“Malice” is a poor choice of words. When you’re talking about defemation. “malice” doesn’t refer to whether someone had a grudge against you. Legally —- when decribing defamation — it means that they knew, or had a resonable suspicion, that wht they said or printed about you was not true.

So when you’re dealing with defamation, you always have to rephrase the word malice as: they lied, or knew they were repeating a lie, or at least suspected they were repeating a lie.
You don’t have to prove malice to win a lawsuite for defemation — though it help. On the other hand, proving malice can definitely help win a defamation lawsuite, even if there was no falsehood. Remember: injury to a person or organization’s reputation.

AH,

It is presumed that every defamatory statement is FALSE, in our law. If the maker can prove it rue then that is a complete defence, whether or not there was malice.

@ Themis // August 25, 2009 at 7:23 AM

Agreed. However, defamation on the blogs is usually intentional. The case you cite is one I would have touched on in suggested guidelines later. For this time, I sought to give a fast and easy principal that would encourage contributors to NOT be intimidated. I think one does that by sweetening the pill if, unlike you, with homour. We are dealing with non-legal people (or at least legally very clued people).

Another area, probably deserving of a complete article by Chris Halsall (for whom I have the greatest respect) is on how to avoid being tracked – how to protect one’s anonymity. This is also VITALLY IMPORTANT. The Bogs and in particular one like BU that raises matters of NATIONAL importance and opens its forum for comments on these (in other words reports on matters not reported on by a delinquent (or muzzled) National press) needs to know all its options, not just the existing or upcoming law.

You might have noted that comments on public importance or interest are extremely difficult to prove libel on, absent malice.

Also, such a report from Chris gives people in regimes that hide and supress the truth as a public policy, the chance to continue to expose human rights abuses. It is, in a larger sense, about countries that embrace human right abuses and lack of freedom of speech.

So, yes, you are absoutely right in what you say – as was I correct in the absence of malice factor.

Dave, fight the *astards who would extinguish free speech, to the death – and we’ll back u, at least morally, all the way!!

Anon,

You should note that the libel/slander distinction has been abolished by the 1996 Defamation Act. The action is now one for defamation.

De nada, ROK.

Hi Bonny and J, thank u for everyting!! Suh teken-up wid dis court-action bisniss I forgot to say hi!! Have a nice day, man!!

De girls on this site ain’ easy at all… and dey seem tah like 199. Bro I hope that they don’ see you as old and harmless ’cause that would be a serious error.. a’ite..?

@ David,
Time for me to get out of this thread; the political accusations have started, and I really do not have the time for such trivia.

@Anon
“However, the status of blogs and the “blogger” is not really all that determined in terms of who has published the defamatory remarks.”

While I agree with you in terms of the use of the word “determined” (so I am not going to argue the point), do you see any parallels in terms of the use of the internet?

The other thing I would ask you is what is the legal definition of publishing? What constitutes publishing?

BAF, what do u think of dah likkle beauty at d top day, Rosemary!! Bet ud love to tek her home, would n’t u?!!

BAFBFP // August 25, 2009 at 8:32 AM

So Davis is both the editor and the publisher. Clear as day..!
————————————————–
Must be a rainy/cloudy day in you neck of the woods.

Not the publisher, wordpress is, not the author of the comments. Editor is questionable, yes he does have editorial licence for this space. Yet the burden of proof is required that…..

(i) he knew or had reason to believe that the statement was
defamatory of that person; and

(ii) he had no reasonable grounds for believing that the statement
could be justified or was otherwise excusable.

@AH

““publisher” means any person whose business is issuing material to the public, or a section of the public, and who publishes the statement in the course of that business.”

Thanks AH.

You see, part of the key word here in establishing the ground on which BU stands is the word “business”. When we add control (for example, editing and determination of content), BU is on solid footing.

The only thing that BU could be said to have published is the article David put up for discussion (even if coming as a submission from a commenter) and not the discussion itself; except what David would have contributed to the discussion himself.

