Defamation and anonymous blogging

Has anyone else ever put comments up in online forums, or in response to newspaper stories or blog posts? If you’re reading this post, I suspect that you might have been tempted to do so. You know the drill then. You are required to enter your name in a box headed “Name”, and then you are required to enter an e-mail address. Usually, there is a disclaimer beside the box, stating “will not be published” or “for verification purposes only” or something of the sort. Perhaps you have used a psuedonym, feeling safe in the knowledge that no one will know who you are. Given a recent case in the UK, perhaps you need to mind what you say.

In Sheffield Wednesday Football Club Inc v Hargreaves [2007] EWHC 2375 (QB), a football club, Sheffield Wednesday, and members of its board of directors sued the owner and operator of a fan website, www.owlstalk.co.uk, for defamation. The plaintiffs sought to require the website to disclose the e-mail addresses of contributors to a fan chat forum whose contributions were said to be defamatory.

At the outset, taking off my lawyer’s wig and adopting a practical point of view, it seems to me that if one’s fans are already offside, then suing those who are critical of your management isn’t going to increase your popularity with the fan base… Just a thought.

In any case, the comments were made by some 11 anonymous contributors, all of whom were fans of Sheffield Wednesday. All of the comments were scathing about the way in which the plaintiff chairmen/directors and others had managed the club.

Richard Parkes QC said at the outset at [9]:

…in a case where the proposed order will result in the identification of website users who expected their identities to be kept hidden, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court.

Ultimately, his Honour decided that the defendant should be required to divulge the details of only those contributors whose comments were of the most serious nature (at [17] – [18]):

It seems to me that some of the postings…border on the trivial, and I do not think that it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory or little more than abusive or likely to be understood as jokes. That, it seems to me, would be disproportionate and unjustifiably intrusive. …

The postings which I regard as more serious are those which may reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour on the part of the Claimants. In the case of those postings, the Claimants’ entitlement to take action to protect their right to reputation outweighs, in my judgment, the right of the authors to maintain their anonymity and their right to express themselves freely, and I take into account in this context the restrictions on the use of defamatory language which the rules of the Defendant’s bulletin board impose, restrictions which in the case of these postings appear to have been breached. I take into account also that the Defendant does not appear to have had any policy of confidentiality for the benefit of his users.

Having read the exerpts of the comments in the judgment itself, the comments in fact seemed pretty tame compared to some things I’ve read in the blogosphere. I could imagine the comments being made by disgruntled fans in the pub after the match, and indeed, I think this is very much the way in which the fans themselves saw it; except that they had put the comments in writing on a public forum, which gives the comments a very different status.

People often treat e-mail and online forum comments as if they are “verbal” rather than “written”. But what could just be a disgruntled whinge may come across as something altogether more serious when put in writing. I fell into this trap once myself with e-mail, and vowed never again to communicate problems via e-mail, as they lack “tone”, and may come over so much more harshly as a result. 

Furthermore, it’s easy to be nasty if you are just typing a comment and don’t have to look someone in the eye when you make it. I once dealt with a client who was pleasant if you saw him in person, but typed vicious and unreasonable e-mails asking you to crush the other side and give no mercy, even if the dispute was partly of his own making. My tactic was always to ring him back about the e-mail and get him to soften the instructions thereby. I’ve never found a “take-no-prisoners” approach to be effective. Softly, softly, catchee monkey…and go in for the killer punch if necessary at the end.

It’s even easier to be vicious if you are anonymous, because if you want to make up a sufficiently obscure psuedonym, even your own mother might not realise you made the comment, so you don’t have to take responsibility for it. Although I write under a psuedonym on this very blog, I always write as though I was writing under my own name. I’m sure it’s easy enough to work out my real identity if anyone really wanted to do so.

The lesson for us all is to be very careful with what we say. Would we be embarrassed to own up to it? Is what we are saying truthful? It seems that it was important in this case that (a) there was no confidentiality policy in place to protect the details of contributors and (b) there was a policy that abusive/defamatory comments should not be made. At the very least, those who run internet forums and the like will have to revise their confidentiality policies if they wish to protect the details of contributors.

