 Suing "iamkelly_78"
In this IP Update Newsletter, our lawyers consider the various legal issues surrounding Internet defamation and provide commentary on some recent cases, looking at the legislative hurdles in attaching liability to an Internet Service Provider (ISP) or Internet Content Host (ICH).
Practical issues in actioning Internet defamation
Early in 2007 newspapers reported that High Court Justice Michael Kirby was the subject of a fake online profile posted on the "MySpace" Internet site. The author of the fake profile claimed to be Justice Kirby and included a malicious and fabricated letter to the author's parents about his sexuality.
If he were minded to do so and had the means of identifying the impostor, Justice Kirby would be entitled to commence a defamation claim against the authors. The more readily identifiable defendant, the ISP or the ICH, is likely to be less vulnerable to prosecution.
You can't shoot the messenger
Were it not for legislative provisions which protect the ISP/ICH, the increasing popularity of Internet forums such as online blogs, chat rooms, discussion boards and other web forums would carry with them a range of legal exposures.
These legislative provisions, reinforced by the uniform defamation legislation in 2006, prevent a plaintiff from "shooting the messenger".
Typically, an ISP/ICH is immune from liability for third party content except where it had or has knowledge of the defamatory material. Under Australian uniform defamation laws, (section 31) an ISP will have a defence to the publication of defamatory material if it was "innocently disseminated." Innocent dissemination will be a defence for an ISP/ICH if:
• it published the alleged defamatory matter merely in the capacity of a "subordinate distributor," • it neither knew, nor ought reasonably to have known, that the matter was defamatory, and • its lack of knowledge was not due to
negligence. An ISP/ICH will be considered to be a "subordinate distributor" if:
• it is not the "first or primary distributor," • it is not the author or originator, and • it did not have the capacity to exercise editorial control over the matter before it was published. An ISP/ICH will not be considered to be the "first or primary distributor" merely because it was the provider of the service which allowed the matter to be made electronically available, or because it was an operator of a communications system which allowed the matter to be made available by a third person over whom the ISP/ICH has no effective control.
In terms of accessibility for an ISP/ICH the provision falls somewhere between the USA position[1] which provides federal immunity to the ISPs, and the UK legislation which protects an ISP/ICH that can show it "took reasonable care" in relation to the relevant publication.
The uniform defamation provisions echo the provisions in the Broadcasting Services Act 1992 (Cth)[2] and provides protection to an ISP/ICH which is akin to the common law innocent dissemination defence. It provides that a person will not be liable for any content hosted or delivered if they were not aware of it. It also removes any positive obligation for an ISP/ICH to monitor, make inquiries about or keep records of the content hosted or provided.
An ISP/ICH may however be sent a "take-down notice" by the Australia Broadcasting Authority (ABA). If the content is hosted in Australia and the ABA determines that it is prohibited, or is likely to be so, the ABA will direct the ISP/ICH to remove the content from its service.
If the content is not hosted in Australia and is prohibited, or is likely to be so, the ABA will notify the content to the suppliers of approved filters in accordance with the Internet Industry Association's code of practice. An individual who is the victim of a defamatory posting will also be able to remove the legislative shield, by putting the ISP/ICH on notice of a posting which is defamatory.
Lifting the cyber veil
Given the legislative hurdles in attaching liability to an ISP/ICH, a victim of defamation is likely to set their sights on the author of a defamatory work. Typically, an Internet posting is made under a username, which may bear no relation to its author's actual identity. This is particularly likely when the author is malicious in the posting and wants to escape real-world liability.
A recent case on this issue involved an anonymous attack upon aviator/businessman Dick Smith[3] posted under a pseudonym on a website forum known as Professional Pilots Rumour Network. In registering as a user on the forum, the individual had not provided any information which could lead to her identification. In this case the individual was able to be identified through Supreme Court preliminary discovery proceedings.
As part of the negotiated settlement of the proceedings, the Defendant published an apology on the website forum under her real name which included a warning based upon her experience: "If you think that a posting is anonymous you are mistaken, and it can be an expensive mistake." In that case, the identification process involved:
• making inquiries with the internet host (the website forum operators) for the IP address of the ISP from which the postings emanated[4], • obtaining the digital "fingerprint" left at the time of each posting in the form of the "migrating IP number" which attached itself to each posting of concern, and the precise timing of the posting, • making a request to the relevant ISP for the identity of the subscriber based upon the series of migrating IP addresses, and • when the ISP declined the request, citing Privacy Act and contractual concerns arising from end-user agreement with the customer, an application was made to the court[5] to order preliminary discovery to ascertain the identity of the person using the pseudonym. Once compelled by court order, the ISP provided the name and address of the customer, overcoming its contractual and privacy concerns in the process.
The circumstances, the technology and the legal processes converged to give a clear identification of the defendant. The defendant had joined the forum from her home computer, situated in Australia, through an internet account where her real name, address and billing details had been provided to an Australian ISP.
Postings from one or more walk-in internet cafes or via an ISP in a foreign jurisdiction would have been less fruitful.
Conclusion
An ISP is currently under no obligation to monitor the content on the websites it services however, this does not mean it will not be held liable for third party content if it knows that the content is defamatory. This is likely to include the failure of an ISP to remove material from a site once it is advised that it is defamatory.
Whilst the legislation recognises that ISPs may not always be in a position to know what content is being posted on a website it services, it does still leave open an avenue of relief for those who discover that their reputations are being damaged in an online chat room or blog - somewhere in cyberspace. That is, providing of course that a plaintiff can identify the defendant author, which requires a happy coincidence of fact and law.
Contributors: Christine Ecob (partner), Kevin Lynch & Natalie Truong
Footnotes
[1] Communications Decency Act 1996 (USA)
[2] Clause 91(1) of Schedule 5
[3] Richard Harold Smith v Actew Retail Limited (and 2 ors) Supreme Court Case No. 15029/06.
[4] In this case, the website forum operator was cooperative, allowing inquiries to shift to the ISP. Without cooperation, the prospective plaintiff may need to consider deploying the preliminary discovery process used in step 4 of the process at this earlier stage.
[5] The application was made by was of a Summons to Ascertain prospective defendant's Identity pursuant to Uniform Civil Procedure Rule 5.2. The summons was supported by an affidavit outlining the background to the application, the nature of the internet forum and the offending postings, the basis for the cause of action and the reasonable inquiries that had been made to ascertain the identity of the author. |
