I am not a lawyer. In fact, the most I know about unnecessarily long
legal documents is that all the nested <ol>s make them a pain to
mark up - but I'm going to give this a go none-the-less.
The 1996
Defamation Act gives the definition of the publisher and possible
defences. I believe the relevent passages are in Section 1,
Responsibility for Publication (which the judge threw out; see later in this post). I'm not going to reproduce lengthy
passages here, but they're not very hard to read. I'm going to make comments
based on my understanding of Godfrey vs. Demon Internet.
1.1b, c: Grounds for defence If an ISP has been warned about
defamatory content and has power to delete it (Demon was warned and does
have that power) then they must prove they are not the publisher.
1.3c, e: Exceptions to the definition of a publisher These statements
hinge on the fact that its the message that matters, not the media, and that
a communications provider has no control over the person making the
defamatory statement. I'm not sure why (c) is not a defence because it seems
to me that Demon are effectively duplicating the message (in the Usenet
cache). But: Since ISPs want to be carriers they want to be covered by (e)
and claim it is not possible to control transmissions - unfortunately it is
because they have a cache. For (c) to be applicable though you'd have to
agree that a cache is an electronic medium (does an electronic medium have
to be discrete?), and also that it wasn't the ISP who were providing the
communications network by which the contents of the cache were being
retrieved by the end user, it was the end user's telco.
However, as much as I consider the Godfrey vs. Demon case it really doesn't
help for hosted websites who move their servers due to the fact that the
ISPs could be considered publishers - although I'm convinced that 1.3c would
excempt on that score. It can't be the case that simply because an ISP has
the power to delete a website it is a publisher because otherwise you would
be guilty if you saw a person handing out defamatory leaflets and you didn't
attempt to stop them.
This post is already far too long, but I'd like to chuck a couple of other
articles into the mix: The reform of
British defamation law is an essay that came fairly high up in Google,
so it must be good. An article about defamation law with a New
Zealand perspective is interesting because it explains the judge's
argument. Apparently although an ISP isn't a publisher by the section 1
definition, it is in the broader sense. The case depends on the fact that
Demon was given notice and did not respond.
So what to do? There needs to be legal clarification, but I don't know which
of precedent or an Act will be necessary. The legal costs for such a case
are too high for an ISP to try for a test case for the greater good. I'm
confident that eventually the law will reflect the obvious nature of the
internet, but it's going to take a few years. How to get to that point?
Wait, I guess, for the next generation of MPs and judges. By the way, please
enlighten me if I've made you
choke on your cornflakes.
I am not a lawyer. In fact, the most I know about unnecessarily long legal documents is that all the nested <ol>s make them a pain to mark up - but I'm going to give this a go none-the-less.
The 1996 Defamation Act gives the definition of the publisher and possible defences. I believe the relevent passages are in Section 1, Responsibility for Publication (which the judge threw out; see later in this post). I'm not going to reproduce lengthy passages here, but they're not very hard to read. I'm going to make comments based on my understanding of Godfrey vs. Demon Internet.
1.1b, c: Grounds for defence If an ISP has been warned about defamatory content and has power to delete it (Demon was warned and does have that power) then they must prove they are not the publisher.
1.3c, e: Exceptions to the definition of a publisher These statements hinge on the fact that its the message that matters, not the media, and that a communications provider has no control over the person making the defamatory statement. I'm not sure why (c) is not a defence because it seems to me that Demon are effectively duplicating the message (in the Usenet cache). But: Since ISPs want to be carriers they want to be covered by (e) and claim it is not possible to control transmissions - unfortunately it is because they have a cache. For (c) to be applicable though you'd have to agree that a cache is an electronic medium (does an electronic medium have to be discrete?), and also that it wasn't the ISP who were providing the communications network by which the contents of the cache were being retrieved by the end user, it was the end user's telco.
However, as much as I consider the Godfrey vs. Demon case it really doesn't help for hosted websites who move their servers due to the fact that the ISPs could be considered publishers - although I'm convinced that 1.3c would excempt on that score. It can't be the case that simply because an ISP has the power to delete a website it is a publisher because otherwise you would be guilty if you saw a person handing out defamatory leaflets and you didn't attempt to stop them.
This post is already far too long, but I'd like to chuck a couple of other articles into the mix: The reform of British defamation law is an essay that came fairly high up in Google, so it must be good. An article about defamation law with a New Zealand perspective is interesting because it explains the judge's argument. Apparently although an ISP isn't a publisher by the section 1 definition, it is in the broader sense. The case depends on the fact that Demon was given notice and did not respond.
So what to do? There needs to be legal clarification, but I don't know which of precedent or an Act will be necessary. The legal costs for such a case are too high for an ISP to try for a test case for the greater good. I'm confident that eventually the law will reflect the obvious nature of the internet, but it's going to take a few years. How to get to that point? Wait, I guess, for the next generation of MPs and judges. By the way, please enlighten me if I've made you choke on your cornflakes.