In the last couple of articles, we have looked at a particular issue relating to computing, being the “cloud” provision of services.
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| The recent Wikileaks blackout threat |
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That is a very topical issue, and another topical issue raised just recently by the Wikileaks blackout threat, shows just how much difficulty the courts and the legislature are having in trying to come to terms with the most rapidly advancing technological tool that has ever existed.
It is no secret that the law, being patently conservative, struggles to keep up with modern beliefs, attitudes, and technology - this is particularly so in the area of Information Technology.
Information technology, (computers and the uses to which they maybe put), has already raised the interest of the law in areas such as copyright or intellectual property, however, it is not only the area of intellectual property in which the law finds it is faced with practical hurdles to its operation in the conventional sense.
We will be seeing more in relation to intellectual property issues in the mainstream media in the future, and as those issues are well traversed, we will look at another area.
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Slanderous or libellous comments remain defamatory irrespective of the medium involved in publication of the comments. |
One issue that has been raised in relation to modern publication methods is that of defamation.
I do not think the law requires any change in this area, as it will apply the same as ever regardless of the intervention of information technology.
In effect, slanderous or libellous comments remain defamatory irrespective of the medium involved in publication of the comments.
The daily newspapers frequently carry stories of employees and others who have been less than tactful (or worse) in their choice of words used in an email, blog or on social networking sites.
The laws relating to defamation have never been aimed at preventing free speech, simply to allow for some accountability in relation to comments that can cause loss and damage.
Defamation is one of the hardest causes of action to found, and even if defamation itself is proven, there is a secondary issue regarding the quantum of loss and damage that may have been suffered.
If the loss is to reputation only without a financial consequence, then there is little point (in most cases) in pursuing a claim for defamation.
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| Courts and the legislature are having difficulty in trying to come to terms with the most rapidly advancing technological tool that has ever existed |
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In some instances, an individual with a public profile may deem it necessary to try to protect their reputation, however even if an apology may be warranted, the courts are unlikely to be overly impressed by a defamed plaintiff seeking a Court Order to force an apology, where no financial loss and damage has been suffered.
It is an absolute defence to a claim for defamation to show that the comment is true.
Further, careful wording of a comment, may prevent a claim for defamation, and an honest and reasonably held belief stated as an opinion may also escape liability for defamation.
In any event, it is clear that no-one wants to be pursued for comments they have made, and because commentary is so easily and speedily provided using information technology, the danger is that you do not adequately proof-read your comments before submitting them.
This submission is the act of publication required by the defamation law, and, whilst it is well settled that everyone in the process of publication can be found responsible for the defamatory remarks, I am yet to see a court decision where an Internet Service Provider has been held responsible for defamatory comments made by a subscriber making use of its service.
However, I understand legal action for defamation has recently been taken against a media outlet, “aunty” ABC, for allegedly repeating a defamatory claim purportedly made by a blogger, which claim had already been settled on the basis that the blogger in question was not the publisher of the comment.
Melbourne defamation lawyer Mr Stuart Gibson is reported to have said that such cases and a recent decision in Queensland forcing Google to release the identity of a blogger to a man he had abused online - are signs that the internet is no longer an area that can circumvent the laws of defamation.
For those interested in the law and the already massive but still gathering snowball that is information technology, the future looks very interesting indeed.