Blog and be damned

(This article was originally published in the Technology Supplement of the Sunday Times of Malta in December 2009)

The proliferation of freely available tools which allows everyone who is connected to the Internet to become an actual participant and not just a passive reader has brought along various legal challenges in the way we look at slander, libel and defamation. The rise of web2.0 technologies means that everyone connected to the grid can become an author, a commentator, a virtual protester or simply a twitter user or blogger.

Traditionally, libel has been regulated under the Press Act which, amongst other matters, lays down that any person who commits libel against others by means of the publication or distribution in Malta of printed matter, from whatsoever place such matter may originate, or by means of any broadcast shall be guilty of an offence under the Press Act. Tradition also has it that any recourse to the Press Act is normally the result of somebody writing something nasty on someone in the papers. This, however, is changing quite rapidly and such phenomenon is automatically creating challenges to our accepted legal notions of libel.

Amongst the challenges we see to our present Press Act is the fact that the law talks about printed matter but should online publications be considered as such? The definition of 'printed matter' under the Press Act also includes "any record, tape, film or other means whereby words or visual images may be heard, perceived or reproduced". Certainly, whilst the internet is not featured as such in our law relating to libel, it is clear that the legislator's intention is to also include online publications, in whatever form they may be under the scope of the Press Act. Call that technology neutrality! A simple modernisation of the word of the law relating to libel might not do that much harm.

The UK government has recently published proposals to re-hash their libel laws to make them more internet-friendly especially a revision of their 'multiple publication rule'. Under present UK law, online publishers can face new legal proceedings within a year from when each article is accessed or read irrespective of the fact that the same article would have been on the internet waves for many years.

An important aspect when considering online liability for defamation and libel is the way such information was posted online and whether third parties are also to blame. Editorial control is paramount not only in the 'printed' press but also in the online world. Whilst editorial control can be easily established vis-à-vis hard (as in printed) material, the situation might look a bit more confusing when we are talking about the Internet. If an online website sieves through the comments posted on their site before actually putting them online, editorial control is present and therefore the person controlling that site might also be in trouble.

In July the UK High Court established that Google could not be found liable for defamatory comments found in its search results stating that the company only facilitates access to the information but can never be deemed to be a publisher. Google was therefore acting as a 'mere conduit', a phrase which has become quite a household term, especially if one looks at our laws relating to ISP liability as contained in our Electronic Commerce Act and the EU Directives from where it derives. However, if an online service provider is playing an active role and has control over the information that users post which might be considered defamatory, the operator may not be as protected under the 'mere conduit' principle. The increase in libel suits filed against the editors of local online news portals is a clear example of how libel rules are slowly catching up with the internet generation.

Apart from the real authors of posts or comments as well as the editors of such sites, other individuals in the technological chain might also be in the firing line. The same libel rules therefore should also apply to bloggers who allow other people to reply to their blogs. Some commentators still question whether posts on twitter and facebook, (which are normally read only by people or followers who subscribe to your feeds) and not really 'published' to the whole world should be considered publishing. The US is already experiencing an increase in libel suits against such posts and I am sure that we will soon be reading of such cases in the local press.

The Internet makes it easier for someone to remain anonymous. This might be seen by some as an intriguing option: hide your name and you can say whatever you want. The real situation however is that even though technology nowadays allows you to remain anonymous, other technology exists which can simply lift that veil and let the law catch up with you. A proportional increase in libel cases is surely to be experienced in the not so distant future so think twice before posting nasty things about your neighbour, wherever you are.