Lcr4805 - Selected Private and Criminal Law Princi (LCR4805)
Institution
University Of South Africa (Unisa)
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Lcr4805 - Selected Private and Criminal Law Princi (LCR4805)
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The internet
Private & Criminal
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Selected Private and Criminal Law
will help you pass LCR409.
Principles ofexactly
In fact, I make the Internet
the opposite representation: if you only use these notes to study, you
will probably fail.
Make sure that you only use these notes as a staring point.
Defamation and the Internet
Definition
Defamation is the intentional infringement of another person's right to his good name. In other
words, it is the wrongful, intentional publication of words or behaviour concerning another person
which has the effect of injuring his status, good name or reputation.
Certain elements must be present:
1. the act (publication of words or behaviour)
2. an injury to personality (the defamatory effect of the words or behaviour)
3. wrongfulness (the infringement of the personality right to a good name)
a. Defences: privilege, truth and public interest, fair comment
4. intention (animus iniuriandi)
a. Defences excluding fault: mistake, jest
5. a causal connection between the act and the injury to personality.
Defamation on the Internet in South Africa
National Media v Bogoshi:
● strict liability of the media: rejected as incompatible with freedom of expression; replaced by
liability based on negligence.
● court will have to evaluate the defamatory allegation in view of the objective reasonableness
of the publication
Three key questions i.t.o. law of defamation on the Internet is concerned:
1. When does publication occur?
2. Who is liable for the defamation?
3. Where does publication occur?
When does publication occur?
Publication: the objectionable statement or behaviour regarding the defamed person is made
known to at least one person other than the defamed individual.
As soon as the outsider becomes aware of the defamatory nature of the allegation or behaviour,
the publication requirement is fulfilled.
Who is liable for the defamation?
Once publication has taken place, plaintiff has to show that defendant was responsible for
publication.
Defendant will be accountable for defamation if he was aware or could reasonably have
expected that an outsider would gain knowledge of the alleged defamation.
Not only the person from whom the defamatory allegation originated, but every person who
repeats, confirms or draws attention to it would in principle be responsible for its publication.
Thus: not only the author of a defamatory message or a defamatory allegation in, for example
an online magazine, will be held liable, but also the editor, printer, publisher and owner of that
magazine.
There is a difference between an individual and the media in the degree of liability. Thus
distinction:
1. mass media: online newspapers and magazines and other online news services
, 2. not mass media: senders of email messages and participants in real-time chat groups
3. bulletin boards and newsgroups:
a. no editorial control is exercised: postings probably not regarded as “mass media”.
Authors of defamatory email messages liable are liable, but possibly also employers.
Employers can be held vicariously liable for delicts committed by employees in course and
scope of employment.
Whether employer will be held liable, will depend on surrounding circumstances. Important
factor: whether defamatory email was sufficiently connected to the employer's business or
whether the employee was on a so-called “ frolic of his own”
Liability of ISPs for defamatory content
Liability of ISPs: to a large extent dependent on their function and role in the publication
process and a distinction, based on their respective functions is generally made between:
● authors, editors and publishers of the material, where some form of editorial control is
usually exercised
● distributors linked to the distribution process such as hosts, and network and service
providers
● common carriers who serve merely as conduits in the transmission and routing process
(analogous to a post office or telephone company), for example, access providers and
possibly hosts, depending on their role in the publication process
Position in the USA
History:
Cubby Inc v Compuserve: Cubby: complained that it had been defamed in a newsletter on a
forum and instituted a claim for defamation against CompuServe.
Court held: CompuServe qualified as a distributor of information and could therefore only be
liable if they had knowledge or ought to have had knowledge of the offending material.
Lack of evidence that CompuServe had any knowledge of the defamatory statements and the
fact that it was not feasible for the ISP to check every publication for potentially defamatory
statements, the court held that the defendant was not liable.
Stratton Oakmont Inc et al v Prodigy Services Company: Court held: Prodigy, should be held
liable as a publisher, rather than a distributor, for information published on the defendant’s bulletin
boards.
Court argued that Prodigy was liable as a publisher of the defamatory content due to the
following:
1. Prodigy held itself out to the public and its members as controlling the content of its bulletin
board
2. Prodigy exerted editorial control over its content through the use of an automatic screening
software program and board leaders to enforce its content guidelines
Case was taken on appeal and overturned.
Current:
Lunney v Prodigy Services: ISPs could claim to be common carriers.
Liability of ISP was not decided by relying on the distinction between a publisher and a
distributor and the indemnity provided by section 230 of the CDA, but the court granted the ISP
the common-law privilege usually given to telephone and postal companies, namely, that of being
a mere conduit or common carrier.
Court decided that Prodigy was not a publisher of messages but, rather, a passive conduit for
the information, similar to a telephone company and, therefore, not liable.
In USA a distinction is drawn between primary and secondary publishers: in the case of a
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