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ISPs Vulnerable in Defamation Action Against Their Users
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Date: Sun, 29 Mar 1998 08:47:18 +1000
From: Stan Johnstone
Melbourne PC User Group, Australia
For Immediate Release I-9803
ISPs VULNERABLE IN DEFAMATION ACTION AGAINST THEIR USERS
Australia's Largest PC User Group Settles Out of Court
MELBOURNE, Australia, 18 March 1998. Australia's largest PC user group, Melbourne PC User Group (Melb PC), a not-for-profit association, has settled out of court a claim brought by a UK-based litigant. Melb PC acts as an Internet Service Provider (ISP) to about 4400 of its 11,000 members. The action involved a defamation suit arising from comments allegedly made from the account of one of its subscribers in a Usenet newsgroup in October and November 1996. The settlement did not have a confidentiality clause or any admission of liability.
Melb PC's Honorary President, Stan Johnstone, has mixed feelings about the outcome and said, "I wish to be clear that we are not commenting on the alleged defamation. Our concern is that an Australian ISP runs the risk of being treated as a publisher by a court anywhere in the world."
Added Mr Johnstone, "This case had the potential of becoming a landmark case for ISPs and Usenet participants alike, particularly in the United Kingdom and Australia. Although we were confident of winning the case as an ISP, we are primarily a volunteer organisation and did not like to speculate our members' money to fight an action in the UK courts. We believe there is presently litigation on two similar matters involving a Toronto newspaper and a New Zealand government entity respectively, both of whom must have deeper pockets, so let us see what develops there.
"We were dragged into this action because U.K. law fails to clearly recognise that an ISP carries a vast amount of Internet traffic and cannot reasonably be expected to act as a moderator between Internet users.
"The range of disputes that could arise between Internet users around the globe is endless, and no ISP - let alone a volunteer organisation - should be held responsible for preventing them."
Best known as Australia's largest PC user group, Melb PC is recognised around the globe as a leader in the user group movement and is the second largest in the world (after HAL-PC of Houston, Texas). Founded in 1984, Melb PC has a motto of "Users Helping Users", wherein volunteers run a variety of services for the group's members. For example, Melb PC provides a bulletin board service, a 64-page, award-winning magazine, PC Update, and a venue for meetings, large and small. At these meetings members learn more about their areas of interest. All of the group's services are designed to help its members get the most from their computing activities. Melb PC members include members of two state Parliaments, corporate and community leaders, business professionals, home users, retirees, and students.
# # #
All trademarks mentioned are trademarks of their respective companies.
For media interviews, please contact:
Stan Johnstone, President Telephone: +61 3 9578 3091; Fax: +61 3 9578 3091 Email: president@melbpc.org.au Web: http://www.melbpc.org.au
For Melb PC membership enquiries, please contact:
Telephone: +61 3 9699 9222; Fax: +61 3 9699 6499.
~~~~~~~~~~~~~~~~~~~~~~~~~~ Stan Johnstone ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ mailto:stanj@melbpc.org.au Voice/fax: +61 3 9578 3091 Mail: 13 Thomasina Street, Bentleigh East 3165 Victoria Australia ________________ President - Melbourne PC User Group _________________
Date: Sun, 29 Mar 1998 08:49:49 +1000
From: Stan Johnstone
Melbourne PC User Group
For Immediate Release I-9804
IS AN ISP A PUBLISHER?
Some Users and ISPs Are Operating in the Dark
MELBOURNE, Australia, 18 March 1998. Some ISPs and Internet users appear to be operating with their head in the sand when it comes to Internet legal exposure," said Ash Nallawalla, a founder of the Melbourne PC User Group (Melb PC) Internet service and an online services consultant who has been an active Usenet participant for 11 years.
Commenting on the recent out-of-court settlement with a UK- based plaintiff, where Melb PC was alleged to be a possible publisher of defamatory material, Mr Nallawalla said it was a sobering lesson for the group and a timely warning to users and ISPs alike. He said, "The global nature of the Internet and the lack of legal precedents in many countries spell trouble for the ignorant. There are two potential problem areas: home pages and news articles.
"Many ISPs allow users to display their own home pages, with varying restrictions. While business home pages are self- explanatory, the personal ones can be problematic. Copyright violations often arise from ignorance. Some newsgroup or chat channel users are complacent because they see a lot of vulgar abuse between Usenet participants and they assume that this is acceptable behaviour.
"Users can be excused for their ignorance or they pay for it, if their service contract contains a clause that indemnifies their provider for their actions. Some ISPs take an editorial role by not providing access to controversial newsgroups or by 'approving' home pages before they are made visible to the world. Others believe that it is safer for them to offer 'everything' and to have no oversight in the content of home pages on the premise that the sheer volume of information is incapable of being policed by the administrators."
