Anthony Doesburg: Beware the sheriff in web's wild west

Advances in technology have a habit of outpacing the law. There are numerous examples of this, some of which have been resolved, but others continue to exercise law experts, pundits and politicians.

In 2002, long after e-commerce became mainstream, we got an Electronic Transactions Act that put the same stamp on deals done in the virtual world as those signed off in a solicitor's office.

A year later, the Crimes Amendment Act 2003 gave authorities new powers to intercept traffic on newfangled computer networks. In 2007, after internet users had been drowning in spam for years, the Unsolicited Electronic Messages Act set about stemming the tide.

As each of these laws crept towards the statute book, a chorus of interest groups variously asserted that the world would stop turning if they weren't passed, were passed, or if the group's suggested amendments weren't made.

This sort of debate can be noisy at the time, but helps remind lawmakers not to rush. Legislation hatched in a hurry can have unforeseen consequences - such as the Foreshore and Seabed Act, that gave rise to the Maori Party, which helped usher Labour out of government at the last election. At least that spared Labour further legislative embarrassment. In its final days, it made a clumsy attempt to crack down on digital music and video pirates with an updated copyright law.

When the National-led Government took charge, it bowed to protests and put the contentious change - section 92A of the Copyright (New Technologies) Amendment Act - on hold. As written, it placed the onus on internet service providers (ISPs) to disconnect alleged pirates, with no clear process for ISPs to follow.

Commerce Minister Simon Power last week proposed a new plug-pulling mechanism, with the Copyright Tribunal acting as intermediary between copyright owners and infringers. A fortnight remains in which to make submissions on the proposal.

Another area of law whose use-by date is being questioned in the digital age relates to what can and can't be said online. The internet lets anyone with a computer communicate with a mass audience, but it also exposes them to one of publishing's perils - the danger that they might say something defamatory about an individual or company, opening them up to a potentially costly lawsuit.

Yet there's a naive belief abroad that you can say anything you like online. High-profile trials such as the Bain and Sophie Elliott murder cases have brought the issue to the fore as some bloggers, and subsequent commenters, feel compelled to give their verdict before the jury's had a chance. But that's an issue of contempt of court rather than defamation, and people prone to such recklessness could find the Solicitor-General David Collins gunning for them. He is apparently considering action over online comments about Sophie Elliott's killer Clayton Weatherston.

Defamation, on the other hand, is straightforward, as John Burrows, a media law expert, law commissioner and former professor of law at the University of Canterbury, told me a couple of years ago. "The law is the law is the law," Burrows says, emphasising that the medium in which a defamation is uttered is immaterial. Even just saying something slanderous about a third party in casual conversation is defamatory.

There is no hard-and-fast definition of what is defamatory, but any statement that wrongly harms someone's reputation can be taken as such. A plaintiff must convince a judge or jury that his or her reputation has suffered, but doesn't have a case if the defendant can prove the damaging statement is true.

Burrows warns that on that basis, any reckless claims about someone on a website, or in a blog, email, internet forum or podcast, could be defamatory. How a court will look upon it depends on how widely read or heard it is.

It's a potential minefield for bloggers, particularly if they allow unmediated comments. According to Russell Brown, who has run the blog site public address.net since 2002, there's no shortage of defamatory material on the local internet. But the mere fact that the web is awash with it is useful for his site.

"You'll read far, far stronger things on certain more notorious blogs - and in their comments sections. In a way, they do us a favour by pushing the line out as far as they have - it's hard to see our relatively reasonable discussions as a target for lawyers when such over-the-top things are being said on other blogs."

Brown thinks defamation law online is a little like copyright law - rights are generally not exercised, for one reason or another. Technology, however, in this instance changes nothing - you might have the means to say what you like online, but shouldn't count on getting away with it.

Anthony Doesburg is an Auckland technology journalist