Everything else is the responsibility of the writer or poster or commenter. Guide me if I am wrong but my understanding is that the action against google was for the release of the name and not the defamation. Why? I would say it is consistent with the fact that google does not control content but merely provides a platform.

Those who write on blogs do so with the intention of publishing and they step up their liberal use of defamatory remarks because of a perception of anonymity, which to my mind does not protect the poster.

The only thin line upon which David walks is the ability to remove offensive posts, but even if he were to remove it in 10 or less seconds after being posted, the damage is already done, even if nobody besides the victim reads it.

In such a case, there may be some mitigation but would that be enough, considering that within the 10 seconds thousands of people could have read it and even though removed, readers who got it in their mail would still have it and would be in a position to read it several hours or days after. For those who may have it on their screen only it will not move until they refresh their page.

Themis // August 25, 2009 at 8:31 AM

Typical. “Play by my rules or I will take my bat and ball away and go home.”

This is an issue in development that can impact the freedom of speech of all. Have you even read the links David has posted?

We stand a chance of having a bit of input into protecting our rights of freedom of speech and expression (through the blogs) and those of our brothers and sisters worldwide and of ensuring that bloggers can have their anonymity protected so as, in some countries, not to be marched out of their homes and put against a wall and shot – and as everyone knows full well, I am not overstating here. And all you can focus on is a comment on a political party and suggest that the thread be terminated? Please!

What constitutes publishing? The answer in Internet terms is by no means clear – at least to me.

The cases that David has linked to seem to me to be about a blog set up specifically for the purposes of defaming a person or persons by the blog owner who was him/her -self the author of the libels.

Internet anonymity has been ordered to be breached by the US courts in such a manner as to cause prominent comment in a major British newspaper. This is a sort of notice of impending international defamation laws enforceable against people using the Internet for purposes of defamation. I was interested to see the remarks of the columnist in the links. That they come from a major newspaper and a major reporter does not mean that we, in our humble way, cannot put in our two cents worth. In fact, BU having brought this issue to light means that we can and that we do not need journalistic credits or a major newspaper to ensure that we are heard.

If David is to be believed, we are a pretty bright lot and we don’t know who might read our views and be impressed (or disgusted – does it really matter) by them. Is Thompy listening – I would bet he is. And how do we know that Barack isn’t reading our comments as well? Who knows that the international law makers might not be swayed by some of our views?

Frankly, if we wrote letters to the press, would they be published? Likely not. If we wrote to Thompy or Barack, would they be available to others to read and consider our views? And comment on the letters in a meaningful way?

Do we want to protect this and the blog that provides us with this opportunity? Well, I can only speak for myself. And I definitely want to protect both.

BAFBFP // August 25, 2009 at 9:34 AM

@ Tall_boy

Seems to me that if I am renting a space in a shopping mall and blamed by a customer for injury in some way that the charrge would be mine to answer to and not the owner of the facility.
————————————————-

I do not know what set of regulations you are baseing your opinions on. If yours alone then you are of course correct. To apportion culpability, a little bit more info would be needed. Where exactly did the incidenct occured inside the store, infront of the store? etc. what cause the injury, wet/slippery floors, falling light and or ceiling fixtures, etc. what are the agreements between tenant and the owners of the facilities. But we discussing defamation, malice, blogging etc or something else?

Here is the link to consult the WordPress terms, http://en.wordpress.com/tos/

If there are doubts on any points, it may be sensible to consult with WordPress directly.

@ Adrian Hinds aka Tall_boy
If someone assaults me in a shop in a mall and the security in the shop did little to intervene … man this getting a little too complicated now..!

@ Flying fish

I betta read your link before I t’row some lashes in Tall_Boy…LOL

What is also clear is that interpretation of laws rest with lawyers and ultimately with courts. Where doubts exist, cases taken to court will use precendents and determine outcomes. The cases will confirm existing precedents and may set new precendents. So, those seeking absolute clarity–both sides–need to have their day in court.

WordPress is a US entity and I would imagine would lead to US laws applying. It largely depends on where suit is filed. Likelihood is that suitor would choose the jurisdiction that most likely favours if a choice exists.

