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4:54:11 

Monday, December 11, 2017

Web Publishing: What should you not say?
June, 1997


To many people, including myself, the "internet" convey an image of a "space" that is independent and isolated from the reality. The prospect of roaming freely in this space evokes a sense of excitement, power and enthusiasm that is unparalleled to any thing else. The feeling is I can do anything!

The positive feeling associated with this apparent freedom is great and is definitely a virtue of the internet medium. The danger arises if this "freedom" imagery is carried too far.

Terms like the "net", virtual reality, cyberspace contribute to a highly superfluous metaphor that creates an impression that the internet is somehow lawless. The fact is that the law governing real life applied equally on the internet. (Of course, the application of existing law on the internet is not without its problems, but that is beside the point.)

It is just so easy to publish on the internet with the advent of the World Wide Web (WWW). The ease to learn and use Hyper Text Markup Language (HTML) makes it exceptionally simple to put one's idea, opinion, comment online. This is not to mention the plethora of programs available to assist you to publish online, from the simple HTML editor (eg. HTML Editor) to the professional HTML document creator (eg. PageMill, Netscape Gold).

The ability to create professional looking product makes web publishing very addictive (I know I am!). In encouraging people to voice out themselves this is a good thing. However, the ease of publication tends to undermine the need to be careful.

As I have said the net is not lawless. In a previous article I have looked at the copyright related issues. In this I will look at the question: what should not be said on the net?

Before the more specific rules are looked at the notion of free speech need to be clarified.

Free Speech

Most of us would understand the term free speech as signifying the right to say anything and at anytime we want to. This is a right that we treasure in our democratic society. At the same time, of course, we understand that there is a limit on what we can say or when not to say something. Often this comes about through our sense of morality or just social politeness.

On the internet the situation is the same.

However, strangely enough, the notion of free speech has a tendency to take on a very different meaning online. I stressed the word free because this is at the centre of the problem. Many people somehow attach a great deal of significance to the word "free": they think they can do absolutely anything they want, there is no limits and no one to stop them. The latter point is true to some extend: enforcement is a recognised problem on the net. Indeed, this is probably a cause of the misconception.

There is nothing `free' about speech online. The financially conscious type would immediately point out that it takes money to exercise this right online (ie. the cost of a local phone call, an ISP account or BBS account, the computer and modem equipment). The cost is not exactly nil, and could well be rather steep for the less well endowed out there.

Importantly this so called freedom is subjected to a tacit limit. Apart from the social convention that impose restriction on what can or should be said online, and in real life for that matter, there are legal rules that set up such limit. The consequence for infringement here could be serious.

Defamation

Most people have heard of defamation. It is often associated with the rich and famous people who is being sued, or more likely suing someone for some huge sum of money. The consequence of being sued are costly (even if you win).

Now remember that defamation also applies on the net. Surprisingly, defamatory remark is rather common online. Just look at all those flaming that is going on!

What is Defamation?

A full consideration of the law of defamation is obviously inappropriate here. Suffice to say that it is complicated.

So far as web page is concern, any defamatory material on it would be regarded as a "libel". Libel has an enduring quality. Clearly, a web page has such a quality. This is contrary to "slander" which is a defamatory remark that is transitory.

Defamation prevents publication of material that "tends to injure the personal, professional, trade or business reputation of an individual or a company, to expose them to ridicule or to cause people to avoid them." Thus, the essence of a defamation action is damage to reputation, it is not concern with whether the publication was untrue or that it infringes the privacy of the person concern.

So one simple guide is to avoid statements, or any contents such as graphics or otherwise, that may damage the reputation of others. For those who like a bit more detail read on (but be warned, the following may get a bit boring for the non-technically minded).

