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BBC News: Libel ruling boosts net providers

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Bloggers and US internet providers cannot be liable for posting defamatory comments written by third parties, the California Supreme Court has ruled.

It followed the case of San Diego woman sued after posting allegedly libellous comments online about two doctors.

Some of the internet’s biggest names including Google, eBay and Amazon have supported a woman in a US legal battle that may save them from libel cases.

The judges said the ruling would protect freedom of expression.

‘Disturbing implications’

Overturning a decision by the San Francisco appeal court, the court ruled that people claiming they were defamed online could now only seek damages from the original author of the comments – and not the website which re-posted it.

The court ruled that that Internet Service Providers were protected by US Federal law that said providers of chat rooms or news groups are not considered the publishers of information furnished by others.

“The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications,” said Associate Justice Carol A. Corrigan.

“Nevertheless … statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended.”

The lawsuit involved a health activist who posted someone else’s letter on her web site. The subject of the letter sued the activist – as well as the author – for libel.

Internet service providers have long argued that, like telephone companies, they were “common carriers” who could not be subject to libel laws.

Story from BBC NEWS:
http://news.bbc.co.uk/go/pr/fr/-/2/hi/business/6167930.stm

Published: 2006/11/21 08:31:58 GMT

© BBC MMVI

RELATED ARTICLE

BBC News: Landmark decision for ‘free speech’

By Torin Douglas
BBC Media correspondent
Thursday, 12 October 2006, 19:46 GMT 20:46 UK 

A judgement in Britain’s highest court has been hailed as a “landmark decision on free speech” and a major boost for investigative journalism in this country.

Lawyers say the ruling brings English libel law more into line with that in the United States, where the media have traditionally had greater freedom to write about public figures.

Five judges in the House of Lords overturned two judgments in lower courts requiring the Wall Street Journal Europe to pay £40,000 in libel damages to a billionaire Saudi businessman.

Mohammad Jameel, whose family owns a car dealership in Oxford, had sued the paper over a report that his bank account was being monitored by the Saudi authorities.

The story said he was one of several prominent Saudis whose financial affairs were being examined at the request of United States agencies, to ensure no money was channelled – intentionally or unknowingly – to support terrorists.

The paper argued in its defence that the story showed how strongly Saudi Arabia was working in the fight against terrorism.

It said printing the story was in the public interest, even if the allegations turned out to be untrue.

Legal defence

This concept of “qualified privilege” is known as the “Reynolds defence”, following a case brought by the former Irish prime minister, Albert Reynolds, against Times Newspapers in 1999.

The five law lords unanimously decided the Wall Street Journal story was in the public interest.

If ever there were a newspaper story which met the test it was this one, Lady Hale said.

“We need more such serious journalism in this country and our defamation law should encourage rather than discourage it,” she said.

Lord Hoffmann said: “The thrust of the article as a whole was to inform the public that the Saudis were cooperating with the US Treasury in monitoring accounts.

“It was a serious contribution in measured tone to a subject of very considerable importance.”

The key words are “serious” and “responsible”, says Mark Stephens, of the law firm Finer Stephens Innocent, who represented the Wall Street Journal in the case.

“This is a decision which will free responsible investigative journalists from threats of libel,” he said.
 We need more such serious journalism in this country and our defamation law should encourage rather than discourage it
Lady Hale 

But he said the public-interest defence would not protect kiss-and-tell “celebrity lover” stories.

Most previous attempts to apply the Reynolds defence have failed, so the judgment will give heart to those journalists and lawyers who have sought its protection.

In July, a leading British book publisher warned of the ‘chilling effect’ the law would have on journalism, after a judge rejected its defence of qualified privilege in a libel action brought by a former police officer.

The case was brought against Orion Publishing and the author Graeme McLagan, a former BBC home affairs correspondent, over their book ‘Bent Coppers’.

In a statement, Orion Publishing said it was “extremely surprised and disappointed” that its case had failed.

“The book Bent Coppers is a serious investigative work covering matters of major public concern” it said.

“If this judgment stands it will have a chilling effect on the ability of authors to write, and publishers to publish, comparable books in future.

This will in turn have a damaging effect on freedom of debate in this country.”

It remains to be seen whether this libel judgment – like the ones against the Wall Street Journal – will be overturned.

Story from BBC NEWS:
http://news.bbc.co.uk/go/pr/fr/-/2/hi/uk_news/6046152.stm

Published: 2006/10/12 19:46:06 GMT

© BBC MMVI

RELATED ARTICLE

BBC News: Free speech, libel and the internet age 

Monday, 31 July 2006

Internet law professor Michael Geist says the issue of free speech and the power of the net to disseminate comment is far from being resolved in law.
 
