[LINK] one for the legal eagles: 'private' libel

[Roger Clarke]

Rick Welykochy <rick@praxis.com.au>:
>one for the legal eagles: 'private' libel:

I'm not a legal eagle and this is not advice but comments.

My take on the general question of defamation on the web is at:

Outline:
http://www.anu.edu.au/people/Roger.Clarke/II/ElPubComm.html#defamation
Analysis:
http://www.anu.edu.au/people/Roger.Clarke/II/DefWeb01.html


>I post an email to a private, members-only mailing list. The email
>could possibly be deemed libelous and derogatory to a certain
>company X, if they ever saw it.

That could do with a little re-phrasing, e.g.
If a person to whom a message refers becomes aware of it, that person 
could possibly:
(a)  threaten an action in defamation (not uncommon);  and/or
(b)  commence an action in defamation (much less common);  and even
(c)  keep it alive long enough to reach the court (even less common).
If it gets that far, then the court could find that:
(d)  a defamatory statement had been uttered (common);  and even
(e)  no defence existed (which depends a lot);  and therefore possibly that
(f)  the defendant owed:
      (i)   the defamed person an apology;
      (ii)  the defamed person money;
      (iii) the courts lots of money for everyone's costs.

Note that (a) and (b), and even (c), don't depend on there being any 
reasonable grounds for believing that the comments would ever be 
found defamatory by a court.  It has more to do with who's got deep 
pockets.


>The mailing list maintainers then publish all the email from the
>list archives on the web.
>
>Company X now finds the email published on the web, in public
>view if you care to look for it.
>
>If the email is found to be libelous, who is guilty? Me the writer?
>The mailing list maintainers, the publishers? The web server
>sys admins, the providers?

 From the Intro above:
"Liability for RE-PUBLICATION is based on whether the person 
republishing the material has in some way adopted or approved of the 
statements".

The two sections starting at:
http://www.anu.edu.au/people/Roger.Clarke/II/DefWeb01.html#JLA
consider where it is that publishing is performed, and (as a 
secondary question) whether the act by the user of a browser which 
causes a web-page to be downloaded and displayed represents 
publication by the person on whose behalf the server makes the 
web-site available.

In general, if an e-list is 'moderated', or a web-page 'edited' (or 
maybe even eyeballed?), it's likely to be treated as being published, 
in which case the person doing the publishing or re-publishing is at 
risk of being held liable.

*But* the real answer is:
(1)  very few directly relevant decisions have been made by any courts
      anywhere;
(2)  judges at first instance who have complicated evidence placed before
      them largely ignore it, and make lawyerly decisions that fly in the
      face of technical logic;
(3)  many such decisions, dopey as they are, either don't go to appeal,
      or proceed at glacial pace through the judicial system;
(4)  some of those judgements don't get reversed by the senior courts,
      because the senior (and often older) judges don't understand the
      evidence either, or they find legal reasons not to have to consider
      the technical evidence;
(5)  after some years or decades, some semblance of sense emerges, but
      not before a few innocents have been scalded.

Yes, the law is an ass.

No, there is no coherent practice of bringing test-cases before the courts.

No, there is no adequately developed concept of technical assistance 
to the bench.  The common law judicial system persists with the 
mythology of adversarial processes being the best way to the truth, 
in all circumstances.

No, I don't think people should go around looking over the shoulders 
for fear of being dragged into a defamation case.

Yes, there are some precautions that should be taken by:
(a)  people who utter comments;
(b)  people who make space available for comments to be stored;  and
(c)  people who actually publish or re-publish other people's comments.

These are quick reactions, and I reserve the right to re-consider any 
and all of the above if people are kind enough to poke holes in any 
of it.

-- 
Roger Clarke              http://www.anu.edu.au/people/Roger.Clarke/

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