Slashdot Mirror
Links to Defamatory Sites are Defamatory?
An anonymous Demon Customer writes
"Demon Internet (a UK ISP) are blocking customers'
ability to post to USENET through their news
servers if a customer posts a message containing
a URL to a defamatory article on a website (in
this case Dejanews).
They claim that the act of posting the URL is
equivalent to posting the defamatory article
itself.
It doesn't end there. If another customer follows-
up the original article and has the same URL in the quoted text, they also get their access pulled.
Where does it stop? Do message ID's of messages containing the URL count (eg. in the `references' header)?
This also opens a whole can of worms for the UK's defamation laws, with regards to the internet.
Here is the post from a Demon representative which states their position."
http://www.deja.com/getdoc.xp?AN=209624296 is the URL in question.
Posted by andygates:
Sure, I agree that if they are alerted to a defamatory article on their servers, they are wise to remove it. But removing links? I cannot see how this can make them liable; surely it is no worse than a newspaper saying "According to sources, so-and-so is a *@!£$!@" - and giving the sources. Which they already do.
Demon's move is a dangerous challenge to free speech on the net; a lot of die-hard UK netizens use Demon (it's been around for ever) and I can see them leaving in droves if they start this sort of Big Brother checking.
As an alternative to killing the links, why don't Demon instead notify the ISP carrying the article? They will then have served "due diligence" and should be absolved of any legal responsibility - and the other ISP can do as it pleases.
>However, if we can assume for the moment that
>things are similar in the UK as they are in the
>US (specifically a highly litigous society that is
>grasping at straws trying to shoehorn emerging
>technologies into outdated laws very
>inconsitantly) it makes perfect sense.
Sounds like it's a single litgious individual, who is already litigating. Under the circumstances, I don't see what choice they had other than betting the farm on what the law is ultimately decided to be . . .
It would seem that Dr. Godrey is somewhat litigious.
It seems to me that once notified of a potentially libellous posting, Demon have to remove it to avoid legal action.
But what if they didn't believe me when I said the posting was libellous? What if they had good reasons to believe I was lying?
If everyone submitted three or four messages each day to Demon, claiming that random articles were libellous and demanding they be withdrawn, then any 'real' complaints would get totally lost under all the chaff. Demon could claim that they were justified in ignoring all such requests. But IANAL and I don't know how well such an argument would work in court.
-- Ed Avis ed@membled.com
...that reading from some link listed in this discussion, my impression was that Mr Godfrey did not post the message. Someone else posted it to make it look like it was from him. Therefore, people get the impression that he's some disgusting pervert. I certainly respect his decision to defend his character.
I wouldn't like to be defaced in front of the whole world.
Too bad there isn't a method of tracking who actually posted the message in question.
~afniv
"Man könnte froh sein, wenn die Luft so rein wäre wie das Bier"
~afniv
"Man könnte froh sein, wenn die Luft so rein wäre wie das Bier"
Richard von Weizs
- If the court is convinced that the defendant told the truth, the plaintiff loses.
- If a "public figure" brings a libel suit, it's not enough to prove that the defendant made a false and damaging statment; the plaintiff must also prove that the defendant either acted with malice or had negligent disregard for whether or not the statement was true.
- It's difficlut, if not impossible, for a plaintiff to win when the allegedly libelous work is a parody or a political commentary.
(IANALI know that some other countries' libel laws make it easier for plaintiffs to win, and I know that UK law is not as strict about free speech as the US Constitution is ... but I don't know details. Can any Brits or legal eagles on /. help us out here?
send all spam to theotherwhitemeat@ropine.com
By this reasoning, a URL to an article which contains a URL to a defamatory article, is itself defamatory... Figuring out the far-flung consequences of such a moronic policy is left as an excercise to the reader.
This is a pefect example of legal lunacy -- cover your ass so thoroughly that you also cover your moth and suffocate. Reminds me of some older software licenses which, when taken literally, would not allow you to copy the software to your harddrive for installation purposes -- actually forbade you to install the software.
My faith in humans' intelligence is crumbling, piece by piece, every day.
--
--
Victor Danilchenko
Oops...
Kaa
Kaa
Kaa's Law: In any sufficiently large group of people most are idiots.
Morally, one would say that the defamer is (and Demon's Acceptable Use Policy for their web space conforms to this: "13. You will be held responsible for and accept responsibility for any defamatory, confidential, secret or other proprietary material available via your Homepages site.").
Historically though, the publisher has a responsibilty also. This is presumably predicated on the notion that someone would read a defamatory statement before it was published - there would be an editor, or a typesetter, or even a scribe who acts as an agent to enable publication. This agent must see the defamatory material beore it is sent out into the big wide world, and as such the publisher can be construed as knowing about it. Also, of course, publishers generally have more money than authors so an aggrieved party is likely to get more dosh out of them.
