Internet Defamation

1
Internet Defamation

• Jurisdiction Internet is totally global. So
  where do you sue? Gutnick v Dow Jones (2001)
• Publication Is an ISP responsible for libelous
  statements made by its users? Godfrey v. Demon
  (1997) In UK, yes. In US, no.
• Publication Is an ISP responsible for libelous
  statements made by its users? In HK, ????
  IceRed v. E-Silkroad (2001)
• Cyberlaw in Hong Kong

2
IPO JurisdictionGutnick v Dow Jones

• First to decide on the jurisdiction of a libel
  between two countries
• New Jersey, in the United States, and Victoria,
  in Australia.
• Actors Joseph Gutnick, a prominent Australian
  mining tycoon, outspoken Jewish supporter and
  public figure, philanthropist.
• Barrons Magazine, published by Dow Jones.
  Article appeared on Monday, 30th of October 2000
  written by William Alpert titled Unholy Gains,
  sub-headed When stock promoters cross paths with
  religious charities, investors had better be on
  guard.
• The first page had a large picture of Gutnick,
  and 7000 words accused him of questionable
  financial dealings, share manipulation through
  his religious charity, and fraud.
• A small number of the print copies of Barrons
  made their way to Australia, but a number were
  sold in Victoria. Barrons is also online, and the
  defendant put the Gutnick article online the day
  after printing. There is no Barrons website, but
  its under wsj.com, and has 550,000 subscribers,
  1700 of which are in Australia. Several hundred
  from Victoria, Australia.
• Gutnick sued Dow Jones for its online libelous
  publications, but the question was whether the
  jurisdiction would be in Victoria, or New Jersey.

3
The Case Findings

• All six internet servers were in New Jersey. But
  Gutnick was libeled in Australia. The defendant,
  DJ, wanted the trial in New Jersey. Gutnick in
  Victoria.
• To say that the country where the article is
  written, edited and uploaded and where the
  publisher does its business must be the forum is
  an invitation to entrench the United States, the
  primary home of much of internet publishing, as
  the forum.
• Dow Jones argument that it would be unfair
  for the publisher to have to litigate in the
  multitude of jurisdictions in which its
  statements are downloaded and read, must be
  balanced against the world-wide inconvenience
  caused to litigants, from Outer-Mongolia to the
  Outer Barcoo, frequently not of notable means,
  who would at enormous expense and inconvenience
  have to embark upon the formidable task of suing
  in the USA, with its different fee and costs
  structures and where the libel laws are, in many
  respects, tilted in favour of defendents, orin
  favour of the constitutional free speech concepts
  and rights developed in the USA which originated
  in the liberal construction by the courts of the
  First Amendment.

4
The Case Findings

• If you do publish a libel justiciable in another
  country with its own lawsthen you may be liable
  to pay damages for indulging that freedom.
• It is unfair to say that everyone libelled on
  the Internet by a U.S. based publication must sue
  in the publicists domain and not in the place
  where the victim believes that his reputation lay
  and was damaged. Moreover, in this case the
  plaintiff is not interested in global damages. He
  confined his claim to publication in Victoria and
  has undertaken to the Court not to sue in the
  U.S.A, Israel or anywhere other than in the State
  of Victoria.
• In the first place, the publication of the
  claimed defamatory statement was in Victoria,
  where it was downloaded and where the print
  publication was sold.
• Second, the plaintiff is a resident of Victoria,
  has his business headquarters here, his family
  here, his social and business life here, and
  seeks to have his Victorian reputation vindicated
  by the courts of the State in which he lives.
• Third, the plaintiff is indifferent to the other
  substantial parts of the article and desires only
  that the attack on his reputation in Victoria as
  a money-launderer should be repelled and his
  reputation re-established.
• Fourth, the plaintiff has undertaken to sue in
  no other place in respect of the matters which
  found his own proceeding. This undertaking
  destroys at one stroke the defendants claim that
  New Jersey is to be the preferred jurisdiction
  because of its capacity to award worldwide global
  damages. Quite apart from the effect of the
  undertaking upon this part of the defendants
  case that the USA is the preferred jurisdiction,
  the legal assertion that worldwide damages could
  be awarded and would be awarded in the United
  States, if the plaintiff succeeded, has not been
  established as a matter of the law of the country
  to my satisfaction.

5
The Case Findings

• The plaintiff loses juridical advantages if he
  sued in the United States and the defendant would
  lose the United States juridical advantages if
  the matter were litigated here. This is not an
  issue as to which legal system is to be
  preferred, the assumption being that in both
  places the relevant law will be understood and
  applied.
• The defendant contends that the practical
  considerations of jurisdictional connection make
  it obvious that it would be more burdensome for
  the defendant to fight the case here, with the
  accompanying difficultiesof calling witnesses,
  producing documents and accessing all of the
  material which might not be forthcoming by
  consent in a civil proceeding whereas the
  plaintiff will not have that difficulty if his
  case is tried in the United States. It is not
  clear to me why the plaintiff would be free of
  those burdrens.
• Throughout, the argument has been that the
  article is indelibly American, written by
  Americans for Americans interested in the stock
  market and its affairs. The weakness in this
  argument is that the aspect sued on by Mr.
  Gutnick is indelibly Victorian, connected with no
  other place and that any documentation or
  evidence concerning the matter will all be found
  in Victoria.
• I reach a clear conclusion that the State of
  Victoria is both the appropriate forum and
  convenient forum for the disposition of the
  litigationMany of the defendants claimed
  difficulties are more imagined than real, butthe
  most significant of the features favouring a
  Victorian jurisdiction is that the proceeding has
  been commenced by a Victorian resident conducting
  his business and social affairs in the State in
  respect of a defamatory publication published in
  this State, suing only upon publication in this
  State and disclaiming any form of damages in any
  other place.

