Slashdot Mirror
Publishing Now Counts As Now
wik writes "The New York Times reports that the statute of limitations for defamation is one year from the date of posting a page on the web. The courts had to decide whether the posting date or the last download date of a web page constitutes the publication date."
They're going to have a bit of a problem determining the posting date, as the date header in the http response can quite easily be forged.
I suppose this is where things like Google cache and the Wayback archive come in useful, (IANAL) but it seems to me that for them to be trusted, further legislation and rulings would be necessary to give them reliable legal status.
And, like, what if someone hacked them? These things need to be considered!
I applaud the court for this decision. If the date of publication changed everytime somone new viewed a web page, then the statute of limitations would be rendered meaningless. Defamation suits are usually just slapp suits anyway. The fewer of them we have wasting the courts' time, the better.
The Uncoveror: It's the real news.
Unless I'm missing something, if I want to defame someone in the US now, all I have to do is upload the material to a web site, and wait 12 months before I give anyone a link to it.
The situation on the web is rather different from with traditional publishing, since it is much easier for web pages to be "published" well in advance of when any significant number of people see them.
If there is to be a 12 month statute of limitations, I think that the window should begin *when the plaintiff becomes aware of the material*, not when it was actually published.
Tarsnap: Online backups for the truly paranoid
A YRO decision that I actually agree with? But seriously, I think that this one is actually coherent. If you post something defamous, and (assuming it later gets yanked), the law should judge it from the time you commited the *act* of uploading the document from the web, not from the time someone else saw it.
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
So the trick is to post your defamatory content on an obscure website, and let it sit there for a year before linking to it from a popular website.
Interesting. I bet there are 'teams' out there already setting up the obscure websites.
Does the httpd on my dialup NetBSD box count as a 'website' in this ruling? I'll just park my slander there for a year to let it ripen.
Is the publication date of a Book, the day it first went to press or the day the last copy was sold. I'm confused.
If the publication date of a news paper the day it was published, or the last day that someone wrappes up a china set with it before mnoving house.
Oh please help me clear my confussed mind.
thank God the internet isn't a human right.
So if I wish to publish something that I'm concerned will get me slap-suited, such as a critique of a leader of a well-financed cult, can I bury it in my website in such a fashion that search engines are unlikely to find it, but a visitor could still stumble across it, wait a year, then post it on the front page?
What is a good method for making a document technically available, but unlikely to be spidered. Too many engines ignore spider.txt. How about placing it behind a form entry?
It's always nice to see common sense prevail.
Although this does raise issues of how to authoritatively determine date of posting, the alternative would effictively void any statute of limitations.
I am concerned about any program, any piece of hardware, any treaty, any law that treats me as a consumer, not a citizen
The whole issue of 'publication date' is very slippery online. With books or newspapers, it's easy, but on the net, it can be a very difficult issue.
/. picks it up and adds a newsitem about it - complete with a link to the text. Is that publication? By me or by /.? Can I get into trouble for something /. does? Can /. be sued for defamation by providing that link, even if the statute of limitation has elapsed on the text for me?
/Janne
Assume I've written a rant where I accuse CowboyNeal of secretly harboring immoral thoughts about herring. I put it up on my private web page. That should be the publication date, no? Well, maybe. Nobody could find it as there are no links to it, and I don't tell anybody about it.
Suddenly Google gets hold of the link. Is that the publication date, now that people can actually find the page? On one hand, the text may have languished on a nowhere website for ten years, and I've totally forgotten about it, so surely I can't be punished for google finding it ten years after it being written? On the other hand, is it considered published (or even defamation) if nobody can find it unless I tell them where to look?
It all erupts into a huge uproar; CowboyNeal denies everything and maintains he has unhealthy obsessions only for salmon, but never, ever, herring. Of course
This is just scratching the surface, of course; the problem here (as with so many aspects of the net) is that concepts that are clear and workable offline do not translate well online.