Obviously (to netizens, anyway) this whole model of responsiblity explodes in a world of direct communication which requires no intermediaries. For those seeking redress, then, they can either sue the author (who might not be known or legally accessible) or the ISP who carried the dafamation on their server. Given the options, it's hardly surprising if ISPs get it in the neck.
This decision is very unfortunate, though - ISPs should have common carrier status like phone companies or the postal service: they are merely a channel, and do not control or have direct responsibility for the content generated by their users.
I feel sorry for Demon here, to be honest - they're just trying to avoid being held in contempt.
--
Dunx
Converting caffeine into code since 1982
I know this one looks like Demon being silly, but the likely cause is far simpler. They got sued a while back for a news article that appeared on one of their servers, despite the fact it wasn't posted by their users. Their plea was an entirely sensible (IMHO) innocent redistribution and pointing out quite how the Internet works, but they lost all the same. It stinks, but it's what's happened and doing something like this is probably necessary to stop them getting sued out of existence.
Greg
(Inside a nuclear plant)
Aaaarrrggh! Run! The canary has mutated!
True, but note that the burden is on the plaintiff to prove falsity. If the plaintiff is unable to prove that, the defendant has no obligation to prove his story true.
If a "public figure" brings a libel suit, it's not enough to prove that the defendant made a false and damaging statment; the plaintiff must also prove that the defendant either acted with malice or had negligent disregard for whether or not the statement was true.
Close -- the key word isn't "negligent disregard," but "reckless disregard." Negligence can be mere sloppiness or laziness, whereas recklessness is sometimes equated to "gross negligence" or "willful blindness."
(For instance, if someone told me he saw the mayor of New York kill a man in broad daylight in downtown Boston on a particular date, it might be reckless to publish the story without further investigation given (1) the overwhelming likelihood that the story is false and (2) the fact that the story could easily be checked against the mayor's schedule, which is a matter of public record. It's a pretty demanding standard.)
>...but it sounds like they (Demon) are being
> reasonable about it until they're lawyers can
> draw up a sensible policy.
exactly.
the uk needs some kind of 'common carrier' law, otherwise any idiot with a grudge could shut down most of the isp's for slander/liber/words they never heard in the bible.
think about it: if demon are liable for something which appeared in their newsfeed, what's to stop every kook of the month worldwide for suing for defamation? they must be liable for all the porn in their (very uncensored) newsfeed. they must be liable for any negative comments on their own websites, and by the extension of an ignorant court, all websites worldwide.
would *you* like to be held responsible for www.godhatesfags.com? or any other gibbering site?
dave, pissed off in wanchai.
I just wanted to add a little background on this...
This action by Demon follows a court case earlier in the year, where a guy claimed that Demon were responsible for defamatory comments posted to their news servers about him (by Demon customers - not by Demon themselves). Demon LOST, and this has been a really worrying development for UK free speech. As I understand it, Demon is now appealing. The postings posted in this new dispute are about the same guy.
So Demon is unfortunately now having to delete posts/bar users in order to comply with a legal suit that they are appealing against.
In my experience, Demon have always been one of the best UK ISPs. They have had full news feeds etc. all the time, and seem to have complied with government censorship attempts just enough to stay out of trouble. They're pretty good technically too (always delivered mail by SMTP, always handed out static ip addresses, great support for Linux).
...by a satisfied Demon user (for almost 5 years)
Among other things, recognize the truth of Justice Brandeis' remarks about the best remedy for bad speech -- more speech.
The best solution is to apply common sense, IMHO.
At the point that a message has reached urban legends status, it should be fairly straightforward to obtain ISP compliance.
Otherwise, placing an ISP on notice of the falsehood of a message, and simultaneously addressing the most recent publisher of the defamatory posting can sometimes create legal rights where they did not exist before.
And yes, distribution of urban-legend stuff takes on a life of its own, but this particular type of republication doesn't seem (to me at least) to be likely to be republished by mere meme-replication, but rather by an intent to republish by someone.
It is one thing to publish a plea for wondrous things for a sick child, and understand why that e-mail makes the rounds. I'm not sure I see how it would happen in the present case absent someone's desire to see the bad news make the rounds without regard for its truth.
But, of course, none of this is legal advice. Sometimes, the best solution for bad speech is just to use proper fora to set the record straight. Otherwise, there is usually a solution short of litigation or the threat thereof -- if folks would just apply good common sense.