The Elements of Defamation

Steps to determine whether the web content is defamatory:

  1. Are there any imputation(s) arising from the content of the web page?
    This imputation could arise from the "natural and ordinary meaning" of the words or contents used. It may arise directly from, or, as an inference of the words used or images displayed. It may also arise as a result of an innuendo when the statements or contents are viewed in light of facts known only to some people. Eg. an artificial picture created by combining or altering multiple images could raise such an imputation.
  2. Did the imputation(s) satisfy the definition of defamatory material?
    Defamatory material is those that "tends to injure the personal, professional, trade or business reputation of an individual or a company, to expose them to ridicule or to cause people to avoid them." In other words, it damages that person reputation. While it is not really concern with the truth or falsity of the statement, a false statement (especially if the person knows it is false or does not belief in its truthfulness) tends to evince a statement that is defamatory.
  3. Finally, are the defamatory imputations "of and concerning" the person?
    This is basically a restriction on who is eligible to bring the defamation action (technically, a "standing" requirement). A person (including corporation) can sue if the material is capable of leading others acquainted with the person to believe that he or she was the person referred to. That is the person must somehow be identified or associated with the imputations.
    Notice, it is sufficient that the imputation refers to a class of people covering the person concern- the person need not be named.
    In cyberspace identifying a person or company by their email, internet address, or perhaps even their alias (especially if it is unique or relatively well-known online) would probably be sufficient.

Caution Urged.

On a practical note, while the law in theory applied to the net, the application or enforceability of it is another question. It is often not entirely clear what law applies in each situation: the law of which State or country? Given that no two States in Australia share the same law of defamation (though there is a high degree of similarity), the chance that a person in NSW can successfully sue a person in Vic, for example, is not definite. Then the international nature of the net only adds another layer to this problem.

Despite the potential enforcement problem, this should NOT be taken to mean that defamation is OK, or, that there is no need to be concerned about it.

Modern technologies make it just too easy to make defamatory material available to lots and lots of people. The ease with which ideas, opinions, images, or, indeed any information can be created and published on the web (or on newsgroup discussion for that matter) and transmitted across the world in an instant make the internet an attractive and simple medium to publish in. This ease also makes it very easy to publish defamatory material whether it is deliberate or by accident.

The problem is that this electronic medium is so transparent- it cannot be readily touched or be seen- that people do not realise the impact of what they do online. A defamatory remark on a web page for instance is less "obvious" that an equivalent defamatory remark published on a newspaper. Yet the reality is that the online remark is potentially more damaging because it reaches more people and at a faster rate.

As an aside the situation is worst in the more instantaneous channels like email and newsgroup, where it is not uncommon to for people to send emotionally driven messages, often without much thought of what they are really saying, whether they mean it. Nor do they care about the potential consequence. As people become more internet literate defamation action will rise: just make sure you are not at the receiving end of the defamation action.

Further, because what you said on the web is fixed, the alleged defamatory statement can readily be proved.

This plus the increasingly litigious nature of our community (if America is any guide) makes it is wise to be cautious when designing web page (or writing email, or participating in newsgroup for that matter). Remember: it is very easy to publish material that is defamatory on the net.

The above covers the position of an individual (person) only. Quite different issues arise when the defendant is a company or an organisation (eg. a BBS like ClubMac). Briefly, if the US position is applicable in Australia, then it would be safe to say that such an organisation would not be held liable for any defamatory material placed by its members on the member's web page where the organisation did not hold itself out to be responsible for the content, nor has it any editorial control or claim any monitoring over the nature or standard of the content.

Privacy

People value their privacy. Sadly though, as with most rights that people cherish, it is often taken for granted until it is taken away or severely cut down.

As a minimum people like the right to be left alone; but privacy is actually something more than that. It also includes the right, according to Ann Cavoukian, the Ontario Privacy Commission, to control "the extent to which we are known to others, the extent to which others have physical access to us, and the extent to which we are the subject of others' attention."

The following guide is based entirely on personal belief. Legally, a big question mark hangs over the privacy issue online. Even in real life privacy protection is virtually non-existent in Australia except the limited protection available in relation to government agencies.

For those who is interested in knowing more about privacy issues and any latest development, a good source is the Electronic Frontier Foundation (EFF). The EFF (the US web address is http://www.eff.org; the Australian web address is http://www.efa.org.au) was founded in 1990 to address conflicts and problems that arise with the free flow of information on the electronic medium. In particular, it aims to protect civil liberty online.

In brief, I think it is good ethic to: be mindful of the privacy of your own information and respect the privacy of others.

Your Privacy

That is do not disclose information about yourself if you are uncomfortable disclosing the same information in a newspaper, or, perhaps a better analogy is on a poster on every telegraph pole on every street in Australia and overseas (well, for those countries that have telegraph pole!). The point is that the internet is a "public" place (despite that it is one you often need to pay to have access to); anything that is put on it is potentially available to just about anyone else in the world.

