ONLINE ARCHIVES: Finding a Common Ground in the Quicksand of Online Defamation Developments.
Nowhere is the world smaller than on the Internet. With one mouse click, people from across the globe can re-acquaint themselves with old friends, research the unknown, read newspapers from faraway places and times. As the world cyber-shrinks, the ways in which governments and courts attempt to control the information on the web has become diverse and contradictory. Issues of national interest and international jurisdiction have stretched across all aspects of the web. We must find a more cooperative, coherent and consistent international policy, one which fosters the free flow of information, while protecting personality rights.
The controversy is not limited to the present, but affects the way the Internet records and preserves history. As newspapers bring massive archives online, they are faced with defamation laws which may hinder the free flow of information or inadequately protect personality rights. What is protected speech in one country may be defamation judged from another country in a future time.
This paper explores the traditional liability regimes concerning paper archives and how these laws are applied to online archives available on the web. The paper explores how national courts are attempting to mold traditional theories of liability to fit the new Internet-based reality of publishing and archive maintenance. The paper explores the recent case in Germany, which extends national jurisdiction into the New York Times archives in New York City, as well as cases specifically dealing with online defamation standards. We also review the enforcement of defamation judgments from foreign jurisdictions in the US, where many of the media outlets involved in the litigation are headquartered. The paper then outlines recent developments to “combat” libel tourism in the US, in particular, statutes which would extend jurisdiction to foreign nationals who have not availed themselves of American jurisdiction. These laws seek to extend the First Amendment far beyond American borders.
These developments are in many ways, spiraling out of control, escalating away from a common path for resolution of the competing interests of society and personality. While a common solution might be warranted, such will be difficult given the competing priorities in the varied jurisdictions. The paper also reviews the potential solutions for standards that will satisfy these priorities.
Keywords: Free Speech, Defamation, Online Archives.
EJLT is an open access journal, aiming to disseminate academic work and perspectives as widely as possible to the benefit of the author and the author’s readers. It is the assumption of the EJLT that authors who publish in the journal wish their work to be available as freely and as widely as possible through the open access publishing channel.
Authors who publish with EJLT will retain copyright and moral rights in the underlying work but will grant all users the rights to copy, store and print for non-commercial use copies of their work. Commercial mirroring may also be carried out with the consent of the journal. The work must remain as published – without redaction or editing – and must clearly state the identity of the author and the originating EJLT url of the article. Any commercial use of the author’s work - apart from mirroring - requires the permission of the author and any aspects of the article which are the property of EJLT (e.g. typographical format) requires permission from EJLT.
Authors can sometimes become no longer contactable (through, for example, death or retirement). If this occurs, any rights in the work will pass to the European Journal of Law and Technology which will continue to make the work available in as wide a manner as possible to achieve the aims of open access and ensuring that an author's work continues to be available. An author - or their estate - can recover these rights from EJLT by providing contact information.
The European Journal of Law and Technology holds rights in format, publication and dissemination.
EJLT, as a non-commercial organisation - which receives donations to allow it to continue publishing – must retain information on reader access to journal articles. This means that we will not give permission to mirror the journal unless we can be provided with full details as to reader access to each and every journal article. We prefer and encourage deep linking rather than mirroring. Encouragement is thus given for all users – commercial and non-commercial – to provide indexes and links to articles in the EJLT where the index or link points to the location of the article on the EJLT server, rather than to stored copies on other servers.
Please contact the European Journal of Law and Technology if you are in any doubt as to what this statement of use covers.