Trust the Computer. The Computer is your friend.
Just because something may be available on the web for years to come, doesn't make that any different from typical print publications. I can go to my library and look up 20 yr old newspaper articles. They're still available, so why should accessing webpages be any different? Publication dates means the date that the article was PUBLISHED. It doesn't make ANY difference when someone actually READS it.
Now, I wonder what effect this would have if an article was changed after the initial publication date. This is a possibility of all digital news, where papers are pretty well stuck with what they print.
-Restil
Play with my webcams and lights here
I am glad that they decided this way. When a newspaper is published, do they go by the date of publication or the most recent tome someone bought a copy? Recently things have been more harshly regulated simply because they were electronic; I am glad that that isn't the case here. Maybe we can continue to get some sanity in the courts. Just a thought. :>
"Never, never suspect the dreams within the dreams of dreaming children." ~The Amazon Quartet
Well, you could make a stab at proving that the date of posting was at or before a given date by displaying the page in a browser and photographing the display with a copy of today's newspaper next to it.
The trouble is, you could load the page from a local hard drive and then just type in anything for the URL in the Explorer or Netscape address line.
It's difficult to see how you could ever have ironclad proof.
DARK HELMET: What the hell am I looking at? When does this happen in the movie?
COL. SANDERS: Now. You're looking at now, sir. Everything that happens now is happening now.
DARK HELMET: What happened to then?
COL. SANDERS: We passed then.
DARK HELMET: When?
COL. SANDERS: Just now. We're at now, now.
DARK HELMET: Go back to then.
COL. SANDERS: When?
DARK HELMET: Now!
COL. SANDERS: Now?
DARK HELMET: Now!
COL. SANDERS: I can't.
DARK HELMET: Why?
COL. SANDERS: We missed it.
DARK HELMET: When?
COL. SANDERS: Just now.
DARK HELMET: When will then be now?
COL. SANDERS: Soon
Someone writes something in a newspaper, its printed on 1/1/2001. Some 3/3/2002, its 14 months old. Someone buys a copy of the paper off a friend that has kept it, and reads it.
Does that change the date of publication?
You guys might remember the DMCA Threats I received over my program embed (for TrueType fonts). I think this case has some interesting consequences for my fight, because I published my program in 1997 and haven't modified the page since. 1997 was before the DMCA became law. If in fact that publishing was found to be the only act of "trafficking", then they would not be able to sue me because of the ban on ex post facto laws in the constitution.
Of course, that defense is much weaker than the dozens of other reasons why their threats are totally stupid. ;)
Not really. By posting it encrypted you didn't "publish" it, but by giving out the key, you did... and that is when the clock starts.
What I'm kind of curious about is how they are ever going to prove that the web page WAS in fact published. It would be really easy to download the front page of any web site, put in some defamatory comments, and then claim that it was published on such and such date. Don't get me wrong, I actually think this is one of the few YRO that strikes me as a step in the right direction, but I fail to see what the definitive criteria for establishing publication is. For someplace with lots of readers (like slashdot), it's easy, as there are plenty of witnesses, but something tells me not too many people visit or could vouch for my website on a regular basis. Any ideas on what you can do to protect yourself?
What about, for instance, weblogs, especially those powere dby Blogger? When Blogger "publishes" a weblog page, the page may have several days of posts on it - so the original post may have been uploaded to the server a month ago, but it just got re-uploaded when the user published a new entry.
Hmmm.
Karma: T-rexcellent.
It's published when a third party becomes able to view it. Your intentions are irrelevant. Subsequently, someone may read it. If they do, and they understand it, and it is true, and it is less than a year since it was published, and various other conditions hold, then your ass can be sued!
Just to play devil's advocat, here is the oposite side of the argument.
This question is made more dificult because the statute of limitations on libel is so small partialy because publishing is considered a timely issue. An article in a paper published a year ago is less damaging to you than one published yesterday.
