Sunday, January 28, 2007

Caught up in a Climate of Defamation

By now, you must have seen how 2 bloggers are being sued by NST for defamation. Understandably, local bloggers have been going overtime citing freedom of speech and arguing against censorship. The mainstream press quotes "freedom with responsibility" which is another name for self-censorship. They're both right, you know. And rather than argue what's a dick versus what's a prick, what I want to know is if traditional defamation laws can actually apply to online Blogs.

According to Drahaman, Cirami who published the article "Defamation on the Internet - Malaysia", a defamatory statement is defined as follows:

What Is a Defamatory Statement?

None of the common law countries that are considered here have a statutory definition as to what would qualify as a defamatory statement. However case precedent has recognised the necessary criteria which could be broken down to the following:

Defamation is the publication of a false statement which reflects on a person's reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him or holds him up to ridicule or contempt.
The article provides a good summarised background of legal defamation concepts as to its applicability (or inapplicability, as the situation may prove) to online blogging.

The FAQ of US-based Electronic Frontier Foundation has distilled the Online Defamation Law (US) into the following elements:
The elements that must be proved to establish defamation are:

1. a publication to one other than the person defamed;
2. a false statement of fact;
3. that is understood as:
a. being of and concerning the plaintiff; and
b. tending to harm the reputation of plaintiff.
4. If the plaintiff is a public figure, he or she must also prove actual malice.
The key factors common to both and imho, most applicable to Malaysian bloggers, are:
- publication
- false statement of fact
- tending to harm a person's reputation

- Tending to harm a person's reputation

This factor is consequential (ie. a result of other independent factors which caused it) and I think the traditional standards can apply equally to online defamation. The plaintiff needs to prove that his/her reputation has been harmed.

To examine whether blogs can indeed result in defamation, we need to examine HOW (or WHETHER) this reputation can be harmed by the other 2 factors which are causal (ie. causing the consequence). Therefore I will concentrate the rest of this posting on the causal factors of defamation:
- publication, and
- false statement of fact.

Having dissected the concepts of defamation as such, it's obvious that a blog needs to be a PUBLICATION of STATEMENTS OF TRUE FACTS before they are subject to defamation laws. So, are blogs publications? And are they statements of true facts?

- Are blogs publications?

According to the Oxford dictionary, to 'publish'verb is to:
1 prepare and issue (a book, newspaper, piece of music, etc.) for public sale.
print in a book, newspaper, or journal so as to make generally known.
3 announce formally.
Law communicate (a libel) to a third party.
No.4 says that publishing (in a legal sense) is as simple as communicating to a 3rd party. Well, blogs are caught. Blogs are used by millions of internet users to communicate with billions of others. There is no denying it. Admittedly, this gapingly wide definition would also encompass writing "You're a wanker!" on a piece of cardboard and hanging it from your porch... but let's not go there.

Traditional media like the press, books, broadcasting etc. would be clearcut publication. They were printed/produced, they were physically distributed and most likely entailed some form of payment as well. But as far as defamation law is concerned, simply printing a bunch of leaflets and handing them out on the street is publication enough. And I agree, because there is a point when the publisher (leaflet-man) knows exactly that the act of communicating has been completed... ie. when someone takes the leaflet from him.

What if... you print a stack of leaflets and leave it at your doorstep for the wind to blow away? Hopefully someone picks one up, but chances are just as good that nobody will. And you are never really sure, where the wind has blown the leaflets to, and you never know if anyone actually picks one up. That's exactly what blogs are. We write stuff onto little files on the internet, but we never know if anybody will access those files to read the stuff we write. If people do read our stuff, great... but it wasn't as if we were peddling it mano-a-mano on the street corner.