So what can go wrong for an ISP? Melb PC has a 'lawyer- drafted' service agreement. It does not provide a home page facility. It insists on proper identification and adherence to netiquette by its 4400 users in all communications and educates the mischievous or ignorant. This irritated some of its former subscribers, who left for more lenient pastures. Through its Internet service Melb PC provides a number of internal newsgroups, in which members are encouraged to learn and use the skills they will need in the wider Internet environment. The group's web site points members to Web sources of information about netiquette, while its magazine regularly features articles on general netiquette and Internet culture. Yet, some problems can slip through the cracks, because administrators usually hear from an external complainant after the fact. It does not (and could not) monitor e-mail or news traffic.
It is one thing to encourage members to conduct themselves well, and quite a different thing to police their conduct. Where an ISP receives a complaint about an online statement, it is being asked to play judge and jury, often with insufficient information on which to base a fair judgment.
It is not easy for the ISP to judge whether a user has defamed someone. Asks Ash Nallawalla, "Should an ISP be obliged to provide a subscriber's details to a complainant? Of course not. Should the user's account be blocked or cancelled? That is a difficult one."
While some activities such as spamming can be determined from their sheer volume, it is difficult to distinguish between 'friendly banter' that a passer-by may regard as actionable and 'harmless name-calling' that leads to a suit. Worse, a statement that would be acceptable in the ISP's home country may be claimed to break the law of some other country.
An actionable remark on a home page or a news article that originates on a computer in Melbourne can be viewed by someone in any country that is part of the Internet. The legal question is the place of publication and, therefore, of jurisdiction. The subscriber's service agreement is of no consolation when the overseas litigant targets the ISP and the subscriber in a joint defamation suit in his local jurisdiction. Regardless of the outcome, this can consume time and money and there is no certainty that the subscriber is capable of reimbursing the ISP in full.
Does this mean that ISPs should pack up and go home? "Of course not," said Mr Nallawalla. He added, "Urgently needed is international recognition of ISPs as common carriers, preceded by legislative protection of this nature by our own government. Until that happens, ISPs should take legal advice and be prepared for litigation."
Melb PC has been criticised as having "given up" too soon, and making ISPs a target for other litigants. As unpaid volunteers of a service organisation, their goal was not to make life easier for other (mainly commercial) ISPs, -- they were obliged to place members' interests first.
Nonetheless, there wasn't a fear of losing the case as an ISP. There were practical hurdles, namely the expense of flying witnesses to the UK, their absence from their employment, the prospect of recovering costs from the plaintiff and/or the subscriber, etc. It is a Pyrrhic victory for an ISP to "win", then find that the "loser" was impecunious.
Best known as Australia's largest PC user group, Melb PC is recognised around the globe as a leader in the user group movement and is the second largest in the world (after HAL-PC of Houston, Texas). Founded in 1984, Melb PC has a motto of 'Users Helping Users', wherein volunteers run numerous meetings, a bulletin board service, an Internet service, produce the 64-page, award-winning magazine PC Update, etc. Melb PC members include members of two state Parliaments, corporate and community leaders, business >professionals, home users, retirees, and students.
Ash Nallawalla is a founder and webmaster of the Melb PC Internet Service. He has been involved with this user group since 1986 and has held elected office on its Committee of Management on and off over the years. His main interest at the user group is its award-winning colour magazine, PC Update, which goes to 14,000 subscribers including all members of the Perth and Adelaide PC user groups. He has held every editorial title from Assistant to Managing Editor and is presently the Reviews Editor. He has also contributed to The Age and Australian Financial Review newspapers and other commercial publications. He is a Director of the US- based Association of PC User Groups, an umbrella body of international user groups.
# # #
All trademarks mentioned are trademarks of their respective companies.
For media interviews about the Melb PC Internet Service, please contact: Stan Johnstone, Melb PC President Telephone: +61 3 9578 3091; Fax: +61 3 9578 3091 Email: president@melbpc.org.au Web: http://www.melbpc.org.au
For media interviews about the Internet, please contact: Ash Nallawalla, Melb PC Committee Member Telephone: +61 15 541 253; Fax: +61 3 9742 4566 Email: rev-editor@melbpc.org.au
Callers outside Australia are requested to use e-mail if they cannot call during Australian Eastern Daylight Time business hours 9 AM to 5 PM (2200 to 0400 UTC)
~~~~~~~~~~~~~~~~~~~~~~~~~~ Stan Johnstone ~~~~~~~~~~~~~~~~~~~~~~~~~~~~ mailto:stanj@melbpc.org.au Voice/fax: +61 3 9578 3091 Mail: 13 Thomasina Street, Bentleigh East 3165 Victoria Australia ________________ President - Melbourne PC User Group _________________ ```
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