But on the internet, a webpage published a year ago is still there. It still comes up in search engines today, and is just as potentialy damaging as it was a year ago.
How would I know when I have been defamed (or slandered, libeled, etc.)?
Do I have to Google myself?
I've lived a full life, so far. Attended college. Worked at a number of high-tech companies. Participated in several civic organizations. Traveled in Europe. Though I've tried not to, I'm sure I've ticked some people off along the way.
Now let's imagine that one of my former acquaintences gets a computer, creates a personal web page, and still holding a grudge, defames me on their web site.
My name is relatively uncommon, yet Google found well over 600 pages with my name on it (I didn't even know I'd been to Antarctica! =)... and that's for just one form of my name (First name, Last Name); I'm sure there'd be more if I searched for other variants (e.g. "Marty" instead of "Martin", include middle name, common misspellings of my last name, etc.) I would need to examine every one of these pages to see if any defamatory material had been published.
Consider, too, what happens if my career path changes so that I came to have a highly-visibile role as, say, a CEO, Senator, recognized industry expert, or talk-show host? Far more references to my name that I'd have to search for defamation. Ditto if I were a witness to a gruesome crime or accident.
In the past, publication was difficult and required relatively large amounts of money (for the printing press, book binding machine, etc.) and specialized expertise (e.g. typesetting). That is no longer the case. The first liberating step was desktop publishing; now there's the World Wide Web. What will another 10 or 20 years bring? Consider a groundswell of interest in weblogs facilitated by text-to-speech web publishing using a cell phone for input.
IMHO, I think the court ruled as best they could in light of the circumstances of this particular case, but I can't help but think there's a far larger problem here that needs to be adressed.
I am assuming that the person you wrote the letter to is the defamed one (otherwise, they are a third party, and none of what you wrote makes sense). And yes, in that case, the author of the letter didn't take enough care of it. Tough! But in the case of your original "workaround", all you can do is publish it encrypted, and give the key to your victim (and no-one else). So it doesn't really matter if you wait a year or not, because if only the second party reads it, it is not defamation.
Most things published on the Web have about the same credibility level and duration as something that someone said in the bathroom to someone at the urinal next to them.
Were I a public figure defamed on a website, I'd simply ignore it. Suing the person could give them more publicity, and often more good is gained by not giving rumors credibility by fighting them.
That having been said, if you're *really* concerned, there are services out there that specialize in looking for mentions of your name or company so you can tell what people are saying about you.
What we call folk wisdom is often no more than a kind of expedient stupidity.-Edward Abbey
- Make a false statement, either recklessly, with malice, or negligenly (in the case of a private figure).
- Publish it to a 3rd party. If I send you a letter, saying that YOU are are a convicted child molester, it does not count because it is not to a 3rd party.
- And it must cause harm.
My summary judgment motion details the requirements of libel, under Mass law.Anyways, for most torts, the statute of limitations runs when the plaintiff knew, or should have known of the act/harm.
Fight Spammers!
Person B is a third party. Opinion or not, if A tells B something defamatory about C, then C can sue A (if all of the other conditions are met, blablabla). In addition, if B tells another third party D in such a way as can be called "republishing" (which I won't expand on here), C can sue B (but not D).
Now, B might never let it be known that A did the deed, in which case C would probably not find out, and A would probably be safe. If B acted on the information, and C became suspicious... I could go on. But the point is, C was defamed. The letter was published when A sent it to B.
Now, you say the letter was stolen, by villian E, so in fact B didn't get it. Well, that is just tough. It doesn't matter who received it, as long as it wasn't C and only C. E takes the place of B.
I have a feeling I didn't make that as clear as it could be... Hehe... Sorry! And don't forget that IANAL!
The publication date in 'kaldifjördur' is the original date of publication in 'kaldifjördur'. The publication date everywhere else is when you started selling it everywhere else. You're protected by the original date of publication, methinks, only if the victim read the offending stuff from a book originally sold in 'kaldifjördur'.
