Making excuses

As readers may have noticed, I haven’t been posting much over the last week or so. I apologise belatedly for the hiatus. I’ve been flat out marking exams and essays, and cranking up the systems for NTU/CDU’s external law degree program. It’s being delivered solely via the Internet, and I’m responsible for co-ordinating and developing it and providing support and initial technical tuition to technophobic academic staff. The external degree preparations are likely to remain in panic mode for some weeks yet, but I’m almost finished marking, so normal blogging should resume within a few days.

In the meantime, I’ve made mental notes of several topics on which I intend blogging when I get time. The first is a post by Scott Wickstein a couple of days ago, in which he summarised a recent US court decision as holding “that bloggers can’t be sued for libels that they republish”. US legal academic blogger Jack Balkin has a more detailed discussion of the decision here.

The US decision flows from judicial interpretation of the so-called ‘innocent disseminator’ defence in section 230 of the 1996 Telecom Act (US). Section 230 was enacted in the wake of an earlier court decision in Stratton Oakmount, Inc and Porush v Prodigy Services Company. In that case, Prodigy was sued over the content of messages posted to an Internet bulletin board it hosted. Prodigy promoted its service as `family oriented’. The plaintiff succeeded because Prodigy had held itself out as exercising editorial control and implementing editorial controls through screening software.

Section 230 provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Thus American bloggers are certainly protected from defamation or other action in relation to material posted by others in their comment boxes. The courts have even held that the section extends protection even where an Internet publisher (including a blogger) actively republishes (say) an email of whose content he is aware, and even if he makes minor editiorial changes to it. That’s essentially because it remains “information provided by another”.

Australia has also enacted an ‘innocent disseminator’ defence covering Internet publication. However, it’s much more limited than the US provision, and only protects a content provider (e.g. a blogger) where she doesn’t actually know that the defamatory material has been published on their service (e.g. in a comment box). Section 91 of the Broadcasting Services Act 1992 (Cth) (as amended by the Broadcasting Services Amendment (Online Services) Act 1999) provides:

91 Liability of Internet content hosts and Internet service providers under State and Territory laws etc.

(1)A law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:

(a) subjects, or would have the effect (whether direct or indirect) of subjecting, an Internet content host to liability (whether criminal or civil) in respect of hosting particular Internet content in a case where the host was not aware of the nature of the Internet content; or
(b) requires, or would have the effect (whether direct or indirect) of requiring, an Internet content host to monitor, make inquiries about, or keep records of, Internet content hosted by the host; or
(c) subjects, or would have the effect (whether direct or indirect) of subjecting, an Internet service provider to liability (whether criminal or civil) in respect of carrying particular Internet content in a case where the service provider was not aware of the nature of the Internet content; or
(d) requires, or would have the effect (whether direct or indirect) of requiring, an Internet service provider to monitor, make inquiries about, or keep records of, Internet content carried by the provider.

The moral of the story? You probably can’t be sued if you don’t read your own comment boxes, unless the allegedly defamed person brings the comment to your attention and you still fail to remove it. However, it isn’t obvious to me why you’d bother to have a comment facility if you didn’t read the comments. Nevertheless, at least section 91 gives you limited protection if some idiot publishes a defamatory comment on your blog and it takes you a while to discover it.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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