issues

This page is under redevelopment as of September 2007.

It covers -

• introduction - speech and injury in online and offline environments
• offences - the shape of offences, online and off
• authors and publishers
• email, newsgroups, corporate sites, blogs - are particular publications exempt?
• remedies - responses to online defamation, from legal action to 'out-publication'
• jurisdictions - dilemmas about forum-shopping, extraterritoriality, place of publication and place of reading
• a lex informatica - a global law of information (embodying US cultural values)?
• the big chill - free speech, defamation havens and expectations in self-publishing
• ISPs and telcos - rights and responsibilities of intermediaries

     introduction

Some early theorists characterised the net as necessarily and properly situated outside defamation (and indeed any other) law. Cyberspace would be an embodiment of free speech, devoid of censorship, a realm where discourse would flourish and truth would - somehow - travel more quickly and be more persistent than lies. It would embody US values about free speech and protection of the media, albeit with every site owner and author deserving protection as a publisher.

The governance guide elsewhere on this site suggests that the utopian vision dissipated quite quickly as governments and other interests colonised the playground of self-elected netizens, reflecting the normalisation of the net. Individuals, organisations and governments have accordingly been grappling with questions about rights, responsibilities and remedies.

The accretion of case law means that cyberspace is increasingly looking like the offline defamation landscape, with 'virtuality' involving differences of emphasis rather than fundamental changes of principle. It features -

• action by aggrieved individuals/institutions against publishers or other entities domiciled in different jurisdictions
• jurisdiction-shopping by plaintiffs, in some instances choosing launching action in another country against a publisher that is located in their own country
• international disagreement about the legitimacy of defences (are public figures necessarily 'fair game'?) and the nature or remedies (criminal sanctions? apologies? exemplary or other damages and court costs?)
• action by the powerful to use defamation law to suppress criticism, legitimate or otherwise
• scope for implicitly placing plaintiffs rather than defendants on trial
• subversion of expectations by advocacy groups or other 'enthusiasts'
• difficulties for individuals, rich or poor, who have been defamed by 'crazies'.

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