CHAPTER
ONE
INTRODUCTION
1.1
Background of the Study
The
emergence and rapid advance of technologies have changed the way people
interact, communicate and participate in social and political life. Different
platforms and means of digital communication provide people from all races the
possibility to exchange information, express thoughts, opinions and ideas
without barriers, merely having computer and access to the Internet[1].
Digital
evolution has made a tremendous impact on social, economic and political development
in different countries all over the world. Today different communication
services provide people possibility to share information within shortest time,
communicate online with physical persons, private companies, state authorities,
express oneself and influence political decisions[2]. Facilitating
our lives and accelerating performance of our everyday activities, serving as
an enabler of exercising users’ fundamental human rights such as freedom of
expression and information, freedom of assembly, etc., the digital technology brings
new risks and challenges for its users, policy makers, legal scholars and
practitioners.
Social
and legal problems involving the digital technology cannot be ignored today, as
online activities have become not only necessary, but even vital part of
everyday life for the people throughout the world. Despite the degree of
involvement of the digital technology in our lives and our experience with digital
activities, it still remains the least regulated area, where social
relationships take place. The law is still not good at regulating technology.
Therefore, it is often called “lawless frontier”, because the law operates on
the basis of delimited territorial jurisdiction using frameworks and doctrines
developed in an era of physical things and slow communication.
Users
mostly oppose any intention to regulate technology such as the Internet, as
according to existing opinion, the regulations will stifle the Net as a unique
powerful medium. However, the specific nature and the power of the digital
technology call on governments to address the risks and fears arising in this
field to put measures to criminalize abuses or offenders[3]. Among the main fields which can be affected
by illegal and harmful content on the digital technology and which therefore
need special attention are the followings: - national, economic and information
security; - intellectual property; - protection of human dignity;- protection
of privacy; - protection of minors; - protection of reputation[4].
Digital
technology advocates such as Edwards [5] foresaw
a more communal and democratic society emerging in digital age, while Johnson
and Post[6] explored
the notion of the 'real' and 'virtual' as "separate, discontinuous
territories, each with their own distinctive social properties". Other
writers viewed the anarchic, unregulated, and decentralised network as a
"technology of freedom"- one that would "defy the tendencies
towards censorship and centralised control of speech and content"[7]. This study therefore explores the defamation
in the digital age: a case for its criminalization.
1.2
Statement of the Study Problem
The
digital technologies have no doubt empowered individuals worldwide to seek,
share information and do businesses as well. However, while it presents
unprecedented opportunities, it also exacerbates the tension already seen
offline between freedom of expression and other interests. Among those competing
interests are the rights to reputation and privacy, traditionally protected by
defamation law.
Defamation,
slander and libel, and other violations of other persons’ right to privacy has,
probably, occurred throughout all ages and times. However, the digital
technology and its rise enabled us to publish and partake of information in a
completely different way when compared to traditional media – instantaneously,
without respect of physical borders. In
many cases, it concerns serious and potentially harmful types of defamation
which in turn perhaps become even more serious as the potential spread of such
defamatory acts are exponentially larger when committed on the Internet and it
is against this backdrop that this study seeks to investigate defamation in the
digital age: a case for its criminalization.
1.3
Objectives of the Study
The
main objective of this study is to investigate defamation in the digital age: a
case for its criminalization. The specific
objectives are to;
Examine
the laws of defamation
Evaluate
how online infringers are unmasked
Identify
Challenges in criminalizing offenders
Proffer
policy recommendations at the end of the study
1.4
Literature Review
The
following section includes an overview of the literature in several key areas,
designed to provide a contextual background to the case study. Firstly, the
notion of 'freedom of expression' will be considered, with particular reference
to its application in an online environment, and its influence on defamation
laws. Secondly, the application of defamation laws will be examined in more
detail.
Traditional
theories justifying freedom of expression often identify three main supporting arguments
Chesterman[8].
Firstly, freedom of expression is essential to individual self-fulfillment.
According to this model, an individual's moral and intellectual development is dependent
on that individual being fully able to express their opinions and thoughts;
conversely, the listener benefits by being exposed to a wide variety of
opinions and views.
Secondly,
society at large benefits from a 'free marketplace of ideas' whereby ideas of value
and truth will emerge, and false ideas will be exposed and dismissed Chesterman[9].
Lastly, the freedom to discuss matters of public interest is vital to a
genuinely democratic society.
Belmas[10]
stressed that in many ways, the Internet has become synonymous with an
interpretation of freedom of expression. Traditionally, the law of defamation
has been used to resolve disputes involving the competing rights of freedom of expression
and the right to defend reputation. However, resolving disputes in an online environment
is more complex, particularly when core values such as freedom of expression
are challenged, as is often the case with cross-cultural disputes. Collins[11]
argued that the opportunities for an equitable solution are further compromised
as a result of radically different defamation laws.