Some of you may be out of touch with some modern technology. BU now uses Twitter and that is a route to a different Internet audience. A Twitter account named Barbadosnews picks up stories from Barbados and posts that on Twitter: it has today posted a story about Mr. Henry and the Nation, based upon the item posted by Barbados Free Press on August 24. It has also posted the BU story on boycotting the Nation. The words posted spread far and wide and without comments or caveats. They are immediately reproduceable in entirity with contributors comments.

Someone in Japan may read about Mr. P, and know of this person, and therefore be surprised to read that Mr. P is ——-. But, they reproduce it. They repeat it and so on. The word has become ‘truth’. BU will be cited as the source.

Mr. ROK, I would not feel comfortable arguing about some hypothetical issues. There are specific things that will or may be brought up as matters for determination. Speculating, especially if wrongly done, is not helpful. Perhaps you should consider some actual instance and discuss that.

Regarding jurisdiction, paragraph 15 makes clear that California law will apply.

@Flying Fish

“Speculating, especially if wrongly done, is not helpful. Perhaps you should consider some actual instance and discuss that.”

Speculating? If I were merely speculating to add to argument I would have quit a long time ago. I am dealing with legal principles. Does one have to be a lawyer to understand and articulate legal principles?

I fear that if I discuss any credentials I may end up being a larger target for my arrogance, swell-headedness and conceit so I will not. Quite simply, I made my contribution based on some knowledge of legal principles. I am surely not entering the realm of the hypothetical… but have it as you wish because I don’t know how one could discuss a legal case or precedent without a knowledge of the principles either.

You made your comment and I did not question your credentials, I took your comment as it came and did not dismiss it as nonsense or hypothetical, thanks to RD. If it is that you don’t want me to address you, I will not as from now on.

Quoting Mr. Bonny Peppa:

“Jack Ass Bowman Human Rat Faeces, ‘Has anyone ever been so boring to so many’?
Yes, you Jackass. So now ya kno wah ya plan ta do ’bout it?”

I don’t plan to do anything. I assume Dr. Halsall, using ‘he’ famous internet skills, will trace me. Perhaps he will pass the information to Mr. ROK, who has already threatened me, before an international audience, that “I WILL GET YOU.”

Best wishes to you, Mr. Peppa.

@Anon: “Another area, probably deserving of a complete article by Chris Halsall (for whom I have the greatest respect) is on how to avoid being tracked – how to protect one’s anonymity.

Thanks for the kind words Anon.

However, at the end of the day, it is *impossible* to be completely anonymous on the Internet. Or, at least, without breaking the law. I know how to do it, but don’t, and won’t advise how to do it either.

There are tricks you can (legally) use to hide your activities from observation by the providers here in Barbados (e.g. SSOCKS, SSH, IPSEC), but at the end of the day, your traffic must (generally) hit “plain-text” somewhere, usually in the USA. And we all (or at least, all should) know the level of monitoring being conducted their.

Interestingly, a case against David / BU will involve multiple jurisdictions. This complicates and makes much more difficult any action… Many providers, in multiple jurisdictions, must cooperate to build a strong case.

There is, however, a non-zero probability that BU will be shut down.

David — as always, if you’d like any pro bono technical counsel, you know how to reach me. You also have my public GPG key index, so you can send me messages which only I can read. If you generate your own key pair, I could reply in such a way that only you could read it, and you would know that only I could have written it.

Also, if I may, I highly recommend Neal Stephenson’s Cryptonomicon. I’m re-reading it now. Gives an excellent background on similar matters (and is a jolly good read).

Chris Halsal
Jack d Human Rat want ta kno’ why you does write sa much boring shyte pun dis blog and you in curse he? But ya did ready ta slaughta me and Bimbro fa expressing in we Lingo. Why ya doan ‘buse de human rat now? You frighten fa he or wah? Tek he on den.

Bonny is a struction-mekka.

Anon says:

While technically any defamation generated like this is libel, one has to wonder if slander might not be the better tort to impose.
————————-
Remember that in Barbados slander and Libel are no longer causes of action. There is only defamation.