< begin something that isn't directed at you specifically but is just something I wanted to rant about... Sorry! And I have had four pints of Kronenbourg but I still believe passionately about what I am saying>
That would be trying to get around the law. Judges are not stupid. Let me say that again. OK. I said it but I didn't type it again. That sort of scam is about as transparent as vacuum (element zero). Look. It is eminently possible to run rings around lots of laws. Sometimes. But if you do something like you proposed, you would be bang to rights. People have anticipated your wriggling. It's not big and it's not clever. In this case, you should have noticed that the judges made an excellent decision. It really is. How can I make this clear? OK. In the cut and thrust of internet debate there can be casualties. And sometimes, things that are said are not what a judge would consider actionable. But sometimes people diss each other in such a way that is totally out of order.
This should be actionable. The technical side that you mention is a red herring. Listen. The fact that it was on the internet is irrelevant. I know that the internet is different to, for example, newspapers, in some ways. But in the case of deformation it is not different. It TOTALLY does not matter what medium you use to disseminate your libel. The information is the issue. You say something about someone which is untrue, that can seriously hurt someone, and you shouldn't be able to get away with it. Imagine if the tables were turned and someone said something about you. Imagine that as a result of that, no-one would employ you (for example). Wouldn't you want to do something about it? Of course you would. That is the basis of the law in this area. It is not right for people to go around dissing people for no reason.
Oops. I hit Submit instead of Preview. Why "oops" you say? Because I have more to say... Sorry. But it specifically that you said "Yet another sign that untechnical people should not decide the fate of the technicaly inclined." And my thesis shall be that it is not about technical issues versus other issues. :) ruled that Demon, by running a Usenet server, "republished" the original (to my mind, anonymous but undisputed) libel. The decision of the judges in the case referenced in this story would seem to pose a problem to Dr. Godfrey (whom many people disagree with); The original libellous post is actionable, whereas (insomuch as they did not overrule the earlier finding) mere maintenance of an existing post does not consitute an additional cause of action. /rant>
Now, I am reminded of a certain case involving Dr. Laurence Godfrey and Demon Internet. It was an extremely controversial case. Dr.Godfrey was libelled, inexcusably, by some (pseudo-?) anonymous party (on Usenet, but my position is that it matters not where). Now, in that Demon case, the judges (in their infinite wisdom
That is what Usenet servers do. They merely distribute content that for all intents and purposes, has already been published.
If my house is burgled, and no-one has any idea who the perpetrators were, can I sue the police for not catching them? Of course not. Dr Godfrey was faced with an untraceable libel. Instead of putting it down to experience, or even (as I think would be reasonable) having a go at anonymous trash talk, he decided to have a go at Demon. An innocent distributor.
You might be wondering where I am going with this. OK, I was reviewing my rant and I feel the need to sum up a bit. The medium is not important. But there is a massive distinction between transmission and republishing.
When a libel is retransmitted by computers, no republishing is committed. Even if it were, you could not sue the computer involved. This recent judgment makes this very clear (well, they left the previous judgment well intact), and I applaud those who made the judgement. Untechnical they may be, but it makes no difference. It was a good decision, regardless of the medium of transmission.
<
My first reaction was to agree, but then I tought about, of all things, the rulebooks for RPG's and the various SciFi/Fantasy card games out there. I have found so very many cases where the grammar of the rules was just slightly vague or where the writers glossed over a section to some small degree. Chaos usually ensues as the parties involved battle interpretations. So it's understandable that when one wants to write a law, they want to make the language as precise as possible to avoid loopholes and misuse. Of course, they fail anyway...
Not unlike software programming, really. Languages that are detailed and complex (and therefore harder to learn) can be annoying when you try to compile, but it forces you to be _extra_ careful when writing and debugging it. Languages that are simple and have a lot of automation involved (Visual Basic comes to mind) can be convenient, but you never really have the degree of control over the software you need.
Dyolf Knip