University of Hong Kong 12 October 2004 Net Defamation

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University of Hong Kong 12 October 2004Net
Defamation

• Peter Bullock
• Partner, Head of Masons Technology Services
  Law Asia Pacific

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• How often do you say something defamatory?

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• would the words tend to lower the plaintiff in
  the estimation of right-thinking members of
  society generally?

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• excused through
• privilege
• justification
• truth

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• e-mails and web-chat place off-the-cuff comment
  on the record in potentially permanent form
• on the Internet people are emboldened

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• is the Internet a lawless place where freedom of
  speech prevails over responsibility for content?

ask Norwich Union
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Who defamed you?

• chat-room libellers likely to appear under a
  pseudonym
• subscription details?
• IP address (at the host ISP)
• e-silkroad -v- Icered
• Hong Kong Courts have power to order the ISP
  and/or messaging provider to deliver up details
  of anonymous libellers
• preliminary step to libel action
• ability to trace IP address to a physical address

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suing your ISP

• ISPs as Post Office or republisher
• why should an ISP be liable for content of its
  servers when impracticable to check all messages?
• U.K. - steps to protect ISPs

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Section 1 (3)(e) Defamation Act 1996

• A person shall not be considered the author,
  editor or publisher of a statement if he is only
  involved as the operator of or provider of
  access to a communications system by means of
  which the statement is transmitted, or made
  available, by a person over whom he has no
  effective control.

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Section 1 (1) Defamation Act 1996

• Defence if
• you are not the author, editor or publisher
• you took reasonable care in relation to
  publication
• you did not know, and had no reason to believe,
  that what you did caused or contributed to the
  publication of a defamatory statement

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where ISP conducts (or reserves) an editing
function

• must react quickly to a take down request
• Godfrey -v- Demon Internet
• ISP slow to remove defamatory messages
• ISP found not to be a publisher (s.1(3)(e))
• but not entitled to s.1 protection as had not
  taken reasonable care
• Hong Kong has no equivalent of 1996 Act

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where should I sue?

• Internet message accessible anywhere (it is not
  blocked)
• prospects for forum shopping
• where is site hosted?
• where was message read by plaintiff?
• where does plaintiff/defendant reside?
• where does plaintiff have reputation?
• what level of damages can I expect?

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pro-claimant stance

• Dow Jones -v- Gutnick
• High Court in Australia allowed a claimant with a
  reputation in Australia to issue proceedings in
  Australia against an American based news agency,
  for an article uploaded in U.S., downloaded and
  read in Australia