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Publishing Now Counts As Now

Posted by timothy on from the imagine-the-alternative dept.

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."

19 of 152 comments (clear)

  1. Determining the posting date by SpatchMonkey · · Score: 5, Interesting

    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!

    1. Re:Determining the posting date by alsta · · Score: 3, Insightful

      I would tend to agree with this. If you could use an archive of some sort, you'd also have to prove that it was a `neutral' source. Non-affiliated or whatever. The point that you're making and very well so is that this is a big mess and should be dealt with accordingly.

      The posting date should clearly be the date when the clock starts ticking. Even if the web allows many times for dynamic content, created on the fly, it still should be considered published. Setting precedents like these is very dangerous.

      But then again, who is to say that the posting is `published' to a small group first and in the 11th hour (11 months and 2 weeks later) gets published in the real world... There are all kinds of sleazebags out there.

      --
      Wealth is the product of man's capacity to think. -Ayn Rand
    2. Re:Determining the posting date by MikeOttawa · · Score: 3, Interesting
      What about if I link to a page - I am republishing the article on the date I create the link? For example, if I write an article about someone that gets published in my local paper, and then 3 months later it gets picked up by Time magaize and the offended party reads it there. In that case, the date of publication can be the Time magazine's date of publication, and not the original articles.

      Now in the Web World, if Time online (for example) links to an article put online by my local paper 3 months ago, what is the date of publication. As far as the local paper is concerned it was 3 months in the past, but as far as readers of Time online, it was today. What date would be used as a baseline for my rights under the statue of limitations?

      Just food for thought.

    3. Re:Determining the posting date by AndrewHowe · · Score: 3, Informative

      Sorry... Following up my own comment...
      This earlier decision said:

      "If the article is altered or edited in a different matter, or if a defamatory article is placed in a new form (such as the first posting of a previous print-only publication on the Internet), a new statute of limitations period will begin to commence on the date of such republication. Said the court:

      A republication will occur when the defamatory article is placed in a new form (paperback as opposed to hardcover) or edited in a different manner."

    4. Re:Determining the posting date by DickBreath · · Score: 5, Funny
      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.

      C'mon, we're all smart enough here to know that this problem is easily solved.

      Your Palladium IIS server will upload a unique document ID and publication date for all documents you publish to a central government server that tracks the publication of all documents. Additionally, each time a document is read, the trusted IIS server will notify the government document tracking server that the document was read and by who.

      Problem solved. Now it is easy to determine any of...
      1. The date the document was put on the web
      2. The date of the first download
      3. The date of the last download
      4. The dates of any revisions to the document
      5. And best of all... who is reading what documents!
      etc.

      As for implementation, the government document tracking server would probably need to be distributed, sort of like the root name servers. We could put ICANN in charge of this.

      This not only solves the problem, but also helps with our oh so important copyright protection. Someone else publishing the same document without permission could be tracked down.

      It's good for everyone. The economy. The Govt would spend $$ on servers. MS would rake in the profits. The RIAA / MPAA would love us. And it would help in defamation suits so that everyone would quit saying negative things about anyone else.

      Now what was Fritz's address again?
      --

      I'll see your senator, and I'll raise you two judges.
    5. Re:Determining the posting date by jiminim · · Score: 4, Insightful

      If only there were a moderation called "Scary"

  2. A reasonable decision. by uncoveror · · Score: 5, Insightful

    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.
  3. Not necessarily good... by cperciva · · Score: 4, Insightful

    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
    1. Re:Not necessarily good... by Anonymous Coward · · Score: 4, Informative
      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.

      [..]

      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.

      Usually, publishing means making something public, i.e. giving the public access to it. If you defame someone on cnn.com, but the plaintiff only hears about it ten years later, it would still have been published ten years previously.

      Also, remember that to defame some-one, there has to be at least one third party involved; if you just say 'Mr. T is a fool!' to Mr. T himself and nobody else hears it, that maybe be an insult, but it's not slander.

    2. Re:Not necessarily good... by AndrewHowe · · Score: 4, Funny

      ... if you just say 'Mr. T is a fool!' to Mr. T himself and nobody else hears it, that maybe be an insult, but it's not slander.

      Either way, it sounds like suicide!

    3. Re:Not necessarily good... by Rogerborg · · Score: 4, Insightful
      • 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.

      Oh, please stop with the "web is different" mantra. It's possible for a defamatory printed article to be passed around a few friends, get published in a dorm magazine, move up to a college magazine, get picked up by a local newspaper, then go national. At any of these stages, it could be modified, expanded, redacted or for that matter OCR'd and media shifted to the web or CD-ROM. Heck, fake false dated versions could be produced at any point. It would be up to a court to decide what the first "publication" was, and whether it preceeded the version presented by the plaintiff by a year. Similarly, as a court would have to decide if the hidden version was publically available a year before it was noticed by the plaintiff or was shifted to a more public forum. Courts are actually rather good at deciding these things.

      --
      If you were blocking sigs, you wouldn't have to read this.
  4. It's complicted by JanneM · · Score: 5, Insightful

    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.

    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 /. 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?

    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. /Janne

    --
    Trust the Computer. The Computer is your friend.
    1. Re:It's complicted by quantaman · · Score: 5, Funny
      I put it up on my private web page...

      ... Of course /. picks it up and adds a newsitem about it - complete with a link to the text. Is that publication? (or even defamation)

      No, if your private web page actually holds up to the /. effect long enough for anyone to see it I think CowboyNeal rather than sueing you will give you an award!

      --
      I stole this Sig
    2. Re:It's complicted by Rogerborg · · Score: 3, Interesting
      • 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.

      Apparently not. This was a 7-0 vote, with no dissent. And I can understand why.

      What's the difference between a download and a reprint of a newspaper article? Or it appearing in a journal? Or it being collated in a book? Or the rights being sold to another publisher and them publishing it? Or it being OCR'd and distributed on a CD-ROM? Or, for that matter, of someone retrieving it from an archive and making a photocopy of it for personal use?

      Your point is only half valid. If you start down the slippery slope of asking what actions constitute a new publication, then you're into a world of litigation. But that applies equally to printed works as well. The words aren't graven in stone, and even if they were, they could be transcribed to a new medium, just as an online article can be printed in a publication. There's nothing particularly magic about the web: it's functionally very similar to a very convenient version of a paper archive and a photocopier.

      This court just cut through the bullshit and got it exactly correct: the clock starts ticking from the date of first publication of the content in any medium. Hurrah for sane judged!

      --
      If you were blocking sigs, you wouldn't have to read this.
  5. It makes sense. by Restil · · Score: 3, Interesting

    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
  6. Now? by sigemund · · Score: 5, Funny

    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

  7. Interesting with regard to my DMCA threats... by Tom7 · · Score: 5, Interesting

    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. ;)

  8. Time by barberio · · Score: 3, Informative

    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.

  9. How would I know? by martyb · · Score: 4, Interesting

    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.

    • How often would I need to repeat this task? Monthly?
    • What if it were not indexed by Google, but WAS indexed by AltaVista?
    • How many different search engines must I search to make sure I didn't miss anything?
    • What if my name were "John Smith"? (Google reports about 336,000 matches!)
    • What if the attack were in a language in which I am not fluent? (e.g.: Spanish, Russian, or Hebrew.)
    • What if the attack appeared on Usenet instead of the world wide web?
    • What if the attack were presented as a GIF image whose "contents" were text."

    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.