Any comments, of course, will be treated STRICTLY CONFIDENTIALLY (just for the record, in case any judges out there are reading this blog).

Facebook Freddi

I’ve recently become addicted to Facebook. It’s great. I’ve managed to get in touch with friends with whom I hadn’t spoken for almost 20 years, and to stay in better contact with others. Another friend of mine is less keen. “I’m really worried about the privacy issues”, she told me. Initially I wasn’t so concerned, but as I got more friends, I have reduced the personal information on my page.

Would I agree to be friends with Facebook Freddi, though? I’d like to think I’d be sensible enough to refuse his offer. Freddi Staur, a green frog, is an invention of internet security firm Sophos. Sophos sent out friend invitations on behalf of Freddi to 200 hundred people. 87 people accepted Freddi’s invite, although they didn’t know Freddi. Seems quite amazing. I guess it’s a reminder for people like me to be careful, not to be friends with just anyone, and not to include too many personal details on the site.

AUSTLII needs funds

Any Australian lawyer worth her salt is aware of AUSTLII. (Unless you have been living under a rock for the last 20 years?)

As part of my PhD, I am investigating law from all over the world: including Australia, England, Canada, the USA, Ireland, Israel, France, Germany… Australia is streets ahead of any of those other countries in providing free access to legal materials. It is great because it means I can research from home.

Austlii also allows me to research my legal posts on this blog thoroughly, and to familiarise myself with the relevant law before I write.

I think it’s an important democratic right to give people free and easy access to statutes which are purported enacted for their benefit.

But unfortunately, Austlii is running out of funding. The donors who are glaringly absent are many of the firms who use this resource, as well as many of the Courts whose decisions are published by the site (although there are some who give generously). Have a look at this post from the Ethics Forum – Are most lawyers bagel thieves?

I haven’t got much money (casual lecturers are paid terribly) but I use Austlii all the time. I am going to make a donation (as much as I can afford) to this worthy cause. I ask other lawyers and non-lawyers who use this resource to consider doing the same.

The long arm of US law

I’ve written a post earlier on the case of Hew Raymond Griffiths, an Australian resident who has been extradited to the US on charges of software piracy and conspiracy. I noticed today that this issue has come up in the news again.

Griffiths was born in the UK and remains a British citizen, but has lived in Australia since he was 7 years old.

The US DOJ alleged that Griffiths was a ringleader of Drink or Die (aka “DOD”), an online “warez” group which specialised in cracking software products and distributing the free cracked versions on the Internet. In 2003, the US government demanded that Australia extradite Griffiths to the US to face charges under the US Copyright Act and the Australian government agreed to do so. While he fought the extradition process, Griffiths was denied bail and languished in an Australian gaol for three years. He was finally extradited in February this year.

On 20 April 2007, Griffiths pleaded guilty before the Virginian District Court to one count of conspiracy to commit criminal copyright infringement and one count of criminal copyright infringement. If convicted on both counts, Griffiths could receive a maximum
sentence of 10 years in prison and a $500,000 fine. He is due to be sentenced on 22 June 2007.

Did the Australian government have to surrender Griffiths up to the US government pursuant to the Australia-United States Free Trade Agreement (“AUSFTA”) ? Legally, I don’t think it did – but presumably it did so for political, economic and diplomatic reasons.

AUSFTA provides that we must accord “national treatment” to violation of American intellectual property rights – that is, we must treat violations of US intellectual property rights in the same manner as we would treat our own (Articles 17.1.6, 17.1.7 and 17.1.8 of AUSFTA). In addition, Australia had to enact detailed amendments to its intellectual property laws to bring them up to the standard required by the US.

