TOPIC 7 Freedom of Expression, Online Social networking, Blogging, Defamation and Privacy in Cyber-space 1

Introduction  Technological evolution has brought significant changes in information and communication industry.  Information sharing between one person and another has been made easier after the invention of the Internet.  Communications from one place to another are taking place within a short period covering vast distances from one region to another, and the information communicated reaches a great number of persons. 2

Continue  Most of news media houses now publish their news on the Internet  There are hundreds of social networks like  Myspace, mocospace, facebook, hi5, twitter, person.com, jhoos, linkedin, etc-which attracts subscribers to share information all around the world ▪ Most of subscriptions are free but owners of these social networks earn millions of dollars each year through adverts made in these social networks  Apart from social networks, the Internet has made easy information through forums, newsnet, blogs, bulletin boards, etc 3

Continue  Freedom to publish materials on the internet is part of the freedom of expression  When a person uploads any statement, materials in any form on the Internet and makes such material accessible to other users, such process constitutes publication.  In Rindos v Hardwick, Australian Supreme Court No 993 of 1994 the court stated Internet communication is publication provided that such publication is in a form which makes a user of the Internet to access it, read and understand what is contained within such publication 4

Defamation and the Internet  A statement is defamatory [if] it is calculated to lower him in the estimation of right-thinking members of the community or to cause him to be shunned or avoided or expose him to hatred, contempt, or ridicule  See Sim v Stretch [1936] 2 All ER 1237; Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340.  In determining whether the words or conduct is defamatory, the inquiry involves;  The meaning of the words or conduct  Whether such meaning is defamatory 5

Continue  In Jeffrey Kennett v Nationwide News, Vic SC, 11 March 1999, , the court stated that;  “The plaintiff must satisfy that... the imputations… were likely to injure [the plaintiff’s] reputation, or, to put it another way, that they would tend to lower [the plaintiff] in the estimation of right thinking people...” 6

Continue  At common law for the plaintiff to prove a defamatory action has to ensure that the alleged defamatory statement or conduct must have three elements;  There should be publication  The publication must have identified him (plaintiff)  It must have defamatory meaning  There are two forms of defamation;  Slander  Libel 7

Continue  Defamation on the Internet occurs  Where a person sends another person an message containing defamatory remarks about another (natural or juristic) person (or its products)  Posting a defamatory message on a web bulletin board  Making a defamatory statement in a discussion forum of a website or social network  Uttering defamatory words during a video-conference taking place via the Internet 8

Continue  In Rindos v Hardwick Australian Supreme Court, No. 993 of  An entry was placed on the bulletin board by the defendant  That entry imputed that the plaintiff had engaged in sexual misconduct with a local boy, and that his academic reputation was not based on appropriate academic research  The bulletin board in question was mainly used by academics and students, and according to the court was accessible by upwards of 23,000 people world-wide. 9

Continue  It was noted that items placed on the board could also be printed out, and be distributed in hard copy.  The defendant made no effort to justify his comments, and did not defend his action in court.  The court gave the decision in favour of the plaintiff and awarded him damages  If material is published in a foregn language there is no publication for the purpose of defamation law unless that third person is capable of understanding the meaning of that material published in a foreign language-same to encrypted material. 10

Multiple Publication Rule  This is a common law rule  A longstanding common law principle that each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period.  It is an old rule laid down in the case of Duke of Brunswick v Harmer. [1849] 14 QB 185.  In that case the Duke sued in respect of defamatory allegations some 17 years after the original publication was made (the original publication was made on 19 September, 1830). 11

Continue  The Duke sent his servant to buy back issues of The Weekly Dispatch, which he had heard contained a defamatory article about him.  The servant obtained one copy from The Weekly Dispatch’s office and the other from the British Museum. The Duke sued on both.  The Weekly Dispatch argued that the cause of action was time barred; relying on the original publication date (the limitation period for libel at that time was six years since the date of publication).  The court held that the delivery of the two copies constituted two fresh publications and that the Duke was, accordingly entitled to sue.  This was the birth of the ‘Multiple Publication Rule’. 12

Continue  In England, under the Limitation Act 1980, each separate publication is subject to a limitation period of one year, which runs from the time at which the material is accessed.  This gives application to what is known as ‘multiple publication rule’ which has been applied in a number of cases within and outside England.  Most of commonwealth countries which have common law influence in their legal systems apply the Multiple Publication rule 13

Continue  The rule was applied in It was upheld with respect to Internet publication by the House of Lords in Berezovsky v Michaels [2000] 1 WLR  Was then used also by the Court of Appeal in respect of archived material in Loutchansky v Times Newspapers Ltd [2002] 1 All ER 652.  In Loutchansky’s case, a Russian businessman brought two actions against The Times for libel.  The first related to articles published in October 1999, which were subsequently placed on The Times’s online archive and were available for the public to access. 14

Continue  The claimant brought a second action in December 2000 (more than one year after the original publication) in relation to the online archive.  The Court of Appeal was asked to consider two issues in respect of the second action:  the limitation period applicable to archives; and  the nature of any privilege that would attach to them.  The Court held as follows on the issue of limitation: ▪ “It is a well established principle of the English law of defamation that each individual publication of a libel gives rise to a separate cause of action subject to its own limitation period.” 15

