Sunday, November 27, 2011

Freedom to Receive and Impart Information

The Internet is a publishing vehicle for the transmission of information and ideas to the World Wide Web. It isn't unusual that people will use the tools available to them in order to communicate or receive information.

The European Convention on Human Rights states "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." (Article 10, 1.)1

This is an open statement which does not preclude the type of publication or form the transmission of information and ideas assumes [takes]. It can be argued the Internet has no frontiers or boarders, only ones created by deliberate interference for purposes of good or ill. It would seem to deliberately interfere could be regarded as being in breach of this convention. 
[It is relevant to note that Australia though a signatory to the UN Declaration of Human rights which includes Article 1upon which the European convention is based only recognises this right in a limited form.
Australians have an implied right to freedom of speech on the basis of the UN Declaration but this comes with limitations being that this right is only recognised within the narrow ambit of political commentary. Known as: "Freedom of Political Communication".]

Within the ambit of a publishing an article to the Internet, any claim that the article might contain "defamatory" elements creates confusion in Australian law with regard to who is the publisher. Who can be blamed or held liable on the charge of defamation? The law is confused as to whether the ISP (Internet service provider), who hosts the content, is as much a "publisher" as the author uploading the content. So in Australia who transmits this content as well as who authored and uploaded the content to the Internet is jointly a "publisher". An ISP may host hundreds of thousands of sites, all with different content providers who perform their own uploads; these content providers "author" then "publish" content to the Internet. The basis for this confusion is likely due to the case of Godfrey v Demon Internet Limited2, in which anonymous comment, claimed to be false, was posted on a forum. As the originating author could not be established the court reasonably held the ISP responsible. However, to view all activities surrounding the actions of a known author as complicit in the claimed publication of false comment makes a mockery of this judgement. It is without logic to consider a Host Provider of a connection to infrastructure to be a publisher.

So who is ultimately the publisher? In the case above the author was not known so it was the ISP. As this ISP did not remove the content as it would cyclically self remove anyway, they became the target of the defamation action. In Australia an ISP needs no further warning than the demand to remove claimed defamatory content even if the author and publisher is clearly identified and identifiable. It does not matter here. Even a telco like Telstra will force the removal of the content though they cannot claim to be any more than a connectivity provider, an entity that merely provides connection/transmission to the internet (as happened in our case). A telecommunication provider connects an ISP to the web via the telecommunication infrastructure. With regard to the intent of Article 10, 1 forced removal by an ISP, of claimed - not proven - defamatory content is a true hindrance to the freedom to "...receive and impart information". However, cutting off a self hosting ISP author from the telecommunications infrastructure establishes a vastly different level of "interference" on a "public authority" scale.

Internationally, the publisher of online content is the uploader of the content. Above is a screenshot of Adobe's web publishing and authoring program, Contribute. It is described as "a powerful web publishing and website management tool that integrates authoring, reviewing, and publishing in an easy-to-use WYSIWYG HTML editor". Other html editors such as SeaMonkey, freely available on the internet, include a publishing component, that includes the means by which content can be uploaded, published, to the internet. Somehow Australia's techno-dazzeled legal fraternity disregard the international definition of "publisher". 

In the USA or Sweden for instance a court order must first be obtained, in most cases, before pages or sites are ripped from the World Wide Web. Australia Law fails to protect defendants of defamation claims where the internet is the form of publication and essentially is complicit in an act of censorship on a public scale. All of which is irrelevant to the substance of what is being transmitted being true or false. No hearing or submission of evidence is required, the demand is made and the claimed defamatory information, and more, is immediately suppressed.

Australian Law (a derivative of class defined English Common Law) in prosecuting argument for a defamation case holds the Internet in an unnecessarily separate light to other forms of publication. It basically does not understand the Internet (fears it perhaps?) and views it with suspicion. The Internet is the Gutenberg Printing Press of our time. The transmission of information in terms of its rate and timeliness is extraordinary but is it any different in effect? Information is imparted and received. This discriminating lack of understanding overly complicates the defence position when embroiled in persistent, unreasonable and deliberately damaging defamation action. 

Outside the defences for defamation, Truth, Duty to Inform and Fair Comment, a defendant must additionally justify (against what measure?) the transmission of the claimed Defamation over the World Wide Web. In the context of publishing one format is essentially as public as another, Internet or not. Because the Law misunderstands the Internet as being something other than another publication tool this aspect is then exploited as a weakness by plaintiffs to then be used to delay, suppress, or legally slow the process to trial causing higher and higher expense for a defendant. In the case of a defendant with less financial means than a plaintiff has this ability to legally harass with the aim to delay trial if not make it impossible to get to trial creates an imbalance for equivalent engagement in the legal system by both parties. Where truth is not a problem for the defence and where a  "...claimant is incapable of further defamation..."3 this tactic is utilised.

In Australia, unlike the EU, we do not have the right to freedom of expression as defined by the EU Convention nor a right to freedom of speech as enshrined by the US Constitution. Neither of these jurisdictions encourage or support a citizen's right to publish lies about another and there are stringent laws protecting an individual or entity with mechanisms and rights for the defence of their true fame. My co-defendant* calls this "natural fame". It is the fame one has developed and earned from their own actions and deeds. Publishing the "natural fame" of another is hardly defamation, the reputation earned and won by their actions has already affected the perceptions of others as to their character and person. Particularly if these actions and behaviours have had years of repetitious airing across countless public forums. The truth will confirm already held opinions rather than form them.

Defamation Laws favour the privileged with an interest in maintaining false reputation. The laws are wielded as a useful weapon against the less privileged whether by a corporate Goliath like McDonald's4 or a well off individual. Both have the financial means to manipulate process via intentional delay5 and censorship in order to affect an opponent's financial or motivational resolve before a complaint ever sees the inside of a court room

Apart from the freedom to do so truth is an essential component of any quest to receive or impart information. Truth is the responsibility of those imparting the information, in fact or by establishing grounds for honest opinion whilst ensuring the receiver has an interest in receiving the information and the freedom to check its validity. If a defendant can tick these boxes then they should simply hang on as "natural fame" will rise to the top.

1Article 10 of the European Convention on Human Rights
3Wikipedia on Defamation
5The Mickelberg Stitch

*Demetrios Vakras

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About Leeanneart

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Melbourne, Victoria, Australia
We are first and foremost human with a responsibility to the humanity within us and not to any faith, political, apolitical, social or societal group, union or faction. We are responsible for our own reputation, and for what deeds we do and what achievements or otherwise in life we enjoy. The rest is nonsense.