Defamation

[John O'Hagan]

On Thu, 22 Oct 2015 19:05:04 +1100
Chris Angelico <rosuav at gmail.com> wrote:

> On Thu, Oct 22, 2015 at 11:45 AM, John O'Hagan <mail at johnohagan.com>
[...]

> >
> > For better or worse, that's not how defamation law works. Generally,
> > the defaming is regarded as happening where the material is read,
> > i.e. at the point of download. The location of upload, hosting etc
> > is irrelevant, although the uploader and the host can both be liable
> > along with the author. Of course, the point is moot if none of those
> > people has assets in that jurisdiction.
> 
> So... someone in Europe who rents a server in the US has to worry
> about defamation law in literally every country on this planet, or
> else IP-ban people from accessing the server, just in case s/he's
> liable? Is that really how this works? Ouch.
> 

It does seem harsh, and that Gutnick case I linked to was greeted with
great alarm around the world back in 2002 for the same reasons as
you've raised. In fact, some predicted a new age of "libel tourism",
where people would travel to countries with especially harsh laws in
order to sue, and the subsequent "death of the internet".

But it hasn't turned out as badly as all that. The only noticeable
change has been some cautious online publishers requiring readers
to register. As I mentioned, it's only an issue if the defamed has
reputation and the defamer has assets in the same jurisdiction. 

Once you think it through, it's pretty logical. If I write a defamatory
letter about you and put it in a mailbox (upload it to a server), no
defamation has happened yet. If someone reads it later (downloads it) in
a country where no-one has heard of you, still no defamation. If
someone reads it in a country where everyone knows you,
but where I have no property, then technically there is defamation
but you have no way to make me pay. It's only a civil claim so it's not
like I'll have a criminal record or Interpol on my tail or anything.

The other reason it makes sense is the alternative. If server location
determined the jurisdiction, you'd have Cayman-style "libel-havens"
with super-lax laws, stacked with servers people could use to
defame anyone anywhere with impunity. I love free speech but not that
much.

Regards

John