Online defamation, a slightly potted summary
2003-Dec-02, Tuesday 00:51![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
thorfinnThis started out as a comment on ![[livejournal.com profile]](https://www.dreamwidth.org/img/external/lj-userinfo.gif)
wildilocks's reply to my Various Neatstuff post.
First, let it be known that I Am Not A Lawyer, so the following is not to be taken as definite advice, consult a Real Lawyer if you actually need to take any action in this area. Also bear in mind that most of this is from the perspective of the Australian legal system, and that US constitutional concepts such as "freedom of speech" do not apply here.
Defamation (slander and libel are forms of defamation, one is speech, the other is print, I can never remember which is which, and I don't think that the Internet has been well defined as one or the other, so lets stick to calling it by the umbrella term) is pretty much doing anything that reduces the reputation of an individual.
In some (but far from all, and not even "most") jurisdictions, truth is a defense (and defining truth is a damn messy job in itself). But, even if it's a defense in your local jurisdiction, jurisdiction gets real fuzzy when you're talking about Internet posts. Some could interpret it as applying to where the post is downloaded to (ie, the readers' locations), others to where the post was made from, or even where the publishing server (ie, LJ) lives, or some combination of all three. The currently highest caselaw in the area is Dow Jones v Joseph Gutnick, which is saying that it's the readers' locations that matter, and thus Gutnick has the right to prosecute Dow Jones (in the US, including its servers) for defamation, based on the fact that they knew they had membership in Gutnick's jurisdiction (Melbourne). That case theoretically has gone to appeal, but I haven't heard anything about how the appeal went...
Anyway, that complication aside, something is defamatory if it reduces the reputation of an individual in a material fashion. Lets say you make a friends only post, ranting about some individual. If you have 2 friends on your friends list, neither of whom knows the individual you're ranting about, and you don't post any identifying information about the individual or even information that could be used to identify the individual, then probably you are in the clear for defamation. If you have six hundred friends on your friends list, all of whom work in the same field as you, and you post a big rant about your co-worker and how unprofessional they are, that would almost certainly be considered defamation. If you fit somewhere between those two categories (and most people do), then you're in the grey zone.
Now, if you're not applying any security to the post at all (ie, it's a public post), then hell, that's the same as getting your article on the front page of The Age Online, as far as defamation law and the yourself as the author is concerned. It's not quite the same as far as The Age and for LiveJournal as entities are concerned... The Age exercises editorial control over its content, so it becomes a liable party to any defamation in its articles (and hence why it does fact checking). LiveJournal does not exercise editorial control (except for technical matters such as size and frequency of posting, and requiring default userimages to be child-safe), so it (like myself as the list owner of the AusBDSM Mailing List) can happily claim to just be a "republisher", and thus use the "innocent disseminator" defense.
Note that if you run an LJ community as moderated, then you might be considered to be exercising editorial control. That might or might not be a problem.
What can you do? Well, check out the LiveJournal Security FAQ. You may also wish to check out my previous post on the subject (Online Defamation is Poo) for more details and a NSW Law Journal article (Safely Out of Sight: The Impact of the New Online Content Legislation on Defamation Law), and the AusBDSM FAQ for the specifics of how I've dealt with the issue of being a republisher.
As far as my own conduct goes... I basically don't post anything that's potentially defamatory anywhere, whether friends only or not. It's just not a good idea.
[ Edited - additional bit about copyright vs defamation ]
Oh, I forgot to mention also - the idea of a potential counter-claim of copyright violation came up (especially applicable to closed posts, but possibly even applicable to public posts) when I was discussing this the other day. Again, IANAL, but I strongly suspect that the counter-claim would fail. Copyright generally has a concept of fair-use, and I suspect (I have not researched this) that copying defamatory material about yourself or someone you know for the purposes of a defamation case would come under the concept of fair-use, or a similar specific exception for evidence gathering.
wildilocks's reply to my Various Neatstuff post.First, let it be known that I Am Not A Lawyer, so the following is not to be taken as definite advice, consult a Real Lawyer if you actually need to take any action in this area. Also bear in mind that most of this is from the perspective of the Australian legal system, and that US constitutional concepts such as "freedom of speech" do not apply here.
