[LINK] Rindos v Hardwick - a case misread

Peter Bowditch peterb@gebesse.com.au
Sat, 28 Oct 2000 00:09:59 +1100


>From this week's Millenium Project update at
http://www.ratbags.com/rsoles

The Rindos v Hardwick case 

Background

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... 

and  

> sorry, but you can dig as we did.....not everything is on the
> internet....you will have to paperchase.........as it concerns rindo
> vs.harwicke...... 

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 peterb@ratbags.com
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