By closely following the Adscam case in Canada, Tim Worstall has been posting about a topic that every blogger should be watching carefully: the fraught problem of defamation law as it applies to the internet. He asks exactly the right question:
… where is something on the internet published? Where we the publishers are? Where our server is? Where the download occurs? Different jurisdictions will have different views on these matters but it seems clear how the Common Law jurisdictions regard it. Articles are published, and thus subject to the defamation laws, where they are read, not where they are written.
Different jurisdictions are coming to very different conclusions on this question.
It seems that both Australia and Canada, which are close to the British tradition in this respect, are interpreting their domestic law to say that defamation occurs in the place where the document in question is read.
The United States, by contrast, is likely to be more restrictive. The key U.S. defamation case, New York Times v. Sullivan, specifically says that the broad reach of British libel law is “repugnant” to the First Amendment.
And this may be crucial for bloggers based in the United States: American courts may not be willing to enforce British libel judgements.
So, no matter where cases are brought, an associated problem will be the difficulty in enforcing any judgements on publishers based in other jurisdictions.
One major difference this reveals between the US and other common law traditions is that American media law is a special area of law that revolves around interpretations of the First Amendment. In Britain, by contrast, it has focused on a property right to reputation.
With the Human Rights Act encorporating a US-style right to free expression into British law under Article 10 of the European Convention on Human Rights, we can only hope that British libel law will move in a more publisher-friendly direction.
As the first truely global medium raising these issues, supra-national law of some sort will probably play an important role in shaping the law of defamation on the Internet. No doubt a future ECHR decision will eventually harmonise the situation within the 43 member states of the Council of Europe. But beyond that, who knows.