Defamation (slander and libel are forms of defamation, one is speech, the other is print, I can never remember which is which, and I don't think that the Internet has been well defined as one or the other, so lets stick to calling it by the umbrella term) is pretty much doing anything that reduces the reputation of an individual.
In some (but far from all, and not even "most") jurisdictions, truth is a defense (and defining truth is a damn messy job in itself). But, even if it's a defense in your local jurisdiction, jurisdiction gets real fuzzy when you're talking about Internet posts. Some could interpret it as applying to where the post is downloaded to (ie, the readers' locations), others to where the post was made from, or even where the publishing server (ie, LJ) lives, or some combination of all three. The currently highest caselaw in the area is Dow Jones v Joseph Gutnick, which is saying that it's the readers' locations that matter, and thus Gutnick has the right to prosecute Dow Jones (in the US, including its servers) for defamation, based on the fact that they knew they had membership in Gutnick's jurisdiction (Melbourne). That case theoretically has gone to appeal, but I haven't heard anything about how the appeal went...
Anyway, that complication aside, something is defamatory if it reduces the reputation of an individual in a material fashion. Lets say you make a friends only post, ranting about some individual. If you have 2 friends on your friends list, neither of whom knows the individual you're ranting about, and you don't post any identifying information about the individual or even information that could be used to identify the individual, then probably you are in the clear for defamation. If you have six hundred friends on your friends list, all of whom work in the same field as you, and you post a big rant about your co-worker and how unprofessional they are, that would almost certainly be considered defamation. If you fit somewhere between those two categories (and most people do), then you're in the grey zone.
Now, if you're not applying any security to the post at all (ie, it's a public post), then hell, that's the same as getting your article on the front page of The Age Online, as far as defamation law and the yourself as the author is concerned. It's not quite the same as far as The Age and for LiveJournal as entities are concerned... The Age exercises editorial control over its content, so it becomes a liable party to any defamation in its articles (and hence why it does fact checking). LiveJournal does not exercise editorial control (except for technical matters such as size and frequency of posting, and requiring default userimages to be child-safe), so it (like myself as the list owner of the AusBDSM Mailing List) can happily claim to just be a "republisher", and thus use the "innocent disseminator" defense.
Note that if you run an LJ community as moderated, then you might be considered to be exercising editorial control. That might or might not be a problem.
What can you do? Well, check out the LiveJournal Security FAQ. You may also wish to check out my previous post on the subject (Online Defamation is Poo) for more details and a NSW Law Journal article (Safely Out of Sight: The Impact of the New Online Content Legislation on Defamation Law), and the AusBDSM FAQ for the specifics of how I've dealt with the issue of being a republisher.
As far as my own conduct goes... I basically don't post anything that's potentially defamatory anywhere, whether friends only or not. It's just not a good idea.
[ Edited - additional bit about copyright vs defamation ]
Oh, I forgot to mention also - the idea of a potential counter-claim of copyright violation came up (especially applicable to closed posts, but possibly even applicable to public posts) when I was discussing this the other day. Again, IANAL, but I strongly suspect that the counter-claim would fail. Copyright generally has a concept of fair-use, and I suspect (I have not researched this) that copying defamatory material about yourself or someone you know for the purposes of a defamation case would come under the concept of fair-use, or a similar specific exception for evidence gathering.
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(no subject)
Date: 2003-12-01 06:49 (UTC)(no subject)
Date: 2003-12-01 07:00 (UTC)Wow!
Date: 2003-12-01 07:03 (UTC)You've applied so much thought & researched thoroughly into the matter. I'm going to be publicizing this on my journal now it has big meaty chunks of fact involved and some very useful links!
Re: Wow!
Date: 2003-12-01 07:32 (UTC)A bit of research later, and a bit of useful advice from a qualified legal practitioner friend regarding wording of the paragraph requiring the defamed to get a real lawyer's advice before I had to do anything, and voila, I get to sidestep any responsibility for defamation that occurs on AusBDSM, whilst still being reasonably protected from having defamation accusations being thrown around willy nilly. And it seems that the list still has the odd flame war, but they don't seem to get quite so ugly as they used to, and shit doesn't get flung in my directio nany more...
