Readers' Comments

Reader Comments on Aardvark Daily 12 December 2002
Note: the comments below are the unabridged submissions of readers and do
not necessarily reflect the opinions of the publisher.
From: John Elsbury
For : The Editor (for publication)
Subj: Online publishing

"The bottom line is that, unlike a newspaper, magazine or
other physical publication, a webpage and its contents are
deemed to be "published" in any country from which it can
be read."

This seems logical and reasonable.  Let's say, twenty years
ago, I penned a libellous story about somebody, got a
printer to run off 100 copies, then went round sticking
them up on billboards.  Now, where did the act of
publication occur?  I don't think a court would rule that
it was published when I wrote it, or when I handed it to
the printer:  and I don't think the court would have held
the printer liable either, he was after all only fulfilling
a private order and didn't care about the contents.  I am
the person that published it and, if I had got onto a boat
and posted a copy up in London, Paris, Singapore, Berlin,
and so on then in theory the libelled party would be able
to sue me in each jurisdiction.  This would probably be a
waste of time, though, as extradition treaties don't
usually cover actions in respect of civil wrongs.

If, on the other hand, the Times was dumb enough to publish
it then although it might be legally possible to sue them
in each jurisdiction in which the newspaper was sold, it
would make far more sense to sue them at their registered
office.  If they maintained separate presses and editorial
offices in multiple jurisdictions, then an injured party
would be entitled to sue each one whicj published my libel -
 in fact, being rational, a plaintiff would go for the
jurisdiction which had the best history of awarding huge
amounts in penal damages..

There is a presumption that publication implies that
somebody will read it, but I don't think that the act of
reading is in itself actionable or even necessary for a
libel action to succeed:  I guess the extent of the
readership, and the probability that the item complained of
would be read and believed, have more to do with the
quantum of damages.

I know the Internet is different (and how!) but, if we
follow the analogy above, the web site in which I put the
information is my printer and billboard and, because I
(being rational and not reckless) intend the information to
be available everywhere, I am the publisher.   The
actionable activity would logically start at the time I
place the information there and, every time somebody
retrieved it, the publication would occur when the item is
displayed on the screen of their computer.  Wherever they
may be.

So long as the courts don't attempt to hold the hosting
service responsible for the content, I see no problem with
that.   Following the above analogy, though, if an injured
party sought an injunction then they could get the Times to
stop selling, or the printer to stop printing, copies of my
libellous article: in the same way, I would expect the ISP
to take my site down if legally asked to do so by a court
order (injunction) *effective in the jurisdiction in which
the ISP is physically located*.





From: Dominic
For : The Editor (for publication)
Subj: The net is not the same!

Aardvark, feel free to amend this post if you see it
necassary. For purposes of trying to be technically
accurate, I have abstained from using the
word "publication".

I feel very strongly about the Australian court ruling and
I wish to fight for a democratic development in what is a
relevant issue. I feel the ruling is improper.

A newspaper is owned and controlled in the country of its
viewing. The author of the article resides in the *same*
country as that which the paper is viewed.

Technically and maybe even politically, Mr Gutnick's
statement could be (successfully) argued: When I publish a
newspaper I make a *conscious* and *deliberate* effort to
ensure the paper is available (able to be picked up) in a
particular place and *noticed* (dairy corner stands). This
isn't necassarily so with a web site. With a web site, I am
not forcing my pages to go into the country of viewing and
I don't necassarily force people to look at it. Also, I
don't control (unless I program my web server) which
country my web page goes into. This is just one technical
and practical difference between the Net and a newspaper.

In the Internet context, Dow Jones can be argued as being
correct about one point: country of authoring and
availability is the USA. It is the USA where the web page
was *acquired* and *viewing* (display of content on the
computer screen) took place in Australia. The speed of
communications technology makes it seem like the Web page
is stored in the country of viewing. In the case of the Dow
Jones web site, the web page was not stored in Australia.
Dow Jones does not force viewing of its web site in
Australia.

I think the term "access" and "publication" where the Net
is concerned needs proper definition. Present legislation
is clearly not operating in an Internet context. And on
this basis, I feel the Australian ruling is unfair.

I treat the actions of the Australian court putting
pressure on Governments to devise an international treaty
for Web publishing. And maybe such pressure is (over)due.

I'd like to think that the same sensible, consultative,
intelligent (altogether 'democratic') process employed for
present say legislation development and design takes place
for laws where (use of) the Internet is concerned.

And I believe the judges in Australia would find some
agreement with that.

I'm not a lawyer but I know many!
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