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April 05, 2005

Where Are Articles Published?

Following on from yesterday’s piece on Adscam some further links to what appears to be the law on such matters. Essentially, 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.

Start with Dow Jones v Gutnick, where the issue first arose concerning the internet. The nub of the case? Was an article in Barron’s subject to the law in New Jersey where it was loaded into the net or in Victoria where it was read, and where the plaintiff lived? The answer, Victoria.

Dow Jones specifically raised the point that this meant that anything published on the net was now subject to all the laws of all nations. Indeed responded the court, it is:

Finally, if the two considerations just mentioned are not thought to limit the scale of the problem confronting those who would make information available on the World Wide Web, the spectre which Dow Jones sought to conjure up in the present appeal, of a publisher forced to consider every article it publishes on the World Wide Web against the defamation laws of every country from Afghanistan to Zimbabwe is seen to be unreal when it is recalled that in all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort. 

  1.  

Thus for a publisher in New Jersey, the law in Victoria is the relevant one, when writing about a person and events in Victoria.

Common Law jurisdictions typically look at what the others are doing in a certain area to see what they should do when confronted with the same circumstances. Thus with Canada in Bangoura v Washington Post. Same general idea, where was an online article published, in DC, where the server was and it was uploaded? Or in Ontario, where it was downloaded and read, and where the plaintiff lived and thus had a reputation that could be defamed? Answer, Ontario:

The key argument advanced by the Post is based on a case known as New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the court refused to enforce British libel judgments on the ground that British libel law is repugnant to the policies of the U.S.A. Our courts do not share the American view that British libel law, which is similar to our own, is any less civilized than the American law. See Hill v. Church of Scientology, [1995] 2. S.C.R. 1130 at 1187 - 88, Cory J. The Supreme Court of Victoria (Australia) does not share the American view either. The following passages from the responding party's factum properly summarizes the Victorian view point and puts the whole issue in a proper perspective:

    

(a)         The High Court of Australia has very recently rendered judgment in a very similar factual situation. In Dow Jones  &  Company Inc. v. Gutnick, [2002] H.C.A. 56 (10 December 2002), a corporation registered in the United States, published material on the Internet that was allegedly defamatory of Mr. Gutnick, who sued in the Supreme Court of Victoria to recover damages to vindicate his reputation. In a unanimous decision, the High Court of Australia held that the Australian courts had jurisdiction over the matter, and that Australian courts were the most convenient forum ...     

(b)         The publication of allegedly defamatory articles via the Internet that were accessed in Victoria was the factor that persuaded the Court that it had jurisdiction. In cases of multi-state defamation, it is the publication, not the composition of the libel, that is the actionable wrong. Defamation is to be located at the place where the damage to reputation occurs. Ibid., per Gleeson CJ., McHugh, Gummow and Hayne J.J. p. 8.

    

(c)         The court noted that those who make information accessible by a particular method, do so knowing of the reach that their information may have: "In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction." Ibid., per Gleeson CJ., McHugh, Gummov and Hayne J.J. p. 7.     

(d)         Similarly, in a concurring judgment Justice Callinan stated:

    

A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it ... Publishers are not obliged to publish on the Internet. If the potential reach is uncontrollable then the greater the need to exercise care in publication.     

Ibid., per Gleeson CJ., McHugh, Gummov and Hayne J.J. p. 26 - 27.

    

(e)         This does not mean that publishers will be faced with uncertainty and the possibility of being sued in any jurisdiction in the world for each publication. The Honourable Chief Justice Gleeson noted that:     

Those who would seek to order their affairs in a way that will minimize the chance of being sued for defamation must be able to be confident in predicting what law will govern their conduct. But certainty does not necessarily mean singularity. What is important is that publishers can act with confidence, not that they be able to act according to a single legal system, even if that system might, in some sense, be described as their "home" legal system.

So, we seem to have a system in which what is posted will be subject to review by foreign courts when what is posted has broken the (defamation) laws of those countries. We also have that point that:

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the court refused to enforce British libel judgments on the ground that British libel law is repugnant to the policies of the U.S.A.

so perhaps US based bloggers can say what they like about foreigners because US courts will not enforce certain foreign decisions.

Which brings us to the current matter at hand. Given the above, various bloggers have quite clearly broken Canadian law by making available material, to Canadians, in Canada, material that was under a publication ban. And to two further questions.

1) Will the Canadian courts try to do anything about this? Will they launch a case or cases?