P2PNet encourages comments on news stories

The Rivoli, a popular Canadian music club in Toronto, Canada may seem like an unusual venue to consider internet free speech.

Yet later this week, it will play host to a fundraiser in support of P2Pnet.net, a Canadian-based website that is being sued for defamation for comments posted on the site by its readers.

The suit, launched by Sharman Networks’ Nikki Hemming, has attracted considerable international attention because of the parties involved – Sharman Networks is the Australian-based owner of Kazaa, the peer-to-peer file sharing service that last week agreed to pay the entertainment industry $100m (£53m) to settle ongoing litigation.

It also highlights the vulnerability of thousands of individuals to defamation lawsuits merely for providing access to other people’s comments.

Both Sharman Networks and Hemming sued P2Pnet last spring, claiming that an article and accompanying comments posted by readers of the site were libellous.

Vigorously disputed

Jon Newton, the owner of the site, has vigorously disputed the suit, pointing to the need to protect free speech and to ensure that defamation laws cannot be used to stifle comment.

Sharman Networks recently dropped its claim, however the Hemming suit continues.

The case places the spotlight on the liability of internet intermediaries. The importance of the issue extends well beyond just internet service providers – corporate websites that allow for user feedback, education websites featuring chatrooms, or even individual bloggers who permit comments face the prospect of demands to remove content that is alleged to violate the law.

The difficult question is not whether these sites and services have the right to voluntarily remove offending content if they so choose – no one doubts that they do – but rather whether sites can be compelled to remove allegedly unlawful or infringing content under threat of potential legal liability.

The answer is not as straightforward as one might expect since the law in Commonwealth countries such as the United Kingdom, Canada, and Australia varies depending on the type of content or the nature of the allegations.

Unproven allegation

In the case of child pornography, most jurisdictions do not require a site to remove content based merely on an unproven allegation. Instead, sites can only be compelled to remove such content under a court order.
What are the implications of free speech?

Copyright infringement claims are treated differently in various jurisdictions. Canadian law does not require a site to remove contested content.

Liability would depend on whether the site can be said to have authorised visitors to infringe copyright.

The Supreme Court of Canada has set a high threshold to determine when a party “authorises” infringement. Merely hosting content, even after being made aware of an unproven infringement allegation, is unlikely to meet that standard.

Other countries, most notably the United States, have implemented “notice and takedown” systems that provide intermediaries with a legal safe harbour provided that they promptly remove take down content upon notification.

Limited opportunity

The poster is provided with a limited opportunity to respond to the infringement allegation. The intermediary can choose to ignore the takedown request, though it faces potential liability if a court later confirms the infringement claim.

The role of judicial oversight and legal balancing for illegal and infringing content is essential, since it navigates the fine line between preserving free speech on the one hand and ensuring that harmful content can be taken offline in appropriate circumstances on the other.

However, as P2Pnet has learned to its chagrin, allegations of defamation are the exception to the rule.

Under the law in countries such as Canada, the UK, and Australia, intermediaries can face potential liability for failing to remove allegedly defamatory content once they have received notification of such a claim, even without court oversight.

Indeed, several recent cases in the UK and Australia involving Dow Jones, a US publisher, have sent a strong message that intermediaries ignore defamation claims at their peril.

As a result, many ISPs and websites remove content in response to unproven claims, even if they privately doubt that the content is indeed defamatory.

Legal risk

From the company’s perspective, there is no legal risk to remove the content, yet there is potentially significant risk for failing to do so.

Given how easily content can be forced off the internet with claims of defamation, the law creates a significant restriction on free speech.

Intermediaries are understandably reluctant to ignore threats of litigation, yet without a legal safe harbour that protects them from liability, it is likely that the number of questionable defamation claims will continue to rise.

Addressing the free speech issue would require legislative change.

For example, the United States enacted a law 10 years ago that provides broad immunity for intermediaries that host third-party content. That provision has since been used dozens of times to immunize ISPs, large companies such as Amazon.com, and small websites who could ill-afford to fight legal challenges.

A similar provision in the Commonwealth countries would protect sites such as P2Pnet, as well as the thousands of ISPs, websites, and bloggers, who are contributing to a robust online dialogue, but today find themselves vulnerable to lawsuits whose primary purpose may be to suppress legitimate speech.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law.

 

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