Sunday, October 11, 2009

ISP's liability- defamation

Liability for a defamatory statement may also be extended to an ISP under the principles of vicarious liability or because, in providing online access facilities, the ISP is directly liable as a publisher or disseminator of the offending statement.The fundamental basis of defamation liability is the publication of untrue information. The liability to be imposed is based on the damage to the reputation of the person referred to in the information that is then disseminated to others. The case of Godfrey v Demon is the first UK case to find a responsibility on the part of an ISP in regards to defamation. In this case, the defendant, an ISP was sued for a defamatory statement carried in a newsgroup hosted on its server. The court held that because Demon chose to receive and store the newsgroup, and had the power to delete the messages from it; it was therefore considered as a publisher and is subjected to any specific defences under the Defamation Act 1996. However, in the case
of Cubby Inc v Compuserve Inc, it was held that an ISP’s chosen mode of activity in passing on information from third parties unmodified and unexamined rendered it more like a distributor than a publisher and thus not liable for allegedly defamatory statements made by a subscriber in posting to news group.

The difficulty in establishing an ISP's liability for defamation is that national defamation laws differ so widely.

According to Chris Reed and John Angel (2000, Computer Law, 4th Edition, London, Blackstone Press Limited), "… it is possible to state with certainty that in most, if not all, jurisdictions, the fundamental basis of defamation liability is the publication of untrue information, that liability will be based on the extent of the damage to the reputation of the person referred to in that information, and that the person's reputation of the person referred to in that information, and that a person's reputation cannot be damaged unless the information is disseminated to people other than the author." In a simple word defamation occurs when a person expresses words that may lower another person’s reputation in the eyes of the public.

The laws governing defamation in Malaysia are including in civil and criminal cases. In civil cases of defamation, when a private person sues another private person for defamation, the Defamation Act 1957 is applicable. Whereas in criminal cases of defamation, when the state prosecutes a private person for defamation, Section 499 to Section 502 of the Penal Code is applicable.

In Singapore, with respect to the role of ISPs. section 10 of the Electronic Transaction Act protects an ISP from liability from making, publication, dissemination or distribution of third party materials, if the ISP were merely providing access to such materilas. A third party refers, in this context, to a person over which the ISP has no efective control.


Anonymous said...

that is what u have in mind regarding defamation. can i know, what if a defamation act was done by a person towards another person, but both are from different countries, what law or convention shall apply to them?

-fatin: D.privacy-

Anonymous said...

is there any international convention or treaty that has been signed for the past few years are regarding this defamation issue?

-syarafi: D.privacy-

NurFarahiyah Othman said...

syarafi: Suruhanjaya Komunikasi dan Multimedia Malaysia (SKMM) : a body ; has power and responsibilities in controlling technology industry and multimedia in Malaysia.

other new info i'll inform u.. thanx for the Q

sharm said...

there is defamation against a company in internet. my question is here is whether a company can sue a person who wrote in the internet?