Universities, Defamation and the Internet
| Date | 01 January 1999 |
| Author | Douglas W. Vick,Sarah Cooper,Linda Macpherson |
| DOI | http://doi.org/10.1111/1468-2230.00191 |
| Published date | 01 January 1999 |
Universities, Defamation and the Internet
Douglas W. Vick,* Linda Macpherson and Sarah Cooper**
The potential effect of defamation law on discourse over the Internet has attracted
considerable comment,1in part because a high proportion of the small number of
lawsuits arising out of Internet communications have involved defamation claims.2
If the threat of defamation liability becomes an important means of regulating
expression on the Internet, the law of England and Wales3is likely to play a central
role in this development. London’s appeal to libel plaintiffs extends beyond the
shores of the United Kingdom, with potential litigants attracted by several
substantive advantages afforded claimants by English law4and by London’s recent
history of large damage awards and settlements in libel cases.5English courts will
usually exercise jurisdiction over cases involving parties who do not reside in
Britain so long as the defamatory statement at issue is ‘published’ (disseminated to
others) within England and Wales.6Since virtually all statements made on the
The Modern Law Review Limited 1999 (MLR 62:1, January). Published by Blackwell Publishers,
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58
*Stirling Media Research Institute, University of Stirling.
**Heriot-Watt University.
We would like to acknowledge Gavin Little, Nancy Morris, and Pieternella Roberts for their help in
designing the survey used in this study, and Lesley McIntosh for her secretarial assistance.
1 See eg C. Counts and C.A. Martin, ‘Libel in Cyberspace: A Framework for Addressing Liability and
Jurisdictional Issues in This New Frontier’ (1996) 59 Albany L Rev 1083; P. Niehaus, ‘Cyberlibel:
Workable Liability Standards?’ (1996) U Chicago L Forum 617; C. Waelde and L. Edwards,
‘Defamation and the Internet: A Case Study of Anomalies and Difficulties in the Information Age’
(1996) 10 Int’l Review of Law Computers and Technology 263.
2 Actions have been brought in Australia, the United Kingdom, and the United States. See eg F.
Auburn, ‘Usenet News and the Law’ (1995) 1 Web Journal of Current Legal Issues,
webjcli.ncl.ac.uk/articles1/auburn1.html> (discussing Rindos vHardwick, unreported, Supreme Court
of Western Australia, 31 March 1994); C. Dyer, ‘Scientist wins out of court damages for Internet
libel’ The Guardian 5 June 1995 (Canadian academic obtained settlement in action commenced in the
United Kingdom); J.S. Weber, ‘Defining Cyberlibel: A First Amendment Limit for Libel Suits
Against Individuals Arising from Computer Bulletin Board Speech’ (1995) 46 Case Western Reserve
L Rev 235, 255 (describing settled claim brought in the United States). See generally C. Gringras,
Laws of the Internet (London: Butterworths, 1997) 91.
3 This article focuses on the law of England and Wales because that legal system attracts the vast
majority of defamation actions within the United Kingdom. Leading texts discussing English
defamation law include P.F. Carter-Ruck and H.N.A. Starte, Carter-Ruck on Libel and Slander
(London: Butterworths, 5th ed 1997); C. Duncan, B. Neill and R. Rampton, Defamation (London:
Butterworths, 3rd ed 1995); P. Milmo and W.V.H. Rogers (eds), Gatley on Libel and Slander
(London: Sweet & Maxwell, 9th ed 1998).
4 The plaintiff in an English libel case is aided by several rebuttable presumptions and is required to
prove relatively little in order to establish a prima facie case, while available defences are intricate
and often difficult to establish. See generally Carter-Ruck and Starte, n 3 above, 93–160. Increasingly,
many of the substantive rules of English defamation law have been criticised for over-deterring
expression on matters of public interest. See eg E. Barendt et al,Libel Law and the Media: The
Chilling Effect (Oxford: Oxford UP, 1997) 189–197; G. Robertson and A. Nicol, Media Law
(London: Longman, 3rd ed 1992) 38–39; E. Barendt, ‘Libel and Freedom of Speech in English Law’
[1993] PL 449; T. Gibbons, ‘Defamation Reconsidered’ (1996) 16 OJLS 587; I. Loveland,
‘Reforming Libel Law: The Public Law Dimension’ (1997) 46 ICLQ 561.
