Jack Straw yesterday announced three proposals to reform English defamation law, which has long been considered one of the most plaintiff-friendly in the world. The proposals are designed to curb perceived ‘libel tourism’ by foreign magnates, sheikhs and oligarchs, who have used English courts to stifle criticism in publications whose distribution within the United Kingdom is incidental.

If the proposals are adopted by Parliament (which would not occur until after the general election), three main changes would be made to the law:  Read more »

• single publication rule: unlike American law, UK (and Australian) defamation law views a separate tort as being committed whenever defamatory material is published (which is to say, communicated) to another (see Duke of Brunswick v Hamer); thus, each separate pageview of a defamatory website is, technically, a separate libel, with the effect that an online newspaper archive could face indefinite liability, since the limitation period restarts with each new impression (as occurred in Loutchansky v Times Newspapers Ltd [Nos 2–5]). Under the proposal, plaintiffs will be able to bring a single action in respect of a defamatory allegation, and will be required to do so within one year of the original publication, subject to discretionary extension by the Court.
• public interest defence: currently there is no general defence to a claim of defamation that publication was ‘in the public interest’ (though this is a relevant factor in relation to certain forms of qualified privilege, and in relation to the Reynolds privilege). According to the announcement, ‘consideration will be given’ to a general defence of this nature. This seems problematic, since the notion of what is in the public interest is rarely beyond dispute, meaning that this defence won’t provide certainty to investigative publishers. Moreover, the burden of proof still rests on the defendant.
• stronger requirements for service outside the jurisdiction: the Civil Procedure Rules will be strengthened (though in precisely what form is unclear) to make it more difficult to obtain an order for service outside the jurisdiction where allegedly defamatory materials have been published abroad but are accessible in England.

The Register has an interesting piece analysing how cybercrime botnets are connected and why they seem impervious to outside attack. It seems that the botnets are programmed to reconfigure themselves if one upstream provider goes down, and are each strongly interconnected, which creates a whole lot of redundancy:

“What they’ve worked really hard to do for themselves is build a spiderweb of connections to the outer ring if the outer ring were the internet at large,” Sean Brady, manager of RSA’s identity protection and verification group, told The Register. “As you start picking off threads, they work to reroute, to crawl along different threads.”

Needless to say, this redundancy is pretty attractive to botnet controllers (who typically seem to buy or lease access from malware creators). What’s really interesting, though, is that it turns out all the major botnets rely on about nine commercial ISPs, which are legitimate businesses. Take those ISPs offline — or require them to block botnet communications — and it will be much harder for botnet operators to re-establish contact with infected computers once the command and control link is severed (as recently happened with the Zeus botnet). This raises a very interesting legal question about whether those ISPs are, or should be, liable to block access.

Hot on the heels of the ever-popular song graph meme, we have cartographorisms:

Get your fix of topographical humour over at the New York Times.

I could use one of these monkeys to write my thesis:

More great comics here from the talented penmanship of Mrs Stuart.

In a speech delivered at the Centre for Law, Justice and Journalism in London last week, Sir David Eadycalled for an end to nationalised approaches to litigation arising from internet communications:

What is plainly required is an international agreement to govern communications on the web and, in particular, to determine whether they are to be regulated by an agreed set of supra-national regulations or, if not, to provide a generally acceptable means of deciding which domestic law should apply to any offending publication. But clashes of law are undesirable and will only come increasingly to sour international relations. I would characterise this as essentially an international problem deriving from technical advances. It is obviously not a specifically English or UK issue.

The full speech (bizarrely entitled ‘Strasbourg and Sexual Shenanigans: A Search for Clarity’) is well worth reading. It provides an engaging and erudite overview of the history of media regulation in the United Kingdom, and gives a nuanced account of some of the issues facing courts and legislatures when setting the balance between the rights to freedom of expression and private life.

According to Iranian news reports, Iranian intelligence forces have hacked into 29 human rights activism websites which they allege are a front for US espionage and intelligence agencies. The attack follows the finding of an Iranian domestic court that the websites were developed to spy on Iran’s nuclear programme, and for the purpose of ‘provoking sedition and illegal demonstrations and rallies through releasing unreal and unfounded news and reports after the June presidential elections … providing media and news support for the Jundollah terrorist group and the monarchist opposition groups.’ Apparently, the network also distributed American anti-censorship software.

Update: Following the attacks, Iranian security forces arrested dozens of people accused of being involved in the websites’ operation. However, Western media tells a very different story, with The Tech Herald now reporting that those arrested in the operation:

were tortured for their access to the various websites, and as such the sites were taken down by physical violence, and not hacking. They have 30 members of our group held hostage, including the sister of one of our members, who has nothing to do with this matter. Each of the 30 hostages is a human rights activist and nothing more. …

With all the fuss over the iiNet decision today, it might be easy to overlook another interesting copyright judgment that was handed down just a few metres away.

In Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd [2010] FCA 29, the owner of copyright in the children’s song ‘Kookaburra Sits in the Old Gum Tree’ successfully sued the Australian band Men at Work for infringing copyright in the musical work by reproducing the flute riff in its hit single, ‘Down Under’, which has become a kind of unofficial anthem for many Australians. Kind of ironic that the national spirit infringes copyright.

Update:The judgment has been released — more analysis coming soon.

Justice Cowdroy of the Federal Court of Australia has just handed down judgment in Roadshow Films Pty Ltd v iiNet Ltd [2010] FCA 24 (iiNet Case), finding in favour of the respondent. As you’re probably aware, the iiNet Case centres on allegations of copyright infringement in connection with unauthorised downloads of films by iiNet’s subscribers using the BitTorrent protocol. The decision confirms the safe-harbours enjoyed by internet intermediaries that prevent them from having to police internet content and limits their responsibility for users’ conduct. Some huge ramifications for Australian service providers were avoided today. From his Honour’s summary reasons:

“iiNet is not responsible if an iiNet user uses [the BitTorrent] system to bring about copyright infringement … the law recognises no positive obligation on any person to protect the copyright of another”

I’ll post a more detailed analysis of the judgment once I’ve had time to digest it fully. For now, the essential points from his Honour’s reading of the summary (as liveblogged and twittered from Courtroom 18C) seem to be as follows:  Read more »

Some interesting comments from Michael Geist concerning the now-infamous Anti-Counterfeiting Trade Agreement (ACTA), which is being negotiated in secret by representatives of most developed countries. This piece considers the extent to which states party to ACTA would be required to amend their domestic laws:

most [representatives] have sought to dampen fears by implausibly claiming that ACTA will not result in any domestic changes in their own country. With that in mind, we get:

• the European Union stating “ACTA will not go further than the current EU regime for enforcement of IPRs”
• the USTR maintaining that ACTA will not rewrite US law
• Australia’s DFAT confirming they do not expect to see major domestic changes to Australian law as a result of the ACTA
• New Zealand stating “ACTA will not change existing standards”
• Canadian Industry Minister Tony Clement assuring the House of Commons that ACTA will be subservient to domestic rules

Of course, if all of this is true, skeptics might reasonably ask why ACTA is needed at all. The truth is that ACTA will require changes in many countries that ratify the agreement. The EU Commissioner-designate for the Internal Market, Michel Barnier, recently acknowledged precisely that during hearings in Brussels. Meanwhile, US lobby groups have stated that they view ACTA as a mechanism to pressure Canada into new copyright reforms.  Read more »

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