I would suggest that this is not so much "interesting" as stupid. People
have to be responsible for their own words, and cannot be responsible for
those uttered by others. Of course, the entire concept of defamation is
stupid, as it depends largely upon the listener's discrimination and the
breadth of publication, rather than upon the speaker's intent. Yet even
accepting the silly idea that the speaker should be held responsible for the
actions of the receiver - which is what defamation does imply, this decision
was more than extraordinarily stupid, and, or, badly argued.
Let me argue by analogy. Should an otherwise uninvolved building owner be
held liable for a defamation overheard in a building owned? Or the person
who built the building? Or the person occupying it? Or the speaker? My
understanding of this ruling, seems to suggest that the mechanism of speech
capability determines the potential for liability. So this judgment strongly
suggests that the type of service (building) provided would make a major
difference, to the answer.
Consider, for example a "shared publication environment" e.g. IRC, and
Usenet where it might be far more difficult to decide where the limits of
liability ended as opposed to say a BBS, mail list or discussion log. If for
example, each News server owner became liable for all articles transferred
or cached by it then it would be as if, by having a sidewalk* (US) in front
of your house, you would became liable for defamations uttered on it. Were
this to happen, the better resourced providers would receive advice to
terminate their services - i.e. rip up their sidewalks, and everyone would
be forced to walk in the streets - or use the less resourced providers. This
would place more and more of a burden on the least resourced providers,
until the system became unusable due to overload or was completely
withdrawn.
Perhaps the users would be forced to migrate to e.g. gnutella services,
where the users are (largely) anonymous and there is no central service
provider to be sued. At which point, unlikely as it may seem (not easy to
identify a defendant, never mind enforce a judgment or collect damages),
somebody might attempt to apply this ruling there too. If we did, it would
be as if we do supported suing governments for providing "streets", were a
defamation to be heard in the street.
So too, providing a communications channel or infrastructure is
fundamentally different from speaking and this ruling if taken to its
logical conclusion, implies a massive threat to all possible forums of
communication, and possibly social interaction, not just a threat to the
current infrastructure of the Internet. If not, it implies a massive
prejudice against some forms of speech as opposed to others.
Hermit
*pavement (UK)
---- This message was posted by Hermit to the Virus 2002 board on Church of Virus BBS. <http://virus.lucifer.com/bbs/index.php?board=51;action=display;threadid=266 42>
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