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

[Kimberley Heitman]

> 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.
> 
> 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?

The short answer should be that your post to the private list was the
libel, subsequent postings being automatic are not actionable against the
enablers unless they have prior knowledge. The BSA gives a general defence
against technical enablers of published libel, similar to the common law
defence of innocent dissemination. I guess the Plaintiff would argue that
once you posted a message to the Net, you took the risk that everyone
would eventually read it.

The long answer would be that if the libel was really damaging and/or
there's a lot of money involved, all sorts of legal technicalities impinge
on the facts. The olde worlde laws of libel don't translate well to the
Internet, and jurisdictional factors add to the complexity of calculating
the impact of a libel being potentially seen worldwide. 

I admire the Florida judge who dismissed a Usenet libel case by declaring
that no-one could believe anything they read in Usenet, but that sort of
First Amendment heroism is not the usual experience in Australian
courts. So, if the case became a big deal, writs and claims for indemnity
would pass between the technical dramatis personae and inevitably everyone
would end up suing you as the first poster, and you suing everyone
else for exacerbating the publication of the libel. 

Practically, lawsuits involving asserted online defamation are an
expensive way of resolving hurt feelings, and mediated settlements have
lots of practical advantages when the participants have cooled down. A
joint statement in the online forum would often settle the matter on a
"Cluetrain" basis, and within the flammage and discord in online forums
lies the potential for a genuine exchange of views in the public interest.

There are some matters which can't be compromised - EFA is on record as
being prepared to aid in the defence of freedom of expression - and in
those cases the plaintiff-friendly law of libel in this country
nonetheless allows some privileged speech and some defences based on
truth. Equally, I'm prepared to admit to the possibility that a person may
need to have recourse to the law of libel to correct a lie. However, the
laws are inaccessible to the poor and are hard to enforce as libel
laws do vary from State to State. 

It would be interesting if the incoming Federal Government saw fit to
introduce the national defamation law reforms recommended by the Law
Reform Commission in 1972. In short, that report recommended uniform
defamation laws in .au and redress being favoured over damages.

Kimberley Heitman

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                        Kimberley James Heitman
http://www.kheitman.com/                         kheitman@kheitman.com
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