It often shock me the amount of information people disclose about themselves on their homepage. Unless you are the sort of person that don't mind your birthday known by everyone in the world, don't put it on your homepage. You may not mind other people knowing your birthday; but remember that this constitutes a grave security risk. Birthday is often used as a mean of verifying your identity in many daily transactions; and many people do use it as their password or pin number (though this is never advisable).

Further, the more information that is available about you the more easy it is for someone (government and organisation) to form a dossier or profile about YOU through data matching. This is not science fiction; it is fact. I am not saying that this is happening, but it is wise to be mindful in this information era.

Privacy of Others

If you care about your privacy you would like other to respect yours. The same goes for other people's privacy. This is good netiquitte.

It is a common myth that all information on the net is in the public domain. It is not; and should not. Quit apart for copyright or other rights associated with bits of information, certain information belongs to people as a matter of ethics. What information are these?

A good guide is to put yourself in the shoe of the other person, and ask yourself this question: How would you feel if the information is disclose by others? Or if the information is already available online, how would you feel if another person repeats it on their web page? (Of course, this is assuming that your attitude towards privacy is not idiosyncratic!)

Giving of Advice

Can I give advise on me web page? Of course you can. The giving of advice or opinions is one thing that makes web page more interesting and makes it uniquely yours. This also encourages the free flow of information online.

As always there are things that you should watch out for:

  1. The advise or opinions should not be defamatory;
  2. Try to make sure that it is not misleading or deceptive;
  3. There may be need for licence;
  4. Respect for others privacy.

Not Misleading or Deceptive

This is essentially good ethics. And it makes your web page more valuable as an information resource.

The placing of misleading or deceptive material on your web page is also likely to get you into trouble from the law. There are array of laws that prohibit the giving of misleading or deceptive information. To attempt a complete coverage of the legal minefield in this area is impossible here. I attempt to summarise (very crudely, and I apologise for the non specific and somewhat aggregated treatment here) the important points to note are:

1. In general, if you are not carrying on a business on the net (eg. not trying to sell anything), then you are in a safer position concerning misleading or deceptive materials (insofar that it is not defamatory of course). However, don't think that you are safe just because you think you are not carrying on a business. The problem is that whether you are carrying on business, or in a business to sell something or give some advise, is open to interpretation. It is not what you think.

2. Do not place things on your web page that could be construed in such a way that a reasonable person would consider misleading. For example, in the context of shares, a reasonable person is the average person who is about to make a decision whether to buy or sell shares.

3. The mere repetition of rumour or "hot tip" may be adequate to land you in trouble. This is particularly true in relation to shares.

4. Validity of Disclaimer. Some people give disclaimer on the net denouncing liability. Well, this is a safe precaution, but legally this does not guarantee some sort of immunity. It may offer some protection but more often than not, it probably would be regarded as useless. Just about the only circumstance where a disclaimer has a chance of success is where it is clear from the circumstance that the person is not the source of information and that the person expressly or impliedly disclaimed any belief in its truth and that he is merely relaying the message.

Logic would have it that if you expressly claimed that the information is your own, and/ or if it includes a disclaimer to the effect that you do not belief in its truth or falsity, then it is arguable that the material cannot be misleading. Although whether this is legally valid is a moot point.

Licence

This is particularly the case in relation to the rather common practice of giving advice on shares.

Under Australian Law dealers and investment advisers are required to hold dealers and investment licence respectively. Although the position is not entirely clear, the person would probably need to be licensed where the person setting up the pages are in the business of giving investment advice and/ or inducing another to buy or sell shares.

Be Creative, Contribute But Be Careful

Please do not let these legal and ethical constraints discourage you from airing your valuable opinions, advises, experience online. Your contribution can only make the intern a much richer as a source of information; without individual contribution the internet would be an empty "super highway".

Just be aware of the legal and ethical boundary and act cautiously. It is important to act very cautiously on a new medium like the internet because the rules are unclear. Ok some people take advantage of such uncertainty to exploit loopholes and make some opportunistic gain. Although as responsible `netizen' (ie. citizen of the internet), we should not do that.

Note: The information contained in this article is accurate to the best of my ability. This article is not intended as a legal advice. If you are in doubt you should seek advise from a qualified legal representative.


 

 

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