Continue  Multiple Publication rule has posed various challenges in online publication, eg  how many separate publications of an message occur when it is sent from one computer to another and on its way it passes several other computers before being delivered to its recipient?  This question was answered by the Malayan High Court in the case of Lee Teck Chee v Merril Lynch International Bank Ltd. [1998] 4 CLJ 188,

Continue  The Court (applying multiple publication rule) held that;  The number of computers through which the message has passed does not matter;  It is the number of computers on which the message has been displayed and seen that determines how many separate publications of the message have occurred.  The Court seems to say each display of a message on a single computer constitutes a separate publication!  What do think are the challenges of this holding? 17

Continue  Another difficulty is where the website has multiple pages  The question is whether each page of the same website constitutes a separate publication  In Australia (which applies also multiple publication rule), a full Court of the Western Australian Supreme Court in The Buddhist Society of Western Australia Inc v Bristile Ltd, [2000] WASCA 210, held that; 18

Continue  Separate letters and other material on the same website constitute separate publications.  The court also noted that each part of website was a separate file.  The challenges posed by multiple publication rule, particularly on freedom of expression, forced a call for reforms in that law and the Justice Ministry in UK issued a paper last year, 2010 calling for responses from the public on whether to continue with the rule or adopt the “US” single publication rule. 19

Single Publication Rule  The rule which popularly applicable in the US  The rule is set in 577A Restatement of Torts, 2d (1977) which is headed Single and Multiple Publications.  Under this Rule, publication occurs when the defamatory work first becomes generally available to the public or is placed on sale. 20

Continue  In Gregoire v Putnam’s Sons. 298 NY 119 the Court of Appeals stated that; “Recognizing that radical changes have been brought about by modern methods of disseminating printed matter for which there is a widespread demand, and desiring to avoid multiplicity of suits and to give effect to statutes of limitation, adjudicated cases disclose that within recent years courts of this State and other jurisdictions have ruled that the publication of a defamatory statement in a single issue of a newspaper, or a single issue of a magazine, although such publication consists of thousands of copies widely distributed, is, in legal effect, one publication which gives rise to one cause of action and that the applicable Statute of Limitation runs from the date of that publication.” 21

Continue  An illustrative example of the application of single publication rule can be seen in the case of Firth v State of New York. 706 NYS 2d 835 (NY Ct Cl, 2000).  In that case, George Firth (the plaintiff), was employed by the New York State Department of Environmental Conservation (DEC) as its Director of the Division of Law Enforcement.  In May of 1992, the New York State Office of the Inspector General undertook an investigation of certain activities of the DEC. 22

Continue  As a result of this investigation, on December 16, 1996 the Inspector General issued a report at a press conference entitled “the Best Bang for Their Buck” which, according to the Court, was “highly critical of Firth’s management style and procurement of weapons”.  On the same date, the report was published on the Internet, where it was maintained continuously thereafter in unaltered fashion. 23

Continue  On March 3, 1997, Firth sent a notice to the Attorney General setting forth his intention to file a claim alleging, inter alia, that the defendant, by issuing the report, libelled, slandered and defamed him.  Thereafter, on March 18, 1998, Firth commenced the action, in which he alleged, inter alia, that defendant defamed him by publishing the report at issue.  The defendant moved a motion before the Court requesting the dismissal of Firth’s complaint on the ground that it was time barred citing the Statute of Limitation which provides for a one year limitation period. 24

Continue  Firth did not commence his action within the prescribed period and instead commenced it more than one year after the date on which the report was first published on the Internet.  Firth argued that the continued availability of the report on the Internet constituted repeated republications thereof, which, in turn, started afresh the one year applicable limitation period each day the report remains available for public access. 25

Continue  The Court of Claims rejected this argument, holding that the publication of this report on the Internet was subject to the “single publication rule”  The Court further stated that;  Applying established rules of law applicable to the accrual of defamation actions in this state requires a finding that the one year Statute of Limitations began to run on December 16, 1996, the date of the Report’s original publication and the date when the Report was first made available on the Internet where it has remained unaltered to this date. 26

Continue  Concerns regarding the rapid pace of changes in the way information is disseminated, the desire to avoid multiplicity of suits and the need to give effect to relevant Statutes of Limitation which give rise to the single publication rule enunciated in Gregoire v Putnam’s Sons, supra, 298 NY 119, are no less germane today than at the time of the rule’s adoption. 27

Continue  This Court sees no rational basis upon which to distinguish publication of a book or report through traditional printed media and publication through electronic means by making a copy of the text of the Report available via the Internet.  While the act of making the document available constitutes a publication, in the absence of some alteration or change in form its continued availability on the Internet does not constitute a republication to begin the Statute of Limitations anew each day.” 28

Other jurisdictions  Most of countries which have common law influence apply the Multiple Publication Rule.  A move by the UK to reform such an ancient legal position may influence other countries to re-consider their legal positions  Such move is basically motivated by a need to enhance freedom of expression on the Internet  For a position in South Africa, see the case of Tsichlas & Another v Touch Line Media (Pty) Ltd (2) SA 112 (W); [2006] JOL (W). 29