I’ve had a quick read of Chapter 17 of AUSFTA, and I don’t think there’s anything in it which says we have to accept an extraterritorial aspect to US law. The closest AUSFTA comes is in Article 17.11.25, which reads:

“Each shall provide the other, on mutually agreed terms, with technical advice on the enforcement of border measures concerning intellectual property rights, and the Parties shall promote bilateral and regional cooperation on such matters.” [emphasis added]

However, I don’t think surrendering a resident of Australia up to a US Court is part of the deal of “bilateral cooperation”. The US should leave Griffiths to be dealt with by Australian processes in Australian Courts, as this is his country of residence, and it is more appropriate that he be tried and, if appropriate, imprisoned here. Griffiths seems to have been singled out; all other DOD members have been prosecuted in their own countries of residence.

In saying this, I am not defending Griffiths’ conduct. The offences to which Griffiths has pleaded guilty are criminal. The US DOJ’s press release says DOD’s illegal software cracking activities cost US$50 million. It is theft to steal someone else’s creation and distribute it freely.

That being said, perhaps the US sought extradition because there could be some difficulty in prosecuting Griffiths as a result of the way in which the previous criminal provisions of the Copyright Act 1968 (Cth) operated. (This is the Act which would have applied at the time of Griffiths’ conduct.) Although there were provisions providing for criminal offences relating to copyright infringement, the wording tied the commission of the offence to whether the infringer did so for personal advantage or profit far more than the present Act does.

However, I would argue that s 132(2)(b) of the previous Copyright Act 1968 (Cth) would still cover Griffiths’ conduct:

A person shall not, at a time when copyright subsists in a work, distribute:

(a) for the purpose of trade or with the intention of obtaining a commercial advantage or profit; or

(b) for any other purpose to an extent that affects prejudicially the owner of the copyright;

an article that the person knows, or ought reasonably to know, to be an infringing copy of the work. [emphasis added]

Sub-section (b) covers Griffiths’ conduct. In fact, in his appeal against extradition to the NSW Court of Appeal, it was noted that the relevant provisions of Australian law which Griffiths would have been alleged to have breached were s 132(2)(b) of the <i>Copyright Act</i> and 11.2 of the Criminal Code (dealing with conspiracy).
In 2006, amendments to the Copyright Act were passed which clearly make conduct such as Griffiths’ illegal (see especially, s 132AC of the Copyright Act (Cth)). However, these amendments only came into force on 1 January 2007, and do not operate retrospectively.

Nevertheless, the question is whether this extraterritorial approach by the US government is inordinately heavy-handed and punitive. Should we willingly allow a foreign government to treat one of our residents in this way when we arguably have our own mechanisms for dealing with Griffiths’ conduct? Griffiths has already spent three years in gaol. He could be prosecuted under s 132(2)(b) of the Copyright Act as it formerly stood.

It is worth contrasting the treatment of Griffiths with the treatment of David Hicks. I did not agree with the incarceration of Hicks at Guantanamo Bay. However, to my mind, the allegations against Hicks did raise serious security issues, as he allegedly trained with and offered to assist terrorist organisations who have expressed a desire to kill innocent Australian and US citizens (among others). Yet, for reasons of political expedience, he is serving the rest of his sentence in Australia, and will only have 9 more months to serve. This guy could end up serving more time than Hicks, and in a foreign country. Doesn’t seem fair, does it? Let’s watch this space to see what happens.

Update

For more IP madness, see this case here, involving a Russian school teacher who was prosecuted and fined by Russian authorities for using pirated Microsoft software.

Update 2

NB: Further detail and corrections added about the Copyright Act regime because I realised I hadn’t explored the issues fully and hadn’t considered how the Act was at the time of the offence. Doh! Now corrected. I should be careful with IP law – all those Acts are confusing.

The biter bit?

A Chinese dissident and his wife are suing Yahoo! Inc (“Yahoo”) in a United States District Court (with the help of the World Organisation for Human Rights USA). The Complaint states that Yahoo “willingly provided Chinese officials with access to private e-mail records, copies of email messages, e-mail addresses, user ID numbers, and other identifying information about the Plaintiffs and the nature and content of their use of electronic communications.”

