HomeLocal NewsShould ISPs be liable for online defamation?

Should ISPs be liable for online defamation?

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Defamation occurs when there is a wrongful and intentional publication of a defamatory statement concerning another.

Generally, all parties involved in the publication of the defamatory statement can be held responsible for the defamation, for example, in the case of a newspaper, the author, the editor, the printer and the publisher can all be sued for defamation.

With the growing participation in Internet chat rooms and online forums, the potential for defamation has increased.

Internet users can easily create bogus profiles and make anonymous and unlimited defamatory postings regarding any person.

All of this takes place on websites and online forums hosted by Internet service providers (ISPs).

Providing access to the Internet and hosting websites and forums means that sometimes, responsibility for what happens on the Internet, particularly the posting of defamatory content, can be imputed on the ISPs.

All this brings into play complex questions to the otherwise well-established laws of defamation, namely: Can those who merely host content on behalf of others be held liable for the defamatory nature of such content and if so, to what extent?

Can an ISP be said to be the publisher or distributor of online defamatory content such that the ISP can be found liable for defamation?

These questions are, to the writer’s knowledge, yet to be explored and determined in Zimbabwe but while we wait for our courts and the legislature to resolve the questions, let us examine the position in other jurisdictions that have already dealt with the issue with a view to learn therefrom.

In the United States of America, the position from their telecommunications Act provides that no ISP shall be held to be a speaker or publisher of the content that it hosts thereby basically exonerating their ISPs from liability for online defamation.

It must be noted that this legislative position only came after a string of cases that had found some ISPs liable for online defamation.

The United Kingdom position is significantly different from the American position in that an ISP is held liable for the defamatory content that it hosts unless it can show that it took reasonable care to ensure that the defamatory material was not published and that once alerted to the presence of the defamatory material, it took steps to resolve the issue.

This law obviously places British-based ISPs in a burdensome position which led Yahoo, Facebook and AOL to write to David Cameron in November 2010 pleading with him to change the UK legal position on the matter. He responded by promising a new Defamation Bill in 2011 which Bill is yet to be published.

In Canada, the law acknowledges that ISPs are involved in the dissemination of defamatory material if a website they host contains such material and that this exposes such ISPs to liability for defamation.

What the law then goes on to say is that ISPs are merely involved in such dissemination in a purely mechanical way and can therefore plead innocent dissemination as a defence provided they were not aware of the defamatory content.

It is high time Zimbabwe begins to explore this legal grey area and as we do so, we need to realise that the Internet is unlike the print media.

The players involved cannot be equated by analogy, an ISP cannot be equated to a newspaper publisher or to a distributor.

What the ISPs simply do is enable their clients to access the Internet platform and thereafter, they do not and cannot monitor all the content that is uploaded onto their client’s websites or forums and neither do they have say or control over what can and cannot be posted on the websites they host.

By analogy, ISPs are more like producers of paper upon which defamatory material may end up being printed and we certainly do not sue Mutare Board and Paper Mills should their newsprint end up bearing defamatory content.

To ask ISPs to monitor, moderate and filter the content they host is to essentially ask them to play judge and jury over such content, it is asking them to determine whether each statement is defamatory or not, whether each statement is fair comment or is in the public interest or whether each statement is true or not, and to delete what content they may deem defamatory in order to protect themselves from a potential defamation suit.

For obvious reasons, such a position is unrealistic, improper and untenable.

It is therefore suggested that our law should take the Canadian position expounded above herein. In any event, we need rules, guidelines and solutions to be identified soon to create certainty on the responsibilities and liabilities, if any, that the ISPs carry with respect to online defamation.

Sharon Bwanya is a corporate lawyer with Mawere and Sibanda Legal Practitioners and has post-graduate expertise in information, communication and technology law

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