More stupidity on CA about defamation

jim edwards
Posted Jul 7, 2010 at 2:38 PM | Permalink | Reply
Sorry, FordPrefect:

1. “publication” is a legal term of art that does not have the meaning you appear to be ascribing to it.

Publication does not require, e.g., printing leaflets or shouting comments in a crowded theatre.
steven Mosher
Posted Jul 7, 2010 at 4:03 PM | Permalink | Reply
ford isn’t the sharpest legal tool in the box. He even misses the fact that Mann writes to other potential reviewers of McIntyre and says that steve is a fraud. On one occasion without reading the paper in question it would appear.

My response
Though one thinks of email as a direct means of communication, a message is often relayed through several servers before reaching its intended recipient. At each stage, a third party may have an opportunity to read its contents.

Does this constitute publication?
Publication, for the purposes of defamation, requires communication to a third person. That third person must actually become aware of the defamatory material. So, transmission from server to server probably does not amount to publication if the words are not read by anybody. However, if someone who is not the intended recipient were to intercept and read the email, it is likely that the Courts would consider this to be a publication. It is common for people to give access to their e-mail system to others. In such cases, where another has access, there is publication for the purposes of defamation.
Responsibility for publication
(1)In defamation proceedings a person has a defence if he shows that—
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
(2) For this purpose “author”, “editor” and “publisher” have the following meanings, which are further explained in subsection (3)—
“author” means the originator of the statement, but does not include a person who did not intend that his statement be published at all;
“editor” means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and
“publisher” means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.


Your point 5 is just wrong!

Mr Mosher
I can find
Mr. fraudit: Date: Tue, 12 May 2009 08:54:44 +0100
ClimateFraudit 17:07 29/07/2009
If *others* want to say that their actions represent scientific fraud, Date: Fri, 31 Oct 2003 05:37:03 -0500
this fraud Date: Thu, 30 Dec 2004 09:22:02 -0500
paper is pure scientific fraud Fri, 04 Feb 2005 15:52:53 -0500

2 valid fraud statements to others on emails not seen by non named recipients.

on the other hand I posted this:
Wow good going McIntyre The whole blog sanitized of fraud claims.
Just searched and found none - I though perhaps I had misjudged/misread this blog
all the palinizations removed!

but then...

Google - fraud site:http://climateaudit.org/ gets 464 hits

464 hits for the F word remained published in this site for many months (I think I saved the pages somewhere!!)

Posted Jul 9, 2010 at 1:00 PM
I agree with your comment re publishing to the email recipient. You could defame me in private emails between only us and I would have no recourse.
[www.] law.unimelb.edu.au/cmcl/publications/def3.pdf
There is no doubt that to give rise to a cause of action there must be a publication by the defendant. That is the foundation of the action....If the statement is sent straight to the person of whom it is written, there
is no publication of it; for you cannot publish a libel of a man to himself... each communication of defamatory material is a separate publication, and therefore a separate cause of action;...but a defendant is not liable for a letter that has been wrongfully intercepted by another ...everyone who “takes part” in publishing defamatory material is a publisher, and is therefore liable for defamation...

[www.] lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/7116-WJ-Defamation-Common%20Defences.htm

Interesting stuff esp. No7

(www.] ashford.gov.uk/council_democracy/council/constitution/part_5_-_codes_and_protocols/appendix_5_-__defamation_and.aspx
(b) Qualified Privilege - exists where
the person who makes a communication has an interest or duty (whether legal, social or moral) to make it to the person to whom it is made; and
the person to whom it is made has a corresponding interest or duty to receive it; and
the person who makes the communication is not motivated by malice.

So publishing in UK law happens on every repeat - you copy the email defaming McIntyre from eaemails and post it on a blog which someone else copies to their Blog - McIntyre to claim defamation from Jones would also have to claim from eaemails, you, and the copier of