And just to throw a spanner into the works,... Singapore's courts have ruled that it is ok for someone to broadcast unsecured wifi signals into public space. However, it is NOT OK for anyone to log onto those unsecured wifi broadcasts without the express and explicit permission of the broadcaster. They will be committing an offence. This means that simply broadcasting unsecured wifi to the public does not constitute an open ended agreement for that public to use it without explicit permission being given, even though the broadcaster intentionally left the wifi signal unsecured.

The possible implication of this ruling on blogs, is that maybe... simply posting blogs onto the public internet does not constitute an open-ended agreement for other internet users to read these blogs, although bloggers specifically know that virtually anyone can read their blogs. Therefore, UNTIL express and explicit permission is given by the blog owner to those readers, can we then construe that publication or communication has not yet taken place?

Drahaman, in the article quoted above, goes into the detailed legalese of what might actually constitute publication or communication on the internet.

Having said that, I reckon the main question remains... "Are blogs communicating TRUE FACTS?"

- Are blogs statements of true facts?

This is the all-important question.

Are blogs like broadsheet newspapers or TV news, where there is an expectation and an express duty to communicate truthful facts in an unbiased manner?

Or are blogs like the gossip magazines and "scoop" afternoon newspapers that nobody in their right mind would take seriously (remember the concept of 'right thinking members of society' within the definition of defamation)?

Or are blogs like editorials, current affairs programs and talk shows where facts are supplemented by lots of comments and lots of opinions? I think most blogs, especially those that might conceivably attract defamation suits are in this category. Interestingly, according to Drahaman, there is a concept and defense in defamation law called FAIR COMMENT.
The defence of fair comment has its roots in common law and was established to protect comment generally upon a matter of public interest.

The comment has to be made upon true facts and must be an honestly held opinion.

But who is to judge what an honestly held opinion is?
An opinion may be totally lopsided, one sided or prejudiced, this does not mean that it was not honestly held

Further... is speculation barred? Can no opinion be held upon [unconfirmed or unverifiable] facts that are honestly believed to be true?

* seantang's edits in brackets
Doesn't FAIR COMMENT seem to be exactly what the blogs are doing? I see 2 difficulties for the courts when assessing the argument of fair comment.

First is the requirement of "honesty" in the opinions held. As alluded to by Drahaman, the fact that an opinion may be biased, prejudiced, politically incorrect, or wholly speculative - does not automatically mean that it was not honestly held. Dumb people have dumb opinions. Rude people have rude ones. Suspicious, untrusting people have suspicious, untrusting opinions. Gamblers totally believe that the next roll of the dice will make them rich. Racing drivers are absolutely convinced that they are immortal.

The point is, unless one is a Vulcan (like Mr Spock), or very handy with a polygraph
lie detector machine, nobody can say that those people did not honestly believe in their opinions.

Second, these opinions must be made upon "true facts". What is the required standard of truth? What does it take before a fact can be held to be true?

Must blogs adopt the investigative reporting standards of the mainstream media? Must all facts be documented from it's original source before it is fit to be published? Can blogs use information from other sources (websites, normal media, other blogs) without doing the kind of fact checking that professional reporters and news agencies do? Can blogs reasonably depend on these 'sources' of facts to be 'truthful'? What is 'burden of truth' on non-professional entities like blogs? And remember, layman bloggers will inevitably have very different standards compared to professional news reporters on what they honestly believe to be 'truthful'.

And as Drahaman mentioned, does this requirement of 'true facts' mean that all speculation is off-limits? Many mainstream news agencies engage in speculation. Almost all talk shows and current affairs programs speculate... sometimes wildly. Blogs speculate as well, of course. So, who draws the line? And when the party you speculate about, holds the pen... how do we be sure that they will draw the line correctly?

Phew... this must be one of my longest postings yet. Anyway, I'll be watching the current events unfold with bated breath. Good luck, guys.
Other related reading:
Dangers of misusing blogs (The Sun)
Bloggers subject to same rules (NST)
Walk With Us
Bloggers United Official Page
Cite PM Abdullah & NST for Prejudice and Subjudice
rocky's bru

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