Defamation and the Internet
Definition
Defamation is the intentional infringement of another person's right to his good name. In other
words, it is the wrongful, intentional publication of words or behaviour concerning another person which
has the effect of injuring his status, good name or reputation.
Certain elements must be present:
1. the act (publication of words or behaviour)
2. an injury to personality (the defamatory effect of the words or behaviour)
3. wrongfulness (the infringement of the personality right to a good name)
a. Defences: privilege, truth and public interest, fair comment
4. intention (animus iniuriandi)
a. Defences excluding fault: mistake, jest
5. a causal connection between the act and the injury to personality.
Defamation on the Internet in South Africa
National Media v Bogoshi:
strict liability of the media: rejected as incompatible with freedom of expression; replaced by
liability based on negligence.
court will have to evaluate the defamatory allegation in view of the objective reasonableness of
the publication
Three key questions i.t.o. law of defamation on the Internet is concerned:
1. When does publication occur?
2. Who is liable for the defamation?
3. Where does publication occur?
When does publication occur?
Publication: the objectionable statement or behaviour regarding the defamed person is made known
to at least one person other than the defamed individual.
As soon as the outsider becomes aware of the defamatory nature of the allegation or behaviour, the
publication requirement is fulfilled.
Who is liable for the defamation?
Once publication has taken place, plaintiff has to show that defendant was responsible for
publication.
Defendant will be accountable for defamation if he was aware or could reasonably have expected
that an outsider would gain knowledge of the alleged defamation.
Not only the person from whom the defamatory allegation originated, but every person who repeats,
confirms or draws attention to it would in principle be responsible for its publication.
Thus: not only the author of a defamatory message or a defamatory allegation in, for example an
online magazine, will be held liable, but also the editor, printer, publisher and owner of that magazine.
There is a difference between an individual and the media in the degree of liability. Thus distinction:
1. mass media: online newspapers and magazines and other online news services
2. not mass media: senders of email messages and participants in real-time chat groups
3. bulletin boards and newsgroups:
a. no editorial control is exercised: postings probably not regarded as “mass media”.
Authors of defamatory email messages liable are liable, but possibly also employers.
Employers can be held vicariously liable for delicts committed by employees in course and scope of
employment.
Whether employer will be held liable, will depend on surrounding circumstances. Important factor:
whether defamatory email was sufficiently connected to the employer's business or whether the
employee was on a so-called “ frolic of his own”
Liability of ISPs for defamatory content
Liability of ISPs: to a large extent dependent on their function and role in the publication process and
a distinction, based on their respective functions is generally made between:
authors, editors and publishers of the material, where some form of editorial control is usually
exercised
distributors linked to the distribution process such as hosts, and network and service providers
common carriers who serve merely as conduits in the transmission and routing process
(analogous to a post office or telephone company), for example, access providers and possibly
hosts, depending on their role in the publication process
,Position in the USA
History:
Cubby Inc v Compuserve: Cubby: complained that it had been defamed in a newsletter on a forum
and instituted a claim for defamation against CompuServe.
Court held: CompuServe qualified as a distributor of information and could therefore only be liable if
they had knowledge or ought to have had knowledge of the offending material.
Lack of evidence that CompuServe had any knowledge of the defamatory statements and the fact
that it was not feasible for the ISP to check every publication for potentially defamatory statements, the
court held that the defendant was not liable.
Stratton Oakmont Inc et al v Prodigy Services Company: Court held: Prodigy, should be held liable as
a publisher, rather than a distributor, for information published on the defendant’s bulletin boards.
Court argued that Prodigy was liable as a publisher of the defamatory content due to the following:
1. Prodigy held itself out to the public and its members as controlling the content of its bulletin
board
2. Prodigy exerted editorial control over its content through the use of an automatic screening
software program and board leaders to enforce its content guidelines
Case was taken on appeal and overturned.
Current:
Lunney v Prodigy Services: ISPs could claim to be common carriers.
Liability of ISP was not decided by relying on the distinction between a publisher and a distributor
and the indemnity provided by section 230 of the CDA, but the court granted the ISP the common-law
privilege usually given to telephone and postal companies, namely, that of being a mere conduit or
common carrier.
Court decided that Prodigy was not a publisher of messages but, rather, a passive conduit for the
information, similar to a telephone company and, therefore, not liable.
