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Subject: Re: UKNM: Legal Responsibility of Content
From: Ray Taylor
Date: Tue, 22 Sep 1998 13:56:40 +0100

From: Craig Pickup <c [dot] pickupatdigitrade [dot] co [dot] uk>

>I may be mistaken but my understanding is that if someone takes any role in
>policing content before it appears in a medium, then they become liable for all
>the content appearing via that medium.

As far as I am aware, the existence of moderation makes no difference. If a
defamatory statement is published in a magazine (a liable) then the defamed
person has an equal claim against publisher, editor, writer, printer,
retailer, distributor.

Clearly the retailer, distributor and printer of a magazine normally have no
say in the content. But the rule is well established and was used to hang,
draw and quarter many a "seditious" printer in previous centuries.

There are no special rules for internet content and courts will infer what
they like from comparisons with existing media.

This list is public from the point of view of the law of defamation. Hence
if someone were to post a defamatory remark to this list such as "Ray Taylor
is unprofessional" then I would have a valid claim against the author, the
moderator of this list, any ISP involved in the supply chain and possibly
even the telecom provider.

Whether I chose to pursue it, and my chances of gaining anything, are
another matter dependent on evidence of loss caused by the remark. For
instance, if any customers of mine saw the comment (several of my clients
are subscribers to this list) and cancelled business as a result, and I
could prove this to be the case, I would have a very good claim for
substantial damages.

But of course we all know there is a high degree of banter and openness on
lists such as this and remarks are often taken with a pinch of salt so (a) I
would be shocked to lose a client this way (more likely to lose one by the
things I say on the list myself) and (b) proving it would be difficult.
Given the very high cost of defamation law suits I would have to be very
sure of my ground to proceed.

On the question of public/private it makes no difference. If you sent an
email to a private list of two people slandering someone other than those
two people the person you have defamed would have a case against you.

As far as I am aware there have been no court cases testing these views, and
it is possible that a court might decide that a defamatory remark made via
email is slanderous ("verbally" communicated) rather than libellous
("published") which would shift the onus of proof among other things.

The concept of electronic communication is not new to the courts and the
case law on fax communications is well established. You can make a contract
by fax, the effect being instantaneous, and a faxed newsletter would count
as a published document from the point of view of libel law.

In my view the best way for list owners to protect themselves against
malicious court actions is to require members of their lists to behave in a
courteous, responsible, and reasonable way and not to use lists such as this
to get back at people for any reason, justified or otherwise.

Hope this helps

Ray Taylor

  Re: UKNM: Legal Responsibility of Conten, Nabil Shabka

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