Chesterman
claimed that courts have consistently relied upon the "central importance
of free speech in a democratic society" to justify protection for freedom
of expression, particularly as it relates to political communication, or
matters that relate to the public interest[12].
Therefore, the balance between freedom of expression and reputation is
considered more in terms of how it contributes to an informed community. Beyer
averred that free speech is seen "not as end in itself, but as a necessary
element of democracy"[13].
Chesterman[14],
in contrast, the development of defamation laws in some countries have drawn more deeply upon theoretical
rationales of freedom of expression that focus on the moral and intellectual development
of the individual. As a result, defamation law appears to favour the rights of
the individual speaker, over other competing rights.
The
landmark High Court decision of Lange v Australian Broadcasting Corporation
(Lange)[15]
which concerned defamatory statements directed at a politician,
"clarified the interaction between the implied constitutional freedom of
political communication, and legal rules, such as those of defamation law,
which may constrain this freedom". In contrast, common law decisions generally
incorporate less overt recognition of the general value of free speech. In Ballina
Shire Council v Ringland[16],
the New South Wales Court of Appeal held that elected local councils could not
sue for defamation. Although this decision concerned the rights of citizens to express
their criticisms, the conceptual basis of the decision, in strict legal terms, has to do with
the capacity of corporations to sue for defamation rather than freedom of speech as an independent
legal principle". Moreover, "defamation is not restricted to
statements that are presented as factual and that are demonstrably false.
Martyn
asserted that in the interests of striking a fair balance between an
individual's interest in protecting their reputation, and the importance of
protecting free and open dialogue on matters of public interest, there are a
number of defences to defamation. These defences generally include
justification - relying on the truth of the statement, and, in some jurisdictions,
that "the subject matter was of public interest or public benefit"[17]; fair
comment, which relates to a statement of opinion about an issue of public
interest; absolute and qualified privilege, which protects publication of
statements made in parliamentary or judicial proceedings, and reporting of
matters concerning government or political issues.
1.5
Justification of the Study
The
increasing online and digital activities in virtual world that has empowered
many to expresses themselves in various forms resulting into infringement of
rights calls for research of this nature.
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[1] Barwell,
G., & Bowles, K. (2000). In D. Bell & B. Kennedy (Eds.), The
cybercultures reader (pp. 697-711). London: Routledge
[2]
Collins,
M. (200 1 ). The law of defamation and the Internet. Oxford: Oxford
University Press.
[3]
Crawford,
K. (2013). Control-shift: Censorship and the Internet. New media, new ethics
(pp. 173-188). Cambridge: Cambridge University Press.
[4]
Dare, J.
(2014). Online defamation: a case study in competing rights. Proceedings of
the Cultural Studies Association of Australasia Annual Conference 2004. Murdoch:
CSAA. Retrieved October 15, 2015, from http:/ wwwmcc.murdoch.edu.au/ cfel/
docs/Julie_ Dare_ FV. Pdf
[5]
Edwards,
L. (2017). Defamation and the Internet: Name calling in cyberspace. In: Law
and the Internet: Regulating cyberspace. Retrieved August 28, 2004, from http://www.law.ed.ac.uklit&law/c10_main.htm
[6]
Johnson,
D., & Post, D. (2017). The rise of law on the global network. Cambridge,
Mass.: MIT Press.
[7]
Flew, T. (2012).
New media: An introduction. South Melbourne: Oxford University Press.
[8]
Chesterman,
M. (2010). Freedom of speech in Australian law: A delicate plant. Burlington,
Vermont: Ashgate.
[9]
Chesterman,
M. (2010). Freedom of speech in Australian law: A delicate plant. Burlington,
Vermont: Ashgate.
[10]
Belmas, G.
(2012). Cyber liberties and cyber law: A new approach to online legal
problem solving. Retrieved August 18, 2014, from Edith Cowan University Web
site: http:/ /library.ecu.edu.aulsearch/aBELMAS/abelmas/ 1,1, 1
,B/1962@info&FF=abelmas&1,0,4800,0,0
[11]
Collins,
M. (2011 ). The law of defamation and the Internet. Oxford: Oxford
University Press.
[12] Ibid
[13]
Beyer, A.
(2014). Defamation on the Internet: Murdoch University Electronic Journal of
Law, 11(3). Retrieved September 1, 2015, from http:/
/www.murdoch.edu.aulelaw/issues/v 11n3/beyer 113 _text.html
[14] Ibid
[17]
Martyn, A.
(2014). The Commonwealth plan for reforming defamation law in Australia. Research
note No.4. Canberra: Department of Parliamentary Services. Retrieved September
2, 2015, from http://www.aph.gov.au/library/pubs/rn/2004-05/05rn04.pdf
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