In USA a distinction is drawn between primary and secondary publishers: in the case of a secondary
publisher (mere distributor as in the case of an ISP), onus is on the claimant to prove fault by the
secondary publisher.
The Communications Decency Act of 1996 section 230(c) of the Act: expressly provides that ISPs are
not liable as the publishers “of any information provided by another information content provider”.
Zeran v America Online: started trend of establishing broad immunity for ISPs from defamation
liability under Section 230(c) of the CDA.
Position in the UK
I.t.o. liability of ISPs in the UK, distinction is generally made between
1. publishers of defamatory material on, for example, bulletin boards
2. innocent disseminators of such material.
1. If considered to be publishers, i.t.o. principles of strict liability of publishers for defamation, may
be found liable for defamation without fault.
a. Will have to rely on the same defences available to an author, i.e. liability would depend on
whether alleged defamatory allegation was truthful, constituted fair comment, or was
privileged.
2. If they can argue successfully that they do not take an active part in the actual process of
communication, but merely provide the means to make it possible, they may be able to rely on
one of two defences, namely
a. The common-law defence of innocent dissemination, or
b. The statutory defence of innocent dissemination in terms of section 1 of the Defamation
Act of 1996.
Common-law defence of innocent dissemination
Three elements of defence: Operator:
1. did not know that the network/bulletin board contained the libel in question
2. did not know that material on the network or bulletin board was of a nature likely to contain
libellous material
3. did not lack knowledge of (1) and (2) above as the result of any negligence on the operator's part
Not a very useful defence:
1. ISP that becomes aware of the fact that, for example, a bulletin board is likely to contain
defamatory statements will not be able to rely on this defence
, 2. ISP or operator that deliberately closes its eyes to the nature of the material on its bulletin boards
or network will probably not be able to escape liability
3. Decided in Laurence Godfrey v Demon Internet Limited that ISP that carries defamatory material
on a newsgroup or website is a publisher for the purposes of defamation law and is prima facie
liable.
The statutory defence of innocent dissemination
Section 1 of the Defamation Act 1996:
1. In defamation proceedings a person has a defence if he shows that
a. he was not the author, editor or publisher of the statement complained of,
b. he took reasonable care in relation to its publication, and
c. he did not know, and had no reason to believe, that what he did caused or contributed to
the publication of a defamatory statement.
2. A person shall not be considered the author, editor or publisher of a statement if he is only
involved
a. in processing, making copies of, distributing or selling any electronic medium in or on
which the statement is recorded, or in operating or providing any equipment, system or
service by means of which the statement is retrieved, copied, distributed or made available
in electronic form;
b. 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.
3. Employees or agents of an author, editor or publisher are in the same position as their employer
or principal to the extent that they are responsible for the content of the statement or the
decision to publish it.
ISPs will thus escape liability if they can prove that:
1. they were only involved in operating or providing any equipment, system or service by means of
which a statement may be retrieved, copied, distributed or made available in electronic form, or
2. they were merely operators of, or providers of access to, communication systems by means of
which statements (made by persons over whom they have no effective control) are transmitted,
or made available
Problem of relying on this defence: in order for it to succeed, ISPs also have to convince the court
that
1. they took reasonable care in relation to publication of the statement complained of
2. they did not know, and had no reason to believe, that what they did caused or contributed to the
publication of a defamatory statement
Electronic Communications and Transactions Act of 2002
Chapter 11 of this Act provides for the limitation of liability of ISPs for transmitting, routing,
temporarily storing, caching and hosting of unlawful material & providing links to unlawful material in
certain prescribed circumstances.
Definitions
Service provider: any person providing information system services.
Information system services: the provision of connections, the operation of facilities for information
systems, the provision of access to information systems, the transmission or routing of data messages
between or among points specified by a user and the processing and storage of data, at the individual
request of the recipient of the service.
Sections
Section 72: limitation of liability will only apply to an ISP if ISP is a member of the industry
representative body and has adopted and implemented the official code of conduct of such a
representative body.
Section 71: Minister will only recognise such an industry representative body if the Minister is
satisfied that:
1. members are subject to a code of conduct;
2. membership is subject to adequate criteria;
3. the code of conduct requires continued adherence to adequate standards of conduct; and
4. the representative body is capable of monitoring and enforcing its code of conduct adequately.
Section 73: ISP acting as a mere conduit will be exempt from liability if certain requirements are
fulfilled.
