Workbook on Digital Private Papers > Legal Issues > Defamation
How does defamation affect the timing and conditions of access?
Digital archives have the potential to be easily and rapidly disseminated, discovered and read by large numbers of people over a short period of time. This means that libellous statements, which would remain hidden in unpublished sources such as manuscripts, could find a much wider audience and a libel suit against the library could follow. While archivists might wish to exploit the functionality of born-digital material to provide enhanced access to users, perhaps through (secure) online access or facilitating use of the archive on a reader's laptop (where they have their preferred tools), the reality is that read and write access must be stringently controlled. Given the complex data protection, privacy, defamation and intellectual property rights issues involved it is unlikely that entire digital archives can be made available over the Internet until such a time as the publication of their contents will no longer breach these protections, either because they have expired or because those entitled to the relevant protections have given the library permission to publish. It may also be the case that some parts of the archive become available sooner than others. This is because the length of a legal protection period is calculated from the date of creation, publication or death, hence access will be calculated on a file by file basis. Access will also depend upon the ease of obtaining relevant permissions as it may be less problematic to seek permission from some interested parties than others.
A possible exception could be an Archive making a collection of archived website snapshots available over the Internet to registered users who had digitally signed a condition of use form. If the defamatory material has been in the public arena for some time prior to accessioning, the likelihood of a defamation case against the Archive succeeding is diminished. The Archive would, however, need the permission of intellectual property rights owners to publish snapshots of websites in this way.
Approaches to access
There are several approaches to providing access to digital archives.
Lengthy blanket closure periods
Providing access to material enjoying legal protections can be complex. For materials which are not covered by Freedom of Information legislation, it would be easier, safer and cheaper to issue lengthy blanket closure periods until intellectual property right, data protection and defamation considerations have expired.
Archival review - incremental access as concerns expire
Given that the preservation of personal archives is ultimately with a view to providing access for researchers, a more preferable approach would be to review materials and allocate appropriate closure periods at a more granular level. This would enable archivists to provide access only to material where rights are clear and uses have been authorised, and where content has been vetted for any potential personal or defamatory content. This approach is expensive and can lead (initially, at least) to highly restrictive access; it also removes part of the archive from circulation, which has an impact on the context and interpretation of the materials.
Risk management - archival review plus 'take down' policy
Perhaps a better option is one of risk management, combining the archival review with a 'take down' approach. By adopting a clear 'take down' policy and procedure which ensures that objectionable material can be promptly removed from public access, libraries could more confidently provide access to materials of orphan copyright as well as to material which has no obvious defamatory or private content.
Take down policy only
The non-profit Internet Archive in San Francisco, which harvests and archives websites without first obtaining permission from the creator, is an advocate of this approach. Its take down policy is primarily aimed at those who do not want their websites harvested but it also has a procedure for dealing for managing removal requests, including those which allege defamatory content. This approach is unsuitable for personal archives.
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Disclaimer: the guidance given in the Paradigm workbook is not legal advice. Legal advice from a solicitor with expertise in the appropriate field should be sought before taking action in relation to specific matters.
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