2) Will the US courts, if there is a decision against a US citizen, refuse to enforce it as being repugnant to the policies of the USA? Or, if you prefer, we know that certain libel laws are repugnant, what about laws forbidding publication so as to ensure a fair trial?

No, I’m not a lawyer and have no legal training. I have no idea how this is going to play out in the real world, but I do think it is going to be very interesting. Just what laws are we subject to when we blog?

There are, as you might understand, a number of people who are unhappy with this situation, people like Reporters Without Frontiers. Note the date on that post, 11 March 2005. This whole area of law is still up in the air.

April 5, 2005 in Current Affairs | Permalink

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Comments

I don't know the answers - maybe the EU should ignore all US laws until they accept the laws of other countries? There was a big issue a cpl years ago about US pornagraphy (paedophile) laws being able to convict British subjects who maybe posted pictures of their own children online - I think it was the case that in the US taking a photo of a baby with no clothes on was a criminal offence. Also depicting minors in a sexual way.
As far as I know all the extension to the laws, US courts havent yet closed down say japanese sites with pictures of women dress in schoolgirls clothing and showing off their naughty bits.

Ive always gone by the idea that I am British so am subject to British law, but that my web host is in the US, so what I publish on it must be acceptable under US law (as well as the host's T&Cs). Therefore, since I host in the US I should respect COPPA [if I had user registration and required any personal details], but previously when I hosted in the UK I ignored COPPA as being an irrelevance.

Posted by: Monjo | Apr 5, 2005 1:01:16 PM

Does this apply to imported versions of printed material too then?

Tim adds: In the UK, imported magazines and newspapers are subject to UK libel laws, yes, Very much so. Several cases have be won on that basis.

Posted by: Ken | Apr 5, 2005 6:50:59 PM

Tim, as I posted below, you don't seem to grasp the difference between civil and criminal law. Captain's Quarters, if it can be charged with anything in Canada, could be cited for the crime of contempt of court.

That is an uneforceable charge as long as Ed does not enter Canada...and can you imagine the stink if Canada were to request extradition!

The case law you refer to above largely deals with TORTS and findings of monetary damage. Who in this instance has a tort against Ed? And if there is no tort, there is no standing to bring a civil charge that would result in a financial judgment.

Posted by: Blue | Apr 5, 2005 8:35:41 PM

Tim
Here is the link to an article on the Godfrey and Motley Fool cases: http://www.jisclegal.ac.uk/ispliability/ispliability.htm
They both concern the liability in delict (sorry, Tort for non Scots lawyers) for ISPs if they allow defamatory content to be posted on sites that they host. Blue is quite right that the Adscam issue turns on contempt of court, which is a criminal matter, and Captain Ed may be quite safe as long as he doesn't want to summer in Quebec. However, there are important underlying issues here of international private law, where the age old concept of lex loci delicti (the place where the harm occured being the place where you sue) being brought into the 21st century.

Posted by: Arthur Seat | Apr 5, 2005 9:31:32 PM

Don't forget that people in the United States are protected under the 1st Amendment. That means that we enjoy a greater freedom of expression than anywhere else in the world, laws against child porn notwithstanding.

The idea that foreign courts and the laws of other countries have any jusridiction over what US citizens print or publish on the Internet is pretty much a dead issue, at least as far as we're concerned. You can read about the judicial decision that spelled it all out here.

James

Posted by: James R. Rummel | Apr 5, 2005 10:48:33 PM

It is not just libel that you have to worry about across international legal jurisdictions:

1) The as yet unresolved Indymedia / Rackspace affair last October

http://www.indymedia.org/fbi/

- a Swiss police investigation (or was it also an Italian one ?) into some content on a French website, hosted by a US based internet hosting company, but with the server physically located in London (therefore subject to UK law), was physically grabbed and taken offline, together with a neighbouring server, on the orders of the FBI in the USA (who had no actual investigative interest in the case), taking websites belonging to independent groups offline, as far afield as Latin America.

The "collateral damage" to these websites did not involve any requests or notification to any UK Government, legal or police authorities, according to more than a dozen Parliamentary Questions answered by the Home Office, asking why UK sovereignty and relevant laws such as the Regulation of Investigatory Powers Act 2000 and the normal evidential procedure as used by the UK National High Tech Crime Unit were not complied with.

Your website content is at risk of being taken offline without warning or compensation, as a result of "collateral damage" from quasi legal requests for "cooperation" by international police authorities.

2) Babar Ahmad, a British citizen , is currently facing extradition to the United States, under the new fast track Extradition Act procedures.