We should not be incredulous that the republication of unprotected speech should be actionable, or even that the posting of an -link to a web site would be deemed republication, so long as reasonable care is taken not to infringe First Amendment concerns. Nor can we assume that mere republication constitutes defamation in its own right. As is often the case in legal matters, the truth is rather more interesting.
In the U.S., the law concerning republication is complex, in part, because as noted by some other postings, the United States Constitution precludes the state from infringing the freedom of speech in many cases.
The cases seem to universally acknowledge the proposition that mere publication is not, by itself, enough. "Those who merely deliver or transmit defamatory material previously published by another will be considered to have published the material only if they knew, or had reason to know, that the material was false and defamatory." Barres v. Hold, Rinehart & Winston, 330 A.2d 38 (N.J. 1974); see also Restatement (Second) of Torts section 581.
There is a historically qualified privilege for carriers such as telegraph companies, unless the plaintiff establishes common-law (not constitutional) malice on the part of the defendant. And there is the Cubby case.
These general rules are further supported by Supreme Court case law setting forth the constitutional doctrine requiring "fault" as a minimum prerequisite for at least most liability for demfamation. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). There are also some criminal obscenity cases holding that a book store cannot be liable for contents of unreviewed books that they vend.
On top of all of that, there is also a "fair reporting" privilege for news reporting, because of first Amendment concerns. Repeating a defamatory statement is simply not actionable in public-figure or public-official cases unless the republisher knows the statement is false or is subjectively aware of the probable falsity (which almost never is the case). And in non-public figure cases, the plaintiff will still have difficulty demonstrating the requisite level of "fault" under applicable post-Gertz rules.
But like "fair use" in copyright, you can't win simply by calling "fair use! fair use!" Its a complex, difficult analysis that defies simple statements of bright-line rules and, is likely to vary from case to case on particular facts. The law is careful that its protection of the Constitutional right does not provide a Constitutional refuge or excuse to widely distribute a quietly published defamatory statement, but is also careful to protect the fourth estate and general first amendment principles.
For this reason, it is a serious mistake to focus on these cases merely on the technical questions of how a republication is accomplished. The liability will depend upon a host of highly fact-specific inquiries, and could likely go either way depending on those particular facts.
While it is not a popular thing for a lawyer to answer a question with "maybe," it would nevertheless be irresponsible to suggest that bright line rules govern this subtle and sticky question. I can envision circumstances where an URL-list (regardless of how distributed) can be unactionable mere bibliographic referencing of a document, and still others where it constitutes part of an intentional and willful plan to republish a defamation known to be false.
So, I wouldn't leap to conclusions -- the truth, as it often is for legal matters, is much more interesting. . .
At least they made the EFFORT to let their customers know what is going on. And, as I saw someone else post, it sounds like a temporary, emergency measure, not like generalized policy.
This is better than the American ISPs with pre-installed censorware garbage. Especially Cybersitter.
(Someone refresh my memory here? I know there were a few out there that did this and either didn't publicize it at all or else didn't publicize exactly WHAT Cybersitter was blocking. And that's a story in and of itself
"Somebody exploded a letter-bomb today
However, if we can assume for the moment that things are similar in the UK as they are in the US (specifically a highly litigous society that is grasping at straws trying to shoehorn emerging technologies into outdated laws very inconsitantly) it makes perfect sense. If I was the owner of a company like that, and knew that there was a really good chance that someone would file a lawsuit against me for some outrageous amount of money becuase someone posted something through my services, I'd be prohibiting that kind of activity as much as a 'reasonable man' would be able to.
I agree that this new medium of the Internet should be treated in many ways like a phone system -- that is, the carrier can't be held responsible for the message that other people send -- but so far, that issue is mired in controversy as far as the courts are concerned. While putting up a test case and fighting for our rights is a very admirable goal, it's also a good way to speed up financial ruin -- lawyers are expensive and loosing a lawsuit would probably be enough to shut down a company due to the outrageous sums that get awarded. If I was running such a business, I'd let someone else take the fight and protect my investment by following the old 'reasonable man' standard of what I filter, simply so I can stay in business.
Cowardly? Absolutely! But principles of fighting for freedom don't apply too much when talking about the dollars and cents (or pounds) involved in a business. If, of course, people leave filtering and deleting ISPs in droves, there will be a similar economic impact -- the only thing a business really responds to. Of course, no matter what the customers want, if an ISP is sued for not filtering or deleting a post or whatever, they run a good chance of being litigated out of business. If the customers, however, sucessfully petition the government to change the legal environment -- get it officially ruled into law that an ISP should be treated like a LEC, in regards to content responsiblity -- then an ISP has little to be concerned about in that regard.