The
Law of the Net
Cyber
libel and problem of jurisdiction
Abu
Hena Mostofa Kamal
To
the dwellers of this civilised world, both freedom of speech and reputation
are progressively more significant than any other rights. In our society,
it is accepted that individuals have a right to express their own views
and preferences. To them, reputation is also a sensitive issue and thus
protection from any defamatory statement easily becomes a matter of
importance. The law of defamation seeks to balance these two opposing
interests for years and lawyers are scuffling with the problematic issues
arising from this particular area for centuries. But presently, they
find themselves increasingly unsettled by thinking about the extent
and scope of the modern law of defamation and its application in this
hi-tech society.
Defamation is essentially
a tort and defamation law is an area of significant complexity. In laymen's
point of view, if a person says (legally termed as slander) or writes
(libel) something damaging to the reputation of another person then
the words are said to be defamatory. The law of defamation is designed
to protect a person's reputation by providing an injured party with
the right to sue for damages. To sue a defamatory statement maker, it
is essential that the statement must be published. Publication means
the communication of the defamatory statement to at least one person
other than the person defamed.
Before going to
the core of the subject matter, let us first discuss how a person defames
another individual with the aid of net technology. For example, Shaggy,
a citizen of Austria resides in Bangladesh send a libellous article
to an Internet service provider (ISP) in Spain who published the defamatory
essay in their web page. Furthermore, Shaggy posted another defamatory
statement on a renowned bulletin/massage board hosted by another Spanish
web-developer firm. Due to Shaggy's mischievous action Daphne's (UK's
citizen) reputation suffered repairable damage. Daphne seeks to sue
Shaggy and both ISP. There is no doubt that Shaggy is liable for disseminating
a cyber libel. But this scenario gives raise to quite a few attention-grabbing
questions, such as: (a) Does Internet service providers (ISP) are liable
for their clients defamatory statement (b) In which jurisdiction did
the publication of the defamation occur (In Spain, Austria, England
or Bangladesh)? (c)In what jurisdiction should the plaintiff sue and
which country's law should apply? Let us now discuss all these issues
of cyber libel chronologically.
The
position of Internet Service Providers (ISPs)
Generally, the term "ISP" refers to companies that provide
access to the Internet .For a monthly fee, the ISP gives users a username,
password and access phone number, basic services like email accounts,
newsgroups and chat rooms. However, the settled legal opinion is that
an ISP can very easily become responsible for its content. But an ISP
is not liable in defamation for material passing through his system,
where there is no reason to know of it. In this case, ISP's position
is like Telephone Company, who cannot be held guilty for its client's
wrongdoings. But an ISP can become liable where it either knows about
the libellous statement, or where some special circumstance suggests
that it ought to have known the existence of libel. We may compare an
ISP's position with a newsagent or a distributor in this circumstance.
'Distributors', such as bookstores or newsstands enjoys the benefit
of the 'innocent disseminator' defence. Innocent disseminators are protected
from liability for defamation, as they don't have any knowledge of the
libellous statement in a magazine or book. An ISP, in the 1999 English
High Court case of Godfrey v. Demon Internet Ltd. was found liable in
defamation after failing to remove defamatory remarks in a posting to
a Newsgroup forum following a request to do so by the plaintiff. Two
American cases Cubby, Inc. v. CompuServe Inc. (CompuServe case) and
Stratton Oakmont, Inc. v. Prodigy Services Co. (Prodigy case) are also
famous for their landmark judgement. In both cases, the court conclude
that the operator of a bulletin board or information service would not
be liable if there was no editorial control attempted, but would be
liable if the attempt was made and failed, no matter how reasonable
the attempt.
Problem
regarding the jurisdiction
Defamation laws vary from country to country and in countries like Canada,
Australia and United States, it can vary from province to province and
state to state. Therefore, plaintiffs may have the luxury of "forum
shopping" or choosing the jurisdiction in which the laws most favourable
to him. However, as per the Brussels Regulation, defendants should be
sued in their own country. But under the law of most jurisdictions,
a plaintiff has a right to sue in any among the jurisdictions wherein
the defendant is domiciled or carries on business, or in which the tort
was committed (the place where the publication occurred). Where a libel
is placed on a website, which was accessed from various countries, a
claimant can either to sue for (i) all the publications in the defendant's
country of residence or (ii) establishment or (iii) he may commence
separate proceedings in each of the jurisdictions where the libel has
been accessed. Once the plaintiff has chosen a court system, the procedural
rules of that jurisdiction are applied to the case. If the application
of the law of that jurisdiction is challenged as inappropriate, courts
will usually apply the law of the jurisdiction that has "a genuine
and significant nexus" with the defamation at issue.
Overstepping
the jurisdiction: Yahoo.fr case
In France, Yahoo auction sites were selling Nazi memorabilia or other
items related to Nazism. Undisputedly, French law prohibited selling
such merchandise in France. On May 22, 2000, the Tribunal de Grande
Instance de Paris (French Court) issued a preliminary injunction against
Yahoo.com, ordering the site to take all possible measures to dissuade
and prevent access in France of Yahoo- auction sites that sell such
merchandise. The decision of this case became a matter of immense importance
and noteworthy as the suit was brought not only against Yahoo.fr (Yahoo's
French subsidiary), but also against Yahoo.com (an American corporation).
The reason behind this precedent establishing decision was that these
auction web sites were hosted by Yahoo's non-French servers and maintained
from out side of French. Shutting down access to web pages on Yahoo.fr
would not serve the purpose as French citizens can simply go to Yahoo.com
and access those same pages. But Yahoo argued that in order to comply
with the injunction it would need to remove all the web pages from its
servers permanently. Thus such material would not be available to non-
French citizens, many of whom have the right to access the materials
under the laws of their countries. Yahoo contended that the French assertion
of jurisdiction was impermissibly extra-territorial in scope. However,
on appeal the French court did not recognise the empirical basis for
Yahoo's position and reissued its injunction. This case is the perfect
example of the fact that the national court has the power to act beyond
their jurisdiction in Internet related cases. Bearing in mind the seriousness
of a cyber libel, in near future, it is possible that a domestic court
will act beyond their jurisdiction and issue injunction or to award
damages to the injured party.
Abu
Hena Mostofa Kamal is studying Bar Vocational Course at the University
of Northumbria, UK.