These procedures (which have not been ratified by the US Congress), now mean that a prima facie case does not have to be presented to a UK court by the USA authorities, even though, for any reciprocal extradition request by the UK authorities from the USA, prima facie evidence does still have to be brought before a US court.

http://www.freebabarahmad.com

After having been arrested and beaten up under the Terrorism Act, and then freed without charge, Babar Ahmad is now accused of controlling (from the UK) a couple of websites, hosted in the USA. These websites, which had bulletin board discussion forums, where allegedly extremnist Islamic content was posted by the internet public, and where there was discussion of how to send funds or non-miltary supplies to Chechnya and Afghanistan. Neither of these countries or organisations such as the Taliban were officially considered to be terrorist organisations in the UK at the time (circa 1998), although the US had imposed economic sanctions on Afghanistan, the UK had not.

Under their so called PATRIOT Act, the USA seems to claim legal jurisdiction over any internet traffic or any TCP/IP packets at all, which happen to be routed via the USA (a lot of foreign ISPs do this for reasons of cost and connectivity).

Posted by: Watching Them, Watching Us | Apr 5, 2005 11:19:15 PM

"New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the court refused to enforce British libel judgments on the ground that British libel law is repugnant to the policies of the U.S.A."

Wait...where does New York v. Sullivan have ANYTHING about UK libel judgements in it? It is about an Alabama STATE statute?

http://www.bc.edu/bc_org/avp/cas/comm/free_speech/nytvsullivan.html

I think people, including James in this comment thread, are making way too much hay out of the first amendment. It appears to me the published information in this case would be equivalent to sealed court testimony in the U.S which most certainly could not be published...sort of like the CIA agent identity business from earlier this year.

I suppose the response is that the Canadaians have erred in placing hte material under seal to begin with, which may well be. If so they are experencing a problem rift in our own legal system, espicially common in mult-level marketing scheme SLAPP suits.

Posted by: Bob | Apr 5, 2005 11:30:46 PM

I think people, including James in this comment thread, are making way too much hay out of the first amendment.

I'm afraid you're mixing apples and oranges. Data or testimony sealed under court order in the US is protected from disclosure, not dissemination. American reporters are leaked sensitive info all the time, and they don't get into trouble for writing a news item that includes the data. (As long as they weren't one of the people who were named in the court order.)

After the story is broken just about anyone in the US can talk about it, reference the original news item, or write what they like using the news item as a source. This is markedly different from what the Canadian government is doing, which is to threaten to arrest anyone linking to a blog authored by an American living in the US and using a server which is physically located in the United States.

The Canadians have no jurisdiction down here, we don't recognize their law which makes this activity illegal inside their own borders, and we think it's extremely silly when foreign governments try to claim that laws which violate our Constitution should be enforced.

So far as the Valerie Plame case (that's the CIA agent you were talking about), you should note that the reporter who wrote the story (Robert Novak) was never even threatened with jail. He wrote a story and that's it. The person who gave him the info about Plame might have violated the law, but Novak didn't.

Please also note that we're talking about Captain Ed, the American blogger living in the US and etc. There's no way that he could have broken the law by acquiring the data since he doesn't have access to secret Canadian hearings, and he didn't break any US laws by writing about what he was told.

James

Posted by: James R. Rummel | Apr 6, 2005 4:50:58 AM

Tim, terrific work. I am an Oz lawyer and I have posted on this because it makes my bood boil how disgraceful the Americans are being. Capt Ed posted with no regard for Canadian law. None. I believe he, and folks like James here, would do the same if Oz was the relevant country. No respect at all for the laws of another country. I reckon you are spot on - if you're gonna blog learn a little bit about international publishing - cos that what a blog is. Love to see Capt Ed get whacked. his has been the very epitomy of contempt of court. A Canadian court, that is.

Posted by: WB | Apr 7, 2005 2:27:52 AM

A national judge represents a national government and makes judgements based on the nation's laws. A national judge does not have the jurisdiction to utter international gag orders based on his or her nation's laws. This is true for Canada, the U.S., Britain, and Australia. The judges in any of these nations can issue gag orders, but the order ends at the nation's boundaries. According to your arguments, a national judge in Zimbabwe could issue a gag order, and it would either apply to all citizens of all nations everywhere, or any person in any nation who didn't voluntarily follow this gag order would be "disrespectful." National laws are just that, not international laws. And an American judge could issue a gag order that would not apply in Canada, Britain, and Australia. Claiming that people who do live in one nation and do not obey the laws of another nation is disrespectful is just ridiculous.

