[LINK] Rindos v Hardwick - a case misread
Sat, 28 Oct 2000 00:09:59 +1100
>From this week's Millenium Project update at
The Rindos v Hardwick case
Mr William O'Neill of the Canadian Cancer Research Group does not
like me. People who have had the patience to follow the full progress of
this dislike, as chronicled in the CCRG Correspondence File (at
http://www.ratbags.com/rsoles/onews ), will be aware that I have on
many occasions advised Mr O'Neill that he identifies himself every time
he posts a message from a computer with a recognisable IP address.
He ignored this advice and continued to send both email and
newsgroups messages from four locations (see
http://www.ratbags.com/rsoles/onews/stats.htm ). He started to deny
that he had sent me any messages at all and claimed that they had
come from a variety of people (including me). When I again raised the
matter of IP addresses he informed me that:
> the burden of proof is yours.....you have have to prove who the author
> is.....ip addresses are not admissible in your courts.......and you have
> to prove your representation was not libelous......you probably still
> don't get it, but that's to be expected....
I asked for some evidence that IP addresses were not admissible as
evidence and he replied:
> here's your pointer........"Rindo vs. Harwicke" NSW Court.....judge
> ruled....."........ip addresses do neither confirm nor deny author and
> can not be admissible.......burden of proof is the defendant's to
> demonstrate to the court the indentity of the author and the evidence
> supporting the author's claim......"
I searched the relevant legal databases for the state of NSW, Australia,
but could find no such case. I asked Mr O'Neill for a correct citation of
the case and he replied:
> the Rindo vs. Harwicke yielded a $40,000.00 punitive damage award to
> the claimaint plus costs which exceeded $100,000.00..............
> the defendant was also ordered to cease communication on the
> internet or any activities which invovlved the use or operation of a
> computer for no less than five years.......and the best part was the
> defendant was an australian!.......
> seems the australian courts don't take behavior like that of mr.
> bowditch's that lightly........
This still told me nothing, so I asked again and received:
> the judgement is available....you're not looking in the right place...
> sorry, but you can dig as we did.....not everything is on the
> internet....you will have to paperchase.........as it concerns rindo
At that point I stopped asking, as it was obvious that I was not going to
receive a satisfactory answer.
The case is found
The actual case that Mr O'Neill was referring to has now been identified,
but not everything is as Mr O'Neill would have it. Firstly, the parties to
the case were Rindos and Hardwick, and it was a case in the Western
Australia Supreme Court (case 1994 of 1993). Briefly, Dr David Rindos
was employed by the University of Western Australia and was refused
tenure. Dr Gil Hardwick made some comments on a Usenet newsgroup
(sci.anthropology) that suggested that Rindos was a paedophile and
was not competent at his job. Hardwick refused to withdraw the
remarks, and Mr Justice Ipp found him guilty of defamation. Damages of
$40,000 were awarded. The complete wording of the judgment can be
found at http://joc.mit.edu/uwa/rindos/Law/judgement.html
Quite apart from the mistakes about the names of the parties and the
jurisdiction of the judgment, there is no mention in the judgment of IP
addresses. The section quoted above by Mr O'Neill appears nowhere in
the judgment, nor does any proscription of Dr Hardwick's use of the
Internet or any computer equipment. The only reference in the judgment
which could be interpreted in any way to refer to IP addresses was
where Ipp J said "According to the material supplied by the defendant to
the computer, it was transmitted by him from a computer in Derby,
Western Australia. The distribution was to "the world", which means
that the message was visible, and would have been able to have been
read, on every computer around the world able to receive the science
anthropology news bulletin". If anything, this would seem to imply that
the machine address passed on by the computer was an acceptable
form of identification, although it was irrelevant in this case because the
identity of the parties was not in dispute, and, in fact, the defendant did
not appear and offered no defence.
Ramifications of the case
This was a conventional defamation case only made noteworthy
because it was possibly the first case to arise out of a claimed
defamation on the Internet, although it does raise questions about what
people can say where and what constitutes a public space. I have
several times advised Mr O'Neill that he should consult a lawyer if he
wants to threaten legal action or frighten me with the law in any other
way. Had he done so in this instance, he would not only have been
spared the embarrassment of getting the names and jurisdiction wrong
and of incorrectly quoting from the judgment, but he might also have
been advised of a potential danger to himself from citing this case as a
precedent in any perceived dispute between the two of us.
The defamation published by Hardwick included suggestions that
Rindos was a paedophile who could not do his job properly. Mr O'Neill
has suggested, through the device of rhetorical questions, that I am a
child abuser and have a criminal record. He has also both implied and
stated outright that I do not manage my business properly and may
even be bankrupt as a result. He has published these statements on
Usenet, the same medium as used by Hardwick. While I have no
intention of taking any legal action against Mr O'Neill, it would seem to
me that, should I do so, Rindos v Hardwick would provide much more
comfort to me than it would to Mr O'Neill.
Peter Bowditch firstname.lastname@example.org
Mad - Quintessence of the Loon http://www.ratbags.com/loon
Bad - The Millenium Project http://www.ratbags.com/rsoles
Sad - Full Canvas Jacket http://www.ratbags.com/ranters