ISPs who store, transmit, route, or provide access to data through such activity will be exempt from
liability if ISP:
Definition
Defamation is the intentional infringement of another person's right to his good name. In other
words, it is the wrongful, intentional publication of words or behaviour concerning another person which
has the effect of injuring his status, good name or reputation.
Certain elements must be present:
1. the act (publication of words or behaviour)
2. an injury to personality (the defamatory effect of the words or behaviour)
3. wrongfulness (the infringement of the personality right to a good name)
a. Defences: privilege, truth and public interest, fair comment
4. intention (animus iniuriandi)
a. Defences excluding fault: mistake, jest
5. a causal connection between the act and the injury to personality.
Defamation on the Internet in South Africa
National Media v Bogoshi:
strict liability of the media: rejected as incompatible with freedom of expression; replaced by
liability based on negligence.
court will have to evaluate the defamatory allegation in view of the objective reasonableness of
the publication
Three key questions i.t.o. law of defamation on the Internet is concerned:
1. When does publication occur?
2. Who is liable for the defamation?
3. Where does publication occur?
When does publication occur?
Publication: the objectionable statement or behaviour regarding the defamed person is made known
to at least one person other than the defamed individual.
As soon as the outsider becomes aware of the defamatory nature of the allegation or behaviour, the
publication requirement is fulfilled.
Who is liable for the defamation?
Once publication has taken place, plaintiff has to show that defendant was responsible for
publication.
Defendant will be accountable for defamation if he was aware or could reasonably have expected
that an outsider would gain knowledge of the alleged defamation.
Not only the person from whom the defamatory allegation originated, but every person who repeats,
confirms or draws attention to it would in principle be responsible for its publication.
Thus: not only the author of a defamatory message or a defamatory allegation in, for example an
online magazine, will be held liable, but also the editor, printer, publisher and owner of that magazine.
There is a difference between an individual and the media in the degree of liability. Thus distinction:
1. mass media: online newspapers and magazines and other online news services
2. not mass media: senders of email messages and participants in real-time chat groups
3. bulletin boards and newsgroups:
a. no editorial control is exercised: postings probably not regarded as “mass media”.
Authors of defamatory email messages liable are liable, but possibly also employers.
Employers can be held vicariously liable for delicts committed by employees in course and scope of
employment.
Whether employer will be held liable, will depend on surrounding circumstances. Important factor:
whether defamatory email was sufficiently connected to the employer's business or whether the
employee was on a so-called “ frolic of his own”
Liability of ISPs for defamatory content
Liability of ISPs: to a large extent dependent on their function and role in the publication process and
a distinction, based on their respective functions is generally made between:
authors, editors and publishers of the material, where some form of editorial control is usually
exercised
distributors linked to the distribution process such as hosts, and network and service providers
common carriers who serve merely as conduits in the transmission and routing process
(analogous to a post office or telephone company), for example, access providers and possibly
hosts, depending on their role in the publication process
,Position in the USA
History:
Cubby Inc v Compuserve: Cubby: complained that it had been defamed in a newsletter on a forum
and instituted a claim for defamation against CompuServe.
Court held: CompuServe qualified as a distributor of information and could therefore only be liable if
they had knowledge or ought to have had knowledge of the offending material.
Lack of evidence that CompuServe had any knowledge of the defamatory statements and the fact
that it was not feasible for the ISP to check every publication for potentially defamatory statements, the
court held that the defendant was not liable.
Stratton Oakmont Inc et al v Prodigy Services Company: Court held: Prodigy, should be held liable as
a publisher, rather than a distributor, for information published on the defendant’s bulletin boards.
Court argued that Prodigy was liable as a publisher of the defamatory content due to the following:
1. Prodigy held itself out to the public and its members as controlling the content of its bulletin
board
2. Prodigy exerted editorial control over its content through the use of an automatic screening
software program and board leaders to enforce its content guidelines
Case was taken on appeal and overturned.
Current:
Lunney v Prodigy Services: ISPs could claim to be common carriers.
Liability of ISP was not decided by relying on the distinction between a publisher and a distributor
and the indemnity provided by section 230 of the CDA, but the court granted the ISP the common-law
privilege usually given to telephone and postal companies, namely, that of being a mere conduit or
common carrier.
Court decided that Prodigy was not a publisher of messages but, rather, a passive conduit for the
information, similar to a telephone company and, therefore, not liable.
In USA a distinction is drawn between primary and secondary publishers: in the case of a secondary
publisher (mere distributor as in the case of an ISP), onus is on the claimant to prove fault by the
secondary publisher.