Posted by: Dawn | Apr 7, 2005 6:28:05 AM

Missing the point Dawn. The Canadian judge ordered the material from the hearing not to be disclosed in Canada. The American jackass sitting in America disclosed the material into Canada. The imbecile. Lord, what a mischaracterisation of what that American blogger did. You need to wake up, specially if you have a blog of your own.

Posted by: WB | Apr 7, 2005 10:14:54 AM

WB, have you even thought through the implications of what you're saying? What about Cuban law? Should I have to respect that? Should I risk jail for saying that Castro is the enemy of the Cuban people? What about Syrian law? If I say that I don't believe Islam is the greatest religion, should the UK government jail me because I'm breaking Saudi law?

Dawn wasn't missing the point; she was making it.

Posted by: Squander Two | Apr 7, 2005 1:35:35 PM

Umm, a quick look at Ashcraft v. Conoco, Inc. shows that dessimination of sealed materials by a third party journalist CAN BE considered contempt of court as long and the origial court order was valid AND the journalist showed sufficient "contumaciousness".

The journalist does NOT have to be named specifically, but contumaciousness I think implies sort of a willful disregard for the sealed nature.

I know that the Plame isn't a good example, I merely added the "sort of like" comparision because even though the reporters in question are not named parties or similar, they are not sheilded from contempt charges over protecting their sources. I was too lazy to fire up Lexis and pull a real 3rd party contempt case, so I just threw in a bad example. I wasn't trying to make more out of it than that.

Posted by: Bob | Apr 7, 2005 9:19:55 PM

Capt Ed posted with no regard for Canadian law.

Why do I have to continually point out that Capt. Ed is an American, living in the US, with his computer and hosting server located in the United States?

Where does Canadian law apply? Seems to me that it doesn't, which is the whole point.

I believe he, and folks like James here, would do the same if Oz was the relevant country.

You bet we would!

The American jackass sitting in America disclosed the material into Canada.

No, he didn't. And obviously so.

Capt. Ed didn't advertise in Canada, he didn't post anything on a Canadian server or website. He simply posted what he wanted on his own American blog, and then some Canadians typed in his URL and took a look.

So what do you think that the Canadian government can do to this American who was following some of the highest ideals that we have in our culture? Invade? (HA!)

....they are not sheilded from contempt charges over protecting their sources.

Very true, Bob, and I agree with everything that you said in your last comment. But you're confusing the issue. Shielding someone who committed a felony by refusing to divulge their identity is a crime, and reporters aren't protected under the 1st Amendment if they try. (Though many reporters will claim otherwise.) This is a very distinct issue from printing info that was given without any specific encouragement.

The subject at hand is the printing, which not only doesn't violate any US statute, but is actually protected by our highest laws.

James

Posted by: James R. Rummel | Apr 8, 2005 3:46:27 AM

In this particular case, there are wildly complex issues of internet jurisidiction in play, and frankly the case law is completely unsettled on the matter. Until Indymedia (among others) works itsself out it the courts, its pretty hard to tell how the internet jurisdictional issues play out for journalists. From the looks of it, the court order was weak, and frankly the Canadians don't care enough to actually press the issue anyway.

I wasn't trying to confuse this particularly situation as much as clearify what would happen here INSIDE the U.S. with similar sealed testimony. I had gotten the impression, apparently incorrectly, that James and others were implying that in america there is no such thing as a publication ban that would punish journalists not specifically named in a court order for merely publishing. (This was based on comments along the lines of...at least WE have a 1st amendment, etc) I've done a crappy job of making the point, but if a U.S. journalist is accidentally given a sealed court document (breaking no laws) and they publish it knowing it was intended to be sealed...they are fair game for a contempt charge.

A couple of parting legal thoughts:

A. Remember that in CIVIL cases, U.S. courts will often apply foreign laws and legal standards, so concivably there could be a CIVIL suit in a U.S. court to go after Capt. Ed.

B. Usually the internet is sort of considered a free-fire zone legally...off shore gambling, child porn, you name it usually is left alone by U.S. authorities. Not to mention complete legal oddities like allofmp3.com (I'm 3,000 words into a 8,000 word paper on russian mp3 legality), and the iTunes DRM stripping technology published in Norway to beat the U.S. DMCA.

C. The non-U.S. citizens have a point, we'd be pretty pissed off if habitually canadian bloggers were used to publish leaked U.S. court documents. Sooner or later, we'd pressure canada to do something.

Posted by: Bob | Apr 8, 2005 6:12:13 AM