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!--
7 comments:
Interesting!! for a country that just passed money laundering regulations something they should have done in the 70's and 80's..A country whose ministries and most key government bodies dont even have websites!!, whose ministers use yahoo and hotmail!! for government matters!! do you think we can honestly and realistically focus on regulating the cyberspace??
Most definitely, e-government is active in Tanzania at the moment websites like BUNGE, Tanzania Gateway and a number of ministries already have developed extremely informative websites such as BOT and Tanzania Communications Regulatory Authory. Realistically speaking, the cyber-laws are being delayed---take for example Banks are already using the Internet to provide their services such as account updates and so forth, media such as IPPMedia already has a well developed website.....I mean there is a lot of activities taking place and NO REGULATION what so ever.
Is this what you call Tanzanian e-government in action?
http://www.ndctz.com/
thats a typical example of government institution website.
If anything government institutions are just informative and have no organised way of communicating and assisting the public needs with regard to the particular institution through the internet. As a lawyer in tanzania i think you are familiar with BRELA (http://www.brela-tz.org/index.html )They institution is key but u cant even do a simple name search online. We still have to go physically to go through those search books that go back to the 80's. I will agree with you that banks especially a few private ones are active online and thats very positive but to what purpose if the liability issues are shaky. In my view we cant aim for e-regulation if we dont understand its purpose and on the ground due to cultural, economical and political reasons the goal to be achieved is not a priority. Like i mentioned before there is an issue of realism here if we cant enforce laws that are already there how can we tackle issues that the EU and America are still having a hard time regulating??. To this day the Europen Union has not set clear cut directives on how the internet should be regulated, they have drafts which always get shut down by the member states due to different circumstances and technological stages an individual country is at. Keeping in mind e-commerce directives are active but as we both know e-business is not active in tanzania just yet.
Here are some links you might be interested in
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:178:0001:0016:EN:PDF
http://ec.europa.eu/internal_market/payments/docs/emoney/com_2008_627_en.pdf
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2000:275:0039:0043:EN:PDF
Very much so....I agree totally on the realism factor however, my point of view is that we shouldnt wait until its too late to regulate such as the case of the Anti-Money Laundering Act, 2007.....we should tackle these issues NOW before the activities increase...Yes the websites might not be informative and not up to international standards BUT the key issue is that they exist...also bearing in mind that Kenya, our neighbour and of course one of the members of the community have already passed or are in the final stages of passing cyber-laws ans thus have gained a competitive advantage over e-commerce....by this i mean businesses such as ebay and other foreign online companies will now be able to conduct business with kenyans over the net because of the fact there is regulation whilst with Tanzania....they will fear lack of regulation thus instability etc. My thinking is that we do not adopt the rules that the EU and the US have adopted---although taking examples from them we need to develop laws that will correspond with the situation in our country...considering the level of technology here, the infrastructure, the level of usage and so on and so forth is vital....we need not adopt a mirror law to that of the UK but we may ....ofcourse use the Kenyan model....such a model will be more than sufficient...we are after all FOLLOWERS and never LEADERS.... i mean why the hell werent we the first ones to pass cyberlaws...it just had to be Kenyans...EISH!!
NOTE: Laws are never clear cut..there are always loopholes..they develop over time...thats why we have "amendments"...to fill in the gaps.
As you stated above...the EU still uses drafts..or maybe we can call them under-developed laws still in need of clarification....the US as well....both have different approached with regards to regulating e-commerce especially if you look at the regulation to the issue of "jurisdiction"....singapore...India...South Africa all have used the model laws...as adapted by the "US AND EU" to govern e-com...Y NOT TANZANIA...We are not barbarians,,,it is a priority...
All we need now is the minister of tech to go through this blog then propose something bungeni!! :-)
@ Kamanga quite ironic! This is a poorly put together attempt to censure FoI (freedom of information) rights.
African govts. are running scared with the thought of civil servant whistleblowers releasing "confidential" documents into the public domain. There has been a raft of such legislation across the region aimed at clamping down on the media and free speech rights. But technology cannot be stopped as we witnessed in Burma and China over the last few months.
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