Wang Xiaoning was accused of “incitement to subvert state power” because of certain essays he wrote for online journals called Democratic Reform Free Forum and Current Political Commentary. Wang and his wife allege that Yahoo was pressured by the Chinese government to block Wang’s Yahoo “Group account”. Wang then set up a new individual e-mail account via Yahoo and continued sending material. It is then alleged that Yahoo allowed the Chinese government to access information which allowed it to identify and arrest Wang. He was arrested in September 2002, and a year later, he was convicted and sentenced to 10 years in prison and two years’ subsequent deprivation of political rights. Wang is imprisoned in a high security prison where many political prisoners are held. He alleges that he has suffered severe physical and psychological abuse as a result of his imprisonment.

According to Human Rights in China, the offending sentiments expressed by Wang included the following:

• “Without a multi-party system, free elections and separation of powers, any political reform is fraudulent.”
• “Never forget that China is still an authoritarian dictatorship.”
• “The Four Cardinal Principles [upholding the socialist path, the people’s democratic dictatorship, the leadership of the Chinese Communist Party and Marxist-Leninist-Mao Zedong thought] are the greatest impediment to establishing a democratic system in China.”
• “Look at China today – workers and peasants have been suppressed into the lowest level of society. Tens of millions of workers are unemployed and many workers are cruelly exploited and oppressed; they have no right to strike or establish labor unions, and no protection for their most basic rights.”
• “The main reason that the Chinese Communist Party has been able to retain power in spite of being so corrupt is that China does not yet have a party that can replace the Communist Party.”

The claims are brought pursuant to the Alien Tort Statute 28 U.S.C. § 1350 and the Torture Victim Protection Act 28 U.S.C. § 1350. It is claimed that these statutes give jurisdiction over actions which American based companies commit in other countries. The Complaint alleges that Yahoo provided information about Wang and other dissidents, despite its knowledge that the provision of such information would enable the Chinese government to torture and commit torts against Wang and other dissidents. It is alleged that Yahoo provided the information because it had to do so to continue its profitable business in China.

Usually, the extraterritorial operation of US law has been used enforce the interests of American corporations abroad, sometimes to the detriment of locals and local companies (as Australia may learn to its sorrow as a result of its entry into the Australia-US Free Trade Agreement). It is heartening to see that the argument that certain principles should apply in other countries can be turned against American corporations who aid and abet violations of human rights in other countries.

(Via Jurist and the Washington Post)

USA says: You’re nicked, sonny…

Both skepticlawyer at Catallaxy and Shaun Cronin at LP have written posts on the case of Huw Griffiths (reported here).

Griffiths is a former internet software pirate who cracked and downloaded software and distributed it for free. He has been charged under US Copyright law, and charged by a US grand jury (equivalent of a committal hearing – merely establishing that there is enough evidence to proceed). The US has demanded that Australia extradite Griffiths to face trial before the US District Court in Virginia.

Griffiths has agreed to plead guilty to offences under Australian copyright law (which he also breached). Minister Chris Ellison could have refused the US extradition request, but after months of delay, Ellison has issued a warrant for Griffiths’ extradition. Meanwhile, Griffiths was refused bail and has languishing in an Australian gaol for almost three years.

Seems a pretty harsh punishment. Many convicted criminals get less time in gaol than that.

As skepticlawyer says, the case raises two interesting questions:

1. How sensible is IP law? Should IP rights be accorded the same protection as other property rights?
2. What are the implications of the extraterritorial reach of the legal arm of US law? The US loves to enact extraterritorial laws (eg, US “antitrust” laws)

One of the ironies is that in the 18th century, the US was one of the biggest copyright violators out there. There was a massive black market in unauthorised copies of various English novels. However, the shoe is on the other foot now…

Being a nerd, I must delve briefly into some legal considerations… Article 3 of the Agreement on Trade Related Aspect of Intellectual Property Rights (“TRIPS”) says that states must accord foreign copyright holders the same degree of protection that they accord their own copyright holders (called “national treatment”). The only basis on which the US could validly argue that its IP laws should operate extraterritorially would be if Australian law did not comply with national treatment (ie, it did not protect US copyright holders to the same extent as Australian copyright holders). Australian law clearly complies with this provision, and in fact, is in conformity with international intellectual property norms. Therefore, I would argue that the purported extraterritorial operation of the US copyright law is clearly baseless in this instance. Further it is a breach of Australian sovereignty.

