Workbook on Digital Private Papers > Legal issues > Defamation
Defamation
Defamation and digital archives
Defamation on the Internet - cyberlibel
Cyberlibel describes any defamation that takes place on the Internet whether the defamation took place on a weblog, website, email, message board or in a published article accessible online. Cyberlibel raises the issue of freedom of speech and the degree to which individuals can be prevented from expressing their opinion on public or private individuals or a business or organisation.
The early history of the Internet was characterised by a sense of freedom from censorship and rules and many still see the Internet as is a unique medium for free speech.
Cyberlibel legal jurisdiction
One of the trickiest aspects of enforcing laws on the Internet is determining whose laws apply: in which legal jurisdiction did the offence take place? After all, what may be libellous in some countries may not be in others.
There are two options for a court: the offence may be deemed to have taken place in the country where the information was uploaded or in the country/countries where the information was accessed. In the case of defamation, the latter course is generally chosen. This means that defamation cases are subject to numerous different legal jurisdictions across the globe, although in practice, multiple cases are unlikely to be made.
Impact of cyberlibel on access to digital archives
The risk of cyberlibel may impact on the ability of archival repositories to make personal digital archives available to the public on the Internet or via email. Should a personal archive made available in this way be found to contain statements that are interpreted as libellous, then the repository could find itself subject to a lawsuit. Data protection legislation also impedes this kind of transmission of archives containing personal information on living and identifiable individuals, and copyright would require that the repository have the permission of rightsholders. These considerations all suggest that it is safer to provide controlled, meditated, access to archives relating to living individuals. At present, Paradigm recommends that such archives be made available in a supervised research room to accredited readers who understand their responsibilities.
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.
Chat, emails and defamation
The informal, spontaneous nature of chat and emails, and their rapid transmission, increases the likelihood of ill-considered opinions, which are not always grounded in fact, and which may be defamatory. The digital archivist needs to exercise caution before providing access to such material.
Liability for defamatory content sent by an individual in the course of their professional and personal life will be influenced by the nature of the message. For example, a message sent by one individual to another at a private address would be deemed less liable than one sent to a business address with many cc addresses or a message sent to a listserv or forum. The huge volume of Internet traffic makes it unlikely that any one given message will be intercepted and that, for the purpose of the law, a message sent from one private address to another is no more likely to be intercepted than a conventional letter. (See sections 5.06-5.08 in Matthew Collins, The Law of Defamation and Internet).
Once correspondence is accessioned into a digital archive such categories will not hold sway. All messages which are made available will be treated in the same way regardless of whether the original author intended the original recipient to be the sole reader of their missive.
In the context of a digital email archive, the archivist needs to be aware of both forms of defamation: libel and slander. Typically written defamation, libel may also take the form of other media which fix and publish the statement, such as image and film. Slander is a more transient form of defamation and usually includes speech or gesture. Although chat and email archives are mostly written materials (with the exceptions of image, sound or movie files attached to a message), it is possible that defamatory content in them could be repeated verbally which would lend to the possibility of a slander action against the repeater and a libel action against the library as a publisher.
Where do digital archivists fit in?
Can digital archivists argue that they are not authors, editors or commercial publishers of a statement? It is true that archivists do not seem to fall into any of these categories. Yet digital archivists do have a great deal of control over the material in their care. Unlike an ISP service provider, content is generally not made accessible to the public until many decades after it is received. Therefore the digital archivist has ample opportunity to exercise 'reasonable care' and review archive material before it is made available.
Under DPA legislation, archivists also need to check for sensitive personal data and anything which contravenes the Human Rights Act Article 8 - Right to Respect for Private and Family Life; archivists must also survey the Intellectual Property Rights associated with a collection. It would be common sense to conduct any such review with an eye to potentially libellous statements. The difficulty will lie in statements which are not obviously libellous, and may on the face of it appear innocuous to the reviewing archivist. In such circumstances the repository may be able to claim that it has taken reasonable care in relation to publication and make a defence of innocent dissemination.