And feel free to post a link to this post. Especially do do so if you're going to quote me, rather than just publishing the URLs I've quoted.
(no subject)
Date: 2003-12-01 07:46 (UTC)"innocent disseminator" doesn't always work in Oz where printers are liable.
There are really only four defences against defamation in Oz: truth *or* truth AND in the public interest (depends on state); honestly held opinion and stated to be such; qualified privelege (you told a person you had a duty to tell, like a police officer if you're a doctor who thinks they've found a child abuse case); absolute privelege (you said it in parliament or a court).
Note that a defence against defamation means you HAVE defamed the person and you acknowledge that what you've said/written DOES lower their reputation; it's just that you're arguing you have a reason to defame them.
I doubt defence 4 works online. Defence 3 might do since it worked for Choice Magazine, which won the Bowen gas heater case arguing it had qualified privelege to defame as its subscribers had subscribed in order to get information about faulty products. If you are accused of defaming in a closed post, I reckon you could argue this *if* you are running a journal in which people who sign up are signing up in order to get info that is by its nature defamatory. However, Choice also had to prove that the accusation was true.
The accuser must prove they were sufficently identified. A woman tried to sue a newspaper after a Larson cartoon was published which accidentally had her phone number in it but she lost because the number was not deemed an identifier. However, if you say "the doctors at X hospital", they can all sue you. All people involved in the production of an article can be individually AND collectively sued.
That's all I can remember at this hour of the morning.
(no subject)
Date: 2003-12-01 07:59 (UTC)(no subject)
Date: 2003-12-01 10:46 (UTC)thankyou
Date: 2003-12-01 11:02 (UTC)So thankyou..you have put me on the right path for some decent research
Re: thankyou
Date: 2003-12-01 15:25 (UTC)(no subject)
Date: 2003-12-01 15:32 (UTC)(no subject)
Date: 2003-12-01 15:45 (UTC)Editorial control
Date: 2003-12-01 16:21 (UTC)I used to run a couple of lists at UNSW. In general, I refused to moderate on subject matter - partly for the legal reasons you've mentioned, partly because I prefer to treat people as adults until proven otherwise.
However, I blocked attachments (anything nontext) and screened nonmember posts (killed spam, let everything else through). And in one case, somebody started not only abusing me but spewing junk to the list (apparently trying to get a mailing list to run AIM commands, or something equally screwy). At that point I kicked him, and nobody was very sorry to see him go. But in hindsight I'm curious to know whether those things would have put me into the realm of "editorial control", and if so at what point.
Re: Editorial control
Date: 2003-12-01 16:41 (UTC)(no subject)
Date: 2003-12-01 17:45 (UTC)*giggle*
That is, if you can use the noun acronym as a verb. Why the hell not, people are doing it to google and have done so to xerox and hoover in the past!
(no subject)
Date: 2003-12-01 19:52 (UTC)Well, I guess I am a lawyer, but I found that very, very useful; an excellent precis.
(no subject)
Date: 2003-12-01 21:52 (UTC)(no subject)
Date: 2003-12-01 21:58 (UTC)(no subject)
Date: 2003-12-01 22:02 (UTC)It's kinda scary that after 5 years of uni and 7 months intensive training, most issues / topic in law still have me saying exactly that - here is a precis of what I know, but please get proper advice from an experienced lawyer.
Still, that's all part of the fun ... apparently ;)
(no subject)
Date: 2003-12-01 22:57 (UTC)Xeroid is the internal name for people who work at Xerox. :)
Re: thankyou
Date: 2003-12-01 23:57 (UTC)Now, I have a path to follow.
just need the money for that lawyer now
(no subject)
Date: 2003-12-02 14:14 (UTC)i'm not a lawyer either
Date: 2003-12-08 19:18 (UTC)Re: i'm not a lawyer either
Date: 2003-12-08 22:29 (UTC)(no subject)
Date: 2003-12-08 22:44 (UTC)(no subject)
Date: 2003-12-08 22:46 (UTC)