6
Define publication in the Internet
worldLaurence Godfrey vs Demon Internet

• 1st judicial decision w/in UK which concerns
  defamatory statements made via e-mail through
  Internet Usenet discussion group.
• 1st case to take into account the liability of an
  ISP under section 1 of Defamation Act 1996.
• Section 1 of Defamation Act 1996
• Responsibility for Publication
• Relevant words of the law
• A defence must show (a) he was not the author,
  editor or publisher of the statement (b) he
  took reasonable care in relation to its
  publication and (c) he did not know, and had no
  reason to believe, that what he did cause or
  contributed to the publication of a defamatory
  statement. All three must be established by the
  defendant.
• Publisher means a commercial publisher, whose
  business is issuing material to the public.
• Not considered author, editor, or publisher if
  only involved in(e) as the operator of or
  provider of access to a communications system by
  means which the statement was transmitted.
• To determine reasonable care consider(a)
  extent of his responsibility for the content, or
  decision to publish (b) the nature or
  circumstances of publication (c) previous
  conduct of author, editor, or publisher.

7
Facts

• Plaintiff Dr. Laurence Godfrey, lecturer in
  physics, mathematics, and computer science based
  in London.
• Defendant Demon Internet, major Internet
  Service Provider (ISP) in UK. Provides 3 major
  facilities via Internetemail, Worldwide Web, and
  Usenet. Usenet allows an author to submit a
  posting to his Usenet news server based at his
  own local ISP, then it is ultimately distributed
  and stored on news servers of nearly every ISP in
  the world that offers Usenet facilities.
  Internet users worldwide can read and download
  Usenet posting by connecting to their local ISPs.
  Discussion topics are separated by subject,
  known as hierarchies.
• Jan 13, 1997 Unknown person made posting in the
  US to Usenet news group soc.culture.thai.
  Posting followed path from US ISP to Demons news
  server in the US, where Dr. Godfrey accessed it.
  The posting was squalid, obscene, and
  defamatory of Dr. Godfrey. And interestingly,
  it purported to be from Dr. Godfrey and invited
  readers to reply to Dr. Godfreys email address.
  It was clearly a forgery.
• Jan 17, 1997 Dr. Godfrey sent a letter by fax
  to Managing Director of Demon Internet, informing
  him that the posting was a forgery, that he was
  not responsible for it, and requesting it be
  removed from the Usenet news server.
• Demon admits to receiving the fax and admits that
  it did not remove the posting. The posting
  automatically expired ten days later, on Jan 27,
  1997. There is no dispute that Demon could have
  removed the posting.
• Dr. Godfrey sues for libel in respect to Jan 13,
  1997 posting, after Demon acknowledged that it
  was defamatory.

8
The Judgement

• J Morland
• Demon was clearly not the publisher of the
  posting within the meaning of 1(2) and 1(3), so
  Demon can avail itself of 1(1)(a).
• Difficulty is with 1(1)(b) and 1(1)(c).
• The fact that Demon knew about the posting and
  decided not to remove it, places Demon in an
  insuperable difficulty so that it cannot avail
  itself of the defence provided by section 1.
• Cited Lord Chancellors debate on Defamation
  Bill, July 1995 The defence of innocent
  dissemination has never provided an absolute
  immunity for distributors, however, mechanical
  their contribution. It does not protect those
  who knew that the material they were handling was
  defamatory, or who ought to have known of its
  nature.
• Cited Day v. Bream (1837). Distributor must
  prove his ignorance of the contents.
• Cited Pullman v. Hill (1891). If the material is
  shown to just one person other than the
  specifically indicated receiver, it is a
  publication.
• Cited Byrne v. Deane (1937). By not removing the
  defamatory matter, the defendant made himself
  responsible for its continued presence in the
  public arena, ergo, its publication.
• Conclusion
• In my judgment the defendant, whenever it
  transmits and whenever there is transmitted from
  the storage of its news server a defamatory
  posting, it has published that posting to any
  subscriber to its ISP who accesses the newsgroup
  containing that posting. Thus every time one of
  the defendants customers accesses
  soc.culture.thai and sees that defamatory of
  the plaintiff there is a publication to that
  customerI do not accept the defendants argument
  that they were merely the owner of an electronic
  device through which postings were transmitted.
• Demon ordered to pay Godfrey 50,000 pounds.

