More on defamation and blogging

It seems that the threat of defamation proceedings for blog posts is alive and well in Australia. Check out this post on The Local at blogs.com.au.

(Hat tip to the inestimable Jim Belshaw)

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 Usually, there is a disclaimer beside the box, stating “will not be published” or “for verification purposes only” or something of the sort.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).

A new defence? Provocation by computer

A German man has been excused for throwing his computer out of his apartment window in the middle of the night and disturbing the peace. A police spokesman said, “Who hasn’t felt like doing that?” I sympathise too. Sometimes computers can be so frustrating. I once slapped a computer, which hurt me more than it hurt the computer, but it made me feel so much better.

Property and the body

The thing I love about this blogging gig is coming across other interesting blogs and people. Can I recommend that you read this post over at Balneus by Dave Bath about property in body parts?

The EU generally prohibits sale for profit of body parts, and Dave queries if there should be an exception for the sale of items such as hair for profit. He makes the good point that real hair can be used for wigs for people suffering from alopecia or baldness for other medical reasons (eg, undergoing chemotherapy). I know that some ladies in India sell their hair to be used in hair extensions for Western women. Well, if it keeps the family fed and healthy, why not?

It’s an interesting question. Coincidentally, the other day someone sent me this crazy site where you can purportedly sell your DNA for profit. The idea makes me feel squeamish. No way anyone’s gettin’ near my DNA. It worries me that companies might seek to patent people’s DNA and use the patent to monopolise the pharmaceutical benefits which might be derived from it. Sound neurotic and far-fetched? Uh-uh. Have a look at the case down below and you’ll see why lawyers become such neurotic beasts – they see the worst behaviour from everyone. Anyway, for reasons I will discuss, the sale of DNA would not be legal in Victoria.

It should be noted that, generally speaking, neither the selling nor buying of human tissue is legal in Victoria: ss 38(1) and 39(1), Human Tissue Act 1982 (Vic). However, there is an exception in s 39(2) which provides that the Minister may give a permit to a person to buy human tissue for profit in certain circumstances. Tissue is defined to mean “an organ, or part, of a human body or a substance extracted from, or from a part of, the human body.” Therefore even the sale of human hair or fingernails would not be legal in this State, unless a Minister was prepared to licence someone to purchase hair. Sperm, ova and foetal tissue are not covered by the provisions dealing with donation of human tissue. These types of tissue are covered by the Infertility Treatment Act 1995 (Vic).

As I said in comments at Dave’s site, there’s a famous case called Moore v Regents of the University of California (1990) 793 P 2d 479 about property in body parts. Nasty people like me make poor students write essays about the case.

Moore was treated for leukaemia at the University of California Medical Centre. His spleen was removed as part of his medical treatment. His doctor and a researcher established a “cell line” with his spleen cells. Because the cells were cancerous, they produced a particular protein in large quantities for an indefinite period. They patented the cell line and made a profit. Moore sued them, saying that he had not consented to the use of his cells in this way.

One of Moore’s claims was that the spleen cells were his “property”, and that by using them without his consent, the University had committed the tort of conversion. They had been detached from him, and therefore were separate from him – did this mean they could be owned by him, as they were derived from him? A majority of the Supreme Court of California said that they were not Moore’s property. However, the University was found to have breached its fiduciary duty towards Moore (namely its duty not to profit at his expense without obtaining his consent).

I was trying to think why I find the sale of human hair less problematic than the sale of human DNA. My thought is that there is a distinction between cells which are living at the point of excision from the body (cell lines, ova, sperm, foetuses, blood etc) and cells which are dead at the point of excision from the body (hair, toenails etc).

Still, I think the only way you could safely allow for-profit use of hair and toenail clippings is to create an express exception for it: eg, “a prohibition on making the human body and its parts as such a source of financial gain, excepting toenail clippings and hair.” What are your thoughts?

P.S. Just realised that this is my first post with a category of “property”. I can’t believe it’s taken me this long to post about property law.

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.