Saturday, January 29, 2011

What is Secondary Publishers?

One of the three requirements for a defendant to be liable for defamation, he must be a publisher of the defamatory statement. The definition of publisher at common law includes anyone who participated in the publication of a defamatory statement. This is very wide, encompassing both primary and secondary publishers.

A primary publisher of defamatory material is one who exercises direct editorial control over the published statements, as defined, for example include authors, editors and publishing houses.

Secondary publishers do not take an active editorial role but still make the defamatory comments available to third parties. Examples of activities which can be undertaken without making the person a primary publisher include libraries, news-stands, bookshops and ISPs. Secondary publishers can still be liable for defamatory material communicated to a third party, even in the absence of proof of fault.

The distinction between primary and secondary publishers is of particular importance in relation to the internet. In many cases, the originator of a defamatory statement cannot always be identified and is rarely worth suing. It may therefore be necessary to pursue a secondary publisher. Where a defamatory statement is made on a company website, for example, the claimant has a choice of who to sue. He could choose the owner of the website, as the primary publisher, or pursue the operator of the website, the ISP, as a secondary publisher.

The lack of protection given to secondary publishers means that, in practice, ISPs are often the first target of claimants wishing to remove a defamatory statement from the internet. The distinction between primary and secondary publishers can become blurred in internet cases. For example, a company providing an online news service may be a secondary publisher if all it does is collect news articles and print them in the same form on the internet.

However, if the company decides to exert some form of editorial control by editing the articles or providing summary extracts, it may become a primary publisher. This can cause considerable difficulties for ISPs.

There is also doubt as to whether search engines or providers of hypertext links are publishers.

In Lindley v. Delman 25 P. 2d 751 (1933) the showing of a libellous letter and issuance of a request to others to visit a place where the libellous statements could be viewed was held to constitute a publication under the definition of defamation.

In Lawrence v. Newberry (1891), 64 L.T. 797 a letter to a newspaper referring to a speech containing defamatory content which was published elsewhere attracted liability to the defendant.

Similarly, in Hird v. Wood (1894), 38 S.J. 234 (CA) the defendant was merely sitting beside a placard containing defamatory remarks and drew the attention of others to it which resulted in a finding of liability. While these cases are significant in age, they serve to stand for the proposition that simply directing others to defamatory materials may also result in publication liability. Therefore, hyperlinks - upon which the Internet is built - from one HTML document to another could attract liability.

However, as noted by Takach, in the U.S. case MacFadden v. Anthony, 117 N.Y.S. 2d 520(Sup. Ct. N.Y. 1952), no responsibility was given to a radio commentator who made an on-air reference to a libellous magazine article. The court concluded that the commentator did not repeat the libel verbatim or in substance, and the words which were actually broadcast were themselves not libellous.

By analogy, the same principle could apply to the provider of a hypertext link. However, much may depend on the facts. For instance, if the link is to a site as a whole, as opposed to a particular article on it, there is a stronger argument that no act of publication takes place.

A similar uncertainty applies to search engines. Although a search engine is a publisher of the page headings and short extracts, it is less certain whether it is a publisher of material on the linked sites themselves.

No comments:

Post a Comment