9
Chatroom malfeasenceIceRed

• Facts
• Plaintiff e-Silkroad Holdings, a recently
  publicly listed company on the Hong Kong Stock
  Exchange. Provides e-commerce development
  services, and an online trade fair.
• Defendant IceRed.com world-wide-website, a
  discussion forum for working Hong Kong
  professionals. 8000 registered members. 10,000
  unique visitors each day. Staff of five.
• Oct 12 2000 to Mar 27 2001, more than 10 messages
  that were libellous to E-silkroad appeared on
  IceReds chatrooms, using anonymous names such as
  Bravo, Ringo, Ring Master, and Outsider.
  The posting suggested that E-Silkroads management
  were manipulating the market and misuse funds
  from its recent IPO.
• E-Silkroad complians to IceRed of the postings.
• IceRed removes them.
• E-Silkroad demands Internet Protocal addresses to
  identify the authors.
• IceRed refuses.
• E-Silkroad sues, gets injunction.
• IceRed releases IP addresses.

10
For discussion

• Point 1 IceRed now has disclaimer. IceRed also
  now requires registration of users via email
  addresses, which still does not provide enough
  information for a plaintiff to find out exactly
  who posted the libelous message. IceRed has been
  sued on a number of occasions and has given up
  individual information when ordered to do so by
  court order.
• Point 2 E-Silkroads main aim is to find out
  who said what about them. He says participants
  went too far, now hes made it his mission to set
  a local legal precedent and instill restraint
  among the sites resident character assasins.
  What I am doing is for benefit of E-Silkroad
  and also for anyone whose reputation and
  happiness have been effected by cowards who
  werent willing to come forward. This is
  bringing law and order back to the Internet in
  Hong Kong.
• Point 3 Internet Defamation in Asia
• SingaporeConsidered legislation that wouldve
  made ISP responsible for content posted by
  outsiders. But decided against it over concern
  that such broad culpability would discourage
  website formation.
• ChinaEnacted regulations requiring all domestic
  ISPs to continuously monitor chatrooms for
  culturally or politically sensitive material.
  Operators can be immediately closed down for
  public commentary that is off-limits by
  authorities.

11
For discussion

• Point 4 Nature of Chatrooms Ability to
  comment publically but anonymously gives
  disgruntled workers an outlet for airing
  legitimate frustrations. Stock market investors
  are able to share information freely. Medical
  patients can discuss the most intimate subjects
  online without embarrassment. The whole idea of
  chatrooms was to set up this opportuniy to engage
  in a free and open discussion without having to
  worry about potential repurcussions, Raymond
  Wacks, law professor at HKU. A loss by IceRed
  would change that.
• Point 5 Total anonymity has bad pointsin stock
  chat rooms, shortsellers can start spurious
  rumors about companies to spark panic selling.
  ISPs are mixed on user privacy. In US, Yahoo
  releases user information at first whiff of
  trouble. In the past, without even information
  the user it was doing so. Today, Yahoo notifies
  users 15 days before it gives out their IP
  addresses.
• Point 6 E-Silkroad claims to be fighting for
  transparency. Doesnt mind that employees
  complain, just wants to know whos complaining.
  Im all for freedom of speech but it comes with
  responsibility, said Ho, CEO of E-Silkroad.

12
Cyberlaw in Hong Kongby Paul Stephenson, Alisa
Kwan, and David Ellis

• Liability of Internet Service Providers
• Hong Kongs Defamation Ordinance (Cap 21) Section
  25concerns unintentional defamation by
  publishers.
• Sect25 (1)(a) If the publisher makes an offer
  of amends (e.g. sufficient apology on ISPs
  homepage) and the offer is accepted, then no
  proceedings for libel or slander shall be taken
  by plaintiff. The plaintiff can still go after
  the author, just not the publisher.
• Sect25 (1)(b) If offer is rejected, and
  publisher is found innocent, then the offer
  raises a defence to proceedings for libel and
  slander. Must have made offer as soon as
  practicable upon receiving notice of defamation.
• Sect25(2)-(3) Requirements of offer of amends
• Sect25(5) What constitutes innocent
  publication?

13

• Liability of Internet Service Providers Contd
• Sect25(5) What constitutes innocent
  publication?
• Innocent if
• Sect25(5)(a)Defamed person is NOT named. And
  publisher did not know of the material or the
  reasons by which the unnamed defamed person could
  be identified.
• Sect25(5)(b)The words were not defamatory on the
  face of them. The publisher was not aware of the
  circumstances that made the content defamatory.
• Proviso to Sect25(5) requires that publishers
  must exercise all reasonable care in relation
  to publication. In UKs Defamation Act, it says
  all reasonable care.
• In HKs Defamation Ordinance, it says, all
  reasonable care.
• This difference in emphasis could be interpreted
  to mean ISPs ought to establish that material
  is not defamatory BEFORE it is placed on the
  worldwide web, whereas in UK, material may be
  posted subject to being removed as soon as it is
  complained of being defamatory.
• In the US, an ISP that makes no effort to control
  its content escapes liability, where as an ISP
  that provides value-added services by controlling
  inappropriate messages may be liable for
  defamation. (Stratton Oakmont v Prodigy Services
  (1995) vs Zeran v. America Online (1996))
• kimberly and joshua
• the end.