5 These awards and settlements routinely approach or surpass £50,000, and far exceed the amounts
recoverable in most other jurisdictions in the world. See D.W. Vick and L. Macpherson, ‘Anglicizing
Defamation Law in the European Union’ (1996) 36 Virginia J Int’l L 933, 938–968.
6ibid 935, 963 n 182; Gringras, n 2 above, 107–125.
Internet meet this requirement, jurisdiction over an Internet defamation case nearly
always can be founded in the English courts, regardless of the origin of the
defamatory comment or the residence of the comment’s target.7
It is not only the originator of a defamatory statement posted on the Internet who
could be sued. Under English law, all persons who communicate a defamatory
statement to third parties, regardless of whether they originated the statement or
simply repeated or disseminated it, have ‘published’ the statement and are prima
facie liable to the plaintiff even in the absence of proof of fault.8This liability not
only extends to ‘primary publishers’ – authors, editors, and commercial publishing
houses, for example – who exercise direct editorial control over published
statements, but also to ‘secondary publishers’ – including printers, newsagents,
booksellers, and libraries – who do not play an active editorial role but do make the
offending statement available to a broader segment of the public. The institutions
and organisations that provide individual computer users with access to the Internet
are, effectively, secondary publishers of defamatory messages communicated over
the Internet. These Internet service providers control the computer terminals, or
‘servers’, that make dissemination of defamatory material possible.9For example,
the institutions that operate the servers on which World Wide Web sites are stored
and which allow third parties to view them play necessary roles in the
dissemination of any defamatory messages contained on those sites. Defamatory
statements made on e-mail mailing lists or distributed message databases like
newsgroups can be communicated to others only with the help of the institutions
maintaining the computers on which the statements are posted as well as those
through which the statements are transmitted to others. Internet service providers
maintain integral links in the distribution chain that makes possible the widespread
dissemination of defamatory material for which they are not directly responsible,
yet for which they are potentially liable.
This potential liability is vast. According to recent estimates, at least 60 million
people in 160 countries currently use the Internet,10 and a projected 200 million
people will use it by 1999.11 Hundreds of thousands of subscribers post and receive
messages on e-mail mailing lists dedicated to specific discussion topics; some
100,000 new messages are posted to newsgroups every day; and the World Wide
Web allows individuals or organisations to become ‘publishers’ who can reach
millions of Internet users relatively inexpensively.12 Most of those who post
defamatory messages on the Internet lack the resources to satisfy any damages
award obtained in a libel action. The comparatively deep pockets of Internet
7 See Waelde and Edwards, n 1 above, 271–272. This point is illustrated by the case of the Canadian
academic who recently obtained a settlement against a Geneva-based scientist in a defamation suit
brought in London in connection with statements that were made in a USENET discussion group. See
Dyer, n 2 above, 5. For a discussion of the dangers of forum shopping in Internet libel cases, see E.J.
McCarthy, ‘Networking in Cyberspace: Electronic Defamation and the Potential for International
Forum Shopping’ (1995) 16 U Pennsylvania J Int’l Business Law 527.
9 See Gringras, n 2 above, 92; N. Braithwaite, ‘The Internet and Bulletin Board Defamations’ (1995)
145 NLJ 1216. For illuminating discussions of how the Internet works, see J.J. Manger, The Essential
Internet Information Guide (London: McGraw-Hill, 1995); A. Terrett, ‘A Lawyer’s Introduction to
the Internet’ in C. Waelde and L. Edwards (eds), Law and the Internet: Regulating Cyberspace
(Oxford: Hart, 1997) 13–26. See also American Civil Liberties Union vReno 929 F Supp 824, 830–
838 (ED Pa 1996) aff’d, 117 S Ct 2329 (1997)
10 See European Commission, Illegal and Harmful Content on the Internet: Communication to the
European Parliament, the Council, the Economic and Social Committee and the Committee of the
Regions (16 October 1996) 1.
11 Reno vAmerican Civil Liberties Union, 117 S Ct 2329, 1997 US LEXIS 4037 (26 June 1997) *12–13.
12 See American Civil Liberties Union vReno, n 9 above, 834, 835, 837.
January 1999] Universities, Defamation and the Internet
The Modern Law Review Limited 1999 59
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