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The most recent developments in media law have come from European
and international organisations, such as the European Union's
Copyright Directive (2001/29/EC) and the E-Commerce directive
(2000/31/EC) which aims to ensure that copyrighted works are sufficiently
protected.
The World Intellectual
Property Organisation (WIPO) is a non-government agency
of the United Nations, which administers international treaties
relating to intellectual property protection. It is affiliated
to ICANN, the Internet
Corporation Assigned Names and Numbers, which is not
a profit making organisation, in the United States. Through them,
ICANN registered domain names such as .net, .org and .com can
be adjudicated and they provide a worldwide remedy for cases involving
'domain name grabbing'.
Media technology is advancing so quickly that it poses a great
challenge to current media law and most of the changes that have
been made to current legislation have not been because of government
legislation but because of litigation.
The US is leading the way in the development of new legislation
for the Internet and in addition to steps taken by the WIPO, the
Council of Europe and
the European Union have made progress in legislating for the Internet.
Publication in new media formats is subject to the same legal principles
of defamation as other areas of the media. The Internet with such
widespread access has created even more opportunities for defamation
and the current legislation should be applied to any new media format
to ensure they are not sued. The areas of concern surrounding Internet
publication are the world wide web, e-mail, bulletin boards and
news groups.
In terms of the World Wide Web, every organisation or individual
is responsible for the documents they write and publish, even if
they are published on somebody else's site. It is possible for an
individual author or journalist to be sued as well as an on-line
magazine or newspaper under the principles of vicarious liability.
In England, the first court ruling on Internet defamation was in
the case of Godfrey v Demon Internet Ltd (2000). A libel action
was brought by Godfrey against the Internet Service Provider because
of alleged defamatory material about him on a newsgroup hosted
by Demon. Godfrey asked for them to remove the material before
taking them to court, but although Demon recognised that this
information was defamatory, they said that that the material was
posted by its users and they were therefore not responsible. Under
the Defamation
Act 1996 the court accepted that the definition of
'publisher' excluded Demon, so Demon used the defence of 'innocent
dissemination' under the Defamation Act 1996. Because Demon knew
about the defamatory material they were unable to claim ignorance
about the alleged defamation which is a required element of this
defence. Demon finally paid costs and damages to Godfrey in March
2000 in an out of court settlement.
Care must be taken when posting on bulletin boards to ensure that
messages do not cause serious harm to a person's professional or
personal reputation.
A major element of Internet defamation is that the defamatory material
will be published throughout the world to third parties. This feature
means that somebody who wants to make a claim has a choice of jurisdiction
in which they can issue proceedings and therefore a choice of different
laws. Defamation laws are not the same in all countries and it is
important that authors and publishers work in line with the legislation
of all countries where material can be read.
The
European E-Commerce Directive was introduced in 2000
by the European Union to try to tackle the problems arising from
different legislation existing in different jurisdictions. Had
this directive been in place at the time of the Godfrey v Demon
case in 2000, Demon would not have been liable as long as they
did not initiate the transmission, choose the recipients or modify
any information within that statement. Article 15 of the E-Commerce
Directive states that they will not be obliged to monitor the
information they transmit and store, but under Article 14 they
would have to have removed any defamatory statements if they became
aware of them.
Copyright is a great area of concern in the new media environment,
as is rights clearance and there is a lot of information available
about these areas on-line and from media bodies and organisations.
The Internet is being used more and more for research purposes
and material found on the Internet is not in the public domain and
is protected by copyright law. If you do wish to use material found
on the Internet, the relevant copyright clearance must be obtained.
Under English law domain names are not seen as an intellectual
property right, so it is impossible to claim copyright infringement
of such. However, Trademark law and passing off can be used as
a remedy for people alleging infringement of a domain name that
is registered or a brand or company name that is used as a domain
name. The case of Marks & Spencer and Others v One In A Million
Ltd and Others (1997) took place because domain names such as
marks&spencer.com, thetimes.co.uk, sainsburys.com, bt.org
and virgin.org had been registered by the defendants.
The Copyright Directive
(2001/29/EC)
came into force in 2001 to make sure that copyrighted works
were sufficiently protected throughout the EU.
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