So it seems to me (without knowing the full details of the case) that the obvious response is to (a) refuse to extradite Griffiths and (b) charge him under the Australian Copyright Act.

Kitlers

Sometimes you find really weird things on the Internet (understatement of the century). The latest site I’ve found is called “Cats that look like Hitler“. You know the cats, those black and white ones with a little black spot of fur under their noses (like a mustache)? If you don’t know what I’m talking about, go check it out.

Would I lie to you, honey?

It seems that the doubts expressed my earlier post about the accuracy of information acquired via e-mail were well founded. A recent study has found that office workers are most likely to lie to their bosses via e-mail or telephone. Employees are least likely to lie with face-to-face communication, particularly where they feel close to their boss.

In another topic relating back to “wanting to believe”, it seems that Terry Lane might have been duped again. This time, he said in his column that the Bush government had pressured Rangers not to mention the geological age of the Canyon to try and appease creationists. To be fair, he relied on what I would suggest was a deliberately ambiguous and misleading press release from an organisation called PEER (Public Employees for Environmental Responsibility) which opened by stating that “Grand Canyon National Park is not permitted to give an official estimate of the geologic age of its principal feature, due to pressure from Bush administration appointees.”

Also, Lane was certainly not alone in being misled by the press release: the Daily Kos, Time Magazine, Dvorak Uncensored, Digg, Centreblue.org, History News Network, and US Gov Info all have information on their websites about the supposed “gag” on Rangers.

However, the press release was misleading in the inference that Rangers were “gagged”. Its real gripe is about the fact that the Grand Canyon Bookstore is selling a book giving a creationist account of the way in which the Canyon came into being (…God was feeling adventurous and decided to make some pretty rock formations? The mind boggles. I don’t even want to know…)

In fact, the Canyon website specifically mentions the fact that the gneiss and schist found at the bottom of the Canyon dates back 1,800 million years. The website also notes that the oldest human artefacts found at the Canyon are 12,000 years old.

Subsequently, the following emerged, as related in this post on Seattlest (a website about Seattle):

“Jeff Rook, who wrote the release, said that others have indeed contacted the PEER office and complained of being misled. “If they felt misled by it, we’re sorry.” There is no intentional obfuscation required when answering questions about the chasm’s age in response to Creationist queries or pressure. “At least not this week” quips Rook. Rangers and interpretive staff are free to discuss its scientific history with impunity.The PR rep for the park service, Dave Barna (arguably, not someone PEER trusts all that much, obviously), adamantly told us that the Grand Canyon is as old as scientists say it is, and no-one who works for the park would be asked to say otherwise. He also said he’d send us their official statement on the matter, which we have yet to receive. (PEER asserts that at one point, an administrator in the Canyon’s office would reply to media requests about the age of the Grand Canyon with “No comment.” But one fool does not a conspiracy make.)”

The Daily Kos has also corrected the story here.

The problem is that I’m sure this one will keep going around like it’s fact – again, it’s one of those things which people just want to believe is true!!!

(Via Gary Hughes, Tim Blair, Seattlest)

Sharing mp3s on the Web

Just found this interesting blog post on the Full Federal Court’s recent decision in Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187. The decision concerned a website set up with links which allowed people to download mp3s. The Federal Court found that the website contravened Australian copyright law. The author of the post is an IP law expert, and she gives a measured analysis of the case, saying that all is not lost for those who wish to share mp3s on the ‘net.