Disclaimers - a lamppost

The vivamalta fellows have added a disclaimer just before entering their forum section. it reads as follows:

Disclaimer

You are hereby informed that you are leaving the official site of VivaMalta

and are about to enter a Public Forum.

All threads, replies, posts, etc... are strictly the personal views

and opinions of the authors who express their views anonymously

on http://www.vivamalta.org/forum using a Nickname of their choice

The views expressed by the registered members on the Forum do not

necessarily state and/or reflect those of the Administrator and/or other

Co-Administrators of VivaMalta.org, neither is VivaMalta responsible for

the content or the privacy policies of other web sites to which we may link.

The viewpoints reflected herein should in no way be construed as an

incitement for the performance of any illegal activity or act of violence.

Notwithstanding the above, we cannot accept responsibility for the opinions

of individuals who choose to use this forum as a notice board for free speech

Furthermore, monitoring of all replies at all times is not possible, therefore there

might be a delay in disciplinary procedure in case of infringement of our rules.

Such disclaimers have become necessary ever since the spate of arson attacks has led the site managers to worry that their chit-chat might be leading a few hotheads from among their fold to take action. Unfortunately for vivamalta, it will be not so easy to brush off responsibility for the goings-on in the forum that one reaches after clicking on the link following the disclaimer. To begin with the forum is evidently intended as an extension of their website.

Secondly net jurisprudence points clearly to a liability that can be traced as far up as the Internet Service Provider himself, not to mention the forum administrator. The jurisprudence finds its roots in a case called Byrne vs Deane that took place in 1937 in the UK when the internet was just a dream and Berners-Lee was probably not born yet. In that case, a Golf Club was held responsible for a defamatory letter posted on the notice boards of the Club. The court held that defendants "had complete control of the walls" on the Club and could have removed the note had they seen it.

The principle remains the same with the internet. Don't let all the technology confuse you. The law is simple and clear. You control and you are responsible. The landmark case in this regard is Godfrey vs Demon, 1999. A certain Dr Godfrey noticed that a newsgroup hosted by ISP Demon Internet Limited were defamatory. Notwithstanding a strong case by the defense under the Defamation Act, Godfrey won the case on the basis of the control principle that had been introduced n the Byrne case of 1937.

Another step was achieved in Totalise PLC v Motley Fool, 2001. In this case you had elements similar to a hypothetical situation that might arise from postings on the vivamalta fora. An author posted defamatory statements using a "nome de web" (the net version of a nome de plume - in this case it was Z Dust). By the end of the case, the court ordered defendants to disclose the information regarding the identity of "Z Dust" in order for him to face his liabilities vis-a-vis the persons he had defamed.

It would not be far from the truth to say that most of the Maltese legislation relating to the facts of the matter are modelled on the UK legislation behind these landmark cases. Both vivamalta and its gallant band of merry anonymous posters must be more careful with regard to their postings and their confidence in disclaimers.

This is the inaugural post in a series called: "lampposts - moments of illumination"