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Links to blog in email made sender liable, says US court

Defamatory content 'published'

A US bankruptcy court has said that a man committed defamation just by forwarding an email with links in it to online material that was defamatory. The court said that the man 'published' the blog to his email recipients.

The US Bankruptcy Court for the Southern District of Texas was dealing with the bankruptcy of William Perry. It examined Perry's sending of an email with links in it to a blog. Perry had not commented on or added to the links, US pressure group the Reporters Committee For Freedom Of The Press (RCFP) said.

The sending of those links was enough to constitute 'publication' under Texas defamation law, the Court found, in a ruling which has alarmed free speech activists including the Electronic Frontier Foundation (EFF) and the RCFP.

"[W]hen Perry published the Blog, he acted with actual malice or, alternatively, with reckless disregard of the truth," said the Court, according to the RCFP. "Therefore, this Court concludes that Perry committed defamation in publishing the Blog to certain individuals."

Perry had been in business with a Texas mayor, David Wallace. When their partnership ended, Chapter 11 bankruptcy protection proceedings were started in relation to Perry. The Court dealing with that process dealt with claims by Wallace that emails sent by Perry defamed him.

Those emails contained links to a blog which made allegations that Wallace had connections with Margaret Thatcher's son Mark and falsely claimed that Wallace was acting in league with Thatcher to overthrow the government of Equatorial Guinea, according to a blog post by San Francisco bankruptcy lawyer Michael Rinne.

"A statement is published when it is said orally, put into writing or in print, and the statement was published in such a way that the third parties are capable of understanding its defamatory nature," said the ruling, according to Rinne. "An email, just like a letter or a note, is a means for a statement to be published so that third parties are capable of understanding the defamatory nature of the statements."

The ruling appears to contradict a Californian Supreme Court ruling that said that a woman who posted an article by someone else on a Usenet group could not be held liable for its content.

Women's health advocate Ilena Rosenthal posted an article by someone else on a news group and was sued over the piece. Rosenthal claimed she was protected by Section 230 of the Telecommunications Act but the courts disagreed.

The Supreme Court overturned other Californian courts, though, saying that the section of the law which protected service providers and others from liability for content they did not create should also extend to individuals.

"We conclude that section 230 prohibits 'distributor' liability for Internet publications," said that ruling. "We further hold that section 230(c)(1) immunizes individual 'users' of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use. Accordingly, we reverse the Court of Appeal's judgment.

"We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement," it said.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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