e-Defamation

The blogging phenomenon has hit Tanzania and individuals have started to express themselves, communicate and share information through blogging. Various fashion bloggers, news bloggers (such as the famous michuzi blogsite) etc. With such activities one must consider the law of defamation.

Here are some bullet points---theoretical aspects of e-defamation that have caught my attention!

What is defamation?
+it is the communication of a statement expressly or implied to be factual, that may give an individual, business, product, group, government or nation a negative image.
+the web has made it easier to disseminate defamatory statements to a worldwide audience with impunity.
For some time, courts have struggled with remedies for Web defamation. The problem has been magnified by the difficulty in identifying the perpetrator, and the degree to which Internet Service Providers (ISP's) should be held accountable for facilitating the defamatory activity.
+ see the New York case of Lunney v. Prodigy for internet defamation

++++Due to the novel methods in which defamation is perpetrated on the Internet, courts have been required to "stretch" the law in both substance and procedure. Although ISP's are theoretically immune from liability for defamation perpetrated by their members, they have been unable to escape being sued as a party to defamation lawsuits altogether. On the other hand, being forced by a court order to reveal confidential customer information may actually help an ISP by immunizing it from liability to its own members.

Do blogs have the same constitutional protection as mainstream media?
* yes, the US Supreme Court has held that "in the context of defamation law, the rights of the institutional media are no greater or no less than those enjoyed by other individuals or organisations engaged in the same activities".

What if I republish another person's statement? (i.e. someone comments on your posts)
& Generally, anyone who repeats someone else's statements is just as responsible for their defamatory content as the original speaker—if they knew, or had reason to know, of the defamation. In the United States Section 230 of the Communications Decency Act (http://www.eff.org/issues/bloggers/legal/liability/230), provides a strong protection against liability for Internet "intermediaries" who provide or republish speech by others.

How courts look at the context of a statement?

Blogs- start with the general tenor, setting, format of the blog, the context of the links through which the user accessed the particular entry.
- look at the specific context and content of the blog entry, analyzing the extent of figurative or hyperbolic language used and the reasonable expectations of the blog's audience.

The statutory limitation on libel cases? - 3 years as provided by the Law of Limitation

Stark differences between the laws of different countries have focused attention on the issue of when the court of a given country will assert jurisdiction over Worldwide Web content.

In the 1997 US Court of Appeal case of Zeran v. America OnLine, Inc., the plaintiff sued the defendant internet service provider (“ISP”) for unreasonable delay in removing defamatory messages posted by an unidentified third party, refusing to post retractions, and failing to screen for similar postings thereafter. The Court held that the Communications Decency Act barred such claims by immunizing commercial interactive computer service providers from liability for defamatory information posted by third parties.

In contrast to the American approach, an ISP in the 1999 English High Court case of Godfrey v. Demon Internet Ltd. was found liable in defamation after failing to remove defamatory remarks in a posting to a Newsgroup forum following a request to do so by the plaintiff who was alleged to have been the author of the posting. The comments in the posting were obscene and defamatory of the plaintiff and he denied being the author. He therefore requested their removal but the defendant company failed to do so. The High Court concluded that, since the defendant company knew about the defamatory content of the posting, they could not avail themselves of the protection of s. 1(1) of the English Defamation Act 1996.

other crucial factors to be considered....
1.stark differences between the laws of different countries ---JURISDICTION- must be determined --note: websites and e-mails are inter-jurisdictional---thus borderless --an agreement on jurisdiction/issues as to which substantive law would apply... the issue of jurisdiction is very complex this is seen by the different approaches taken by the US, UK and EU countries ...having not come to consensus as which approach should be adopted uniformly....to avoid conflict!--

Electronic Commerce Law

The future economy, an “E-economy”, transforms how international trade participants conduct business. Due to this, ‘media-neutral rules that govern national and international transactions will become necessary.’

Electronic Commerce Law is not a traditional source of law but rather a new hybrid-law encompassing various pieces of old and new telecommunications legislation as well as the Common law.

The formation of electronic contracts in this new age of technology and era of globalization, initially caused a world-wide legal uncertainty as to how and whether electronic contracts concluded by electronic means can be recognized as valid and enforceable agreements.

In 1996, the UNCITRAL Model Law on E-Commerce was drafted in order to assist countries in drafting and enacting laws to enable electronic contracting. The UNCITRAL Model Law on E-Commerce extends the scope of the legal definitions of terms like "writing‟, signature‟ and originals‟ to cover electronic records. This was followed by the UNCITRAL Model Law on Electronic Signatures (which was created to deal with various inconsistencies in the creation and acceptance of electronic signatures). In 2005 the same body drafted The United Nation Convention on the use of Electronic Communications in International Contracts which sought to harmonize the provisions of the two model laws to form an international law instrument that could give guidance on electronic cross border contracts.