importance and as yet, remains untested. Defamation is also actionable wherever it is 'published', which means whenever it is available. This can lead to forum shopping and as New South Wales courts will allow a plaintiff to obtain damages in relation to publication in New South Wales and to publication elsewhere, New South Wales will be the forum of choice of Australian defamation plaintiffs.

In the case which could be said to apply to service providers, Urbanchich v. Drummoyne Municipal Council , a plaintiff claimed that failure to remove defamatory posters a reasonable time after being notified constituted publication by accepting responsibility for their continued publication, and although the judge, Hunt J, did not make it clear how the defendants might "accept responsibility" for continued publication, it provides a warning to service providers to remove alleged infringing material on notification.

There could also be circumstances where a service provider could be held liable for defamation for statements made by other persons unless he can prove he is an innocent distributor by showing that: it did not know that the material distributed was defamatory, that it did not know that the material was likely to be defamatory and that its lack of knowledge was not due to its negligence. No doubt service providers will be pursued for their deep pockets.

Italy

An email forum called Lisa has been removed from the computers of Bologna University, according to recent reports in the UK press. Apparently defamatory messages were being circulated to members of the list, concerning members of another online group. The university stated that its network belonged to the Ministry of Education and it was therefore obliged to exercise control. This would suggest that existing defamation law in Italy applies to the Internet.

United Kingdom

In English law, a "publisher" of a libel is responsible even if he did not know that the matter complained of was libellous, whereas a "distributor" is not liable if he did not know the publication contained a particular libel complained of, did not know that the publication was of a character likely to contain a libel and such lack of knowledge was not due to any negligence or recklessness.

Under the Defamation Act 1996, Section 1 provides that a person has a defence if he is not the author, editor or publisher of the defamation, took reasonable care in publishing it and did not know nor have any reason to believe that what he did contributed to or caused the publication of the defamation. Section(3)(b) further provides that a person will not be considered an author, editor or publisher if he is only involved in "processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form". Section (3)(c) excludes operators or providers of access to communications systems. Although the new act does not prevent liability arising, it does now provide a defence for access and service providers.

United States

To prove defamation in the US, the plaintiff must establish that the plaintiff was specifically targeted by the statement; the statement was false; the statement was published (a private email would not qualify but publication to a user group would); the plaintiff suffered damage as a result of the communication; the statement was published deliberately; and the defendant acted with the requisite degree of fault.

The first reported case involving an online service provider was Cubby Inc. v CompuServe Inc. in which it was decided whether an online service provider could be held liable for defamatory statements made by one of its subscribers. The decision rested on whether CompuServe was more akin to a "publisher", who is strictly liable or a "distributor" who is not liable as long as he neither knew nor had reason to know of the defamation. It was found that CompuServe was more akin to a distributor as it had little or no editorial control over its subscribers. As CompuServe had no knowledge of the defamatory statements, no liability was imposed.

In a more recent case, a slightly different approach was taken. In Stratton Oakmont Inc. v Prodigy Services, Prodigy, the service provider, was held to be a publisher of allegedly defamatory statements and therefore strictly liable for the statements of its subscribers, the reason being that Prodigy held itself out as having some kind of control over its bulletin boards that it was suitable for families and therefore in theory exercising some kind of editorial control, even though Prodigy argued that it did no checking at all in practice. The Court found sufficient evidence of continuing editorial control to hold Prodigy a "publisher". This case was heavily criticised because it discouraged ISPs from policing content. An ISP could monitor content but risk increased liability or it could ignore content and risk prosecution for transmission of obscene material.

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