The Communications Decency Act of 1996 section 230(c) of the Act: expressly provides that ISPs are
not liable as the publishers “of any information provided by another information content provider”.
Zeran v America Online: started trend of establishing broad immunity for ISPs from defamation
liability under Section 230(c) of the CDA.
Position in the UK
I.t.o. liability of ISPs in the UK, distinction is generally made between
1. publishers of defamatory material on, for example, bulletin boards
2. innocent disseminators of such material.
1. If considered to be publishers, i.t.o. principles of strict liability of publishers for defamation, may
be found liable for defamation without fault.
a. Will have to rely on the same defences available to an author, i.e. liability would depend on
whether alleged defamatory allegation was truthful, constituted fair comment, or was
privileged.
2. If they can argue successfully that they do not take an active part in the actual process of
communication, but merely provide the means to make it possible, they may be able to rely on
one of two defences, namely
a. The common-law defence of innocent dissemination, or
b. The statutory defence of innocent dissemination in terms of section 1 of the Defamation
Act of 1996.
Common-law defence of innocent dissemination
Three elements of defence: Operator:
1. did not know that the network/bulletin board contained the libel in question
2. did not know that material on the network or bulletin board was of a nature likely to contain
libellous material
3. did not lack knowledge of (1) and (2) above as the result of any negligence on the operator's part
Not a very useful defence:
1. ISP that becomes aware of the fact that, for example, a bulletin board is likely to contain
defamatory statements will not be able to rely on this defence
, 2. ISP or operator that deliberately closes its eyes to the nature of the material on its bulletin boards
or network will probably not be able to escape liability
3. Decided in Laurence Godfrey v Demon Internet Limited that ISP that carries defamatory material
on a newsgroup or website is a publisher for the purposes of defamation law and is prima facie
liable.
The statutory defence of innocent dissemination
Section 1 of the Defamation Act 1996:
1. In defamation proceedings a person has a defence if he shows that
a. he was not the author, editor or publisher of the statement complained of,
b. he took reasonable care in relation to its publication, and
c. he did not know, and had no reason to believe, that what he did caused or contributed to
the publication of a defamatory statement.
2. A person shall not be considered the author, editor or publisher of a statement if he is only
involved
a. in processing, making copies of, distributing or selling any electronic medium in or on
which the statement is recorded, or in operating or providing any equipment, system or
service by means of which the statement is retrieved, copied, distributed or made available
in electronic form;
b. 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.
3. Employees or agents of an author, editor or publisher are in the same position as their employer
or principal to the extent that they are responsible for the content of the statement or the
decision to publish it.
ISPs will thus escape liability if they can prove that:
1. they were only involved in operating or providing any equipment, system or service by means of
which a statement may be retrieved, copied, distributed or made available in electronic form, or
2. they were merely operators of, or providers of access to, communication systems by means of
which statements (made by persons over whom they have no effective control) are transmitted,
or made available
Problem of relying on this defence: in order for it to succeed, ISPs also have to convince the court
that
1. they took reasonable care in relation to publication of the statement complained of
2. they did not know, and had no reason to believe, that what they did caused or contributed to the
publication of a defamatory statement
Electronic Communications and Transactions Act of 2002
Chapter 11 of this Act provides for the limitation of liability of ISPs for transmitting, routing,
temporarily storing, caching and hosting of unlawful material & providing links to unlawful material in
certain prescribed circumstances.
Definitions
Service provider: any person providing information system services.
Information system services: the provision of connections, the operation of facilities for information
systems, the provision of access to information systems, the transmission or routing of data messages
between or among points specified by a user and the processing and storage of data, at the individual
request of the recipient of the service.
Sections
Section 72: limitation of liability will only apply to an ISP if ISP is a member of the industry
representative body and has adopted and implemented the official code of conduct of such a
representative body.
Section 71: Minister will only recognise such an industry representative body if the Minister is
satisfied that:
1. members are subject to a code of conduct;
2. membership is subject to adequate criteria;
3. the code of conduct requires continued adherence to adequate standards of conduct; and
4. the representative body is capable of monitoring and enforcing its code of conduct adequately.
Section 73: ISP acting as a mere conduit will be exempt from liability if certain requirements are
fulfilled.
ISPs who store, transmit, route, or provide access to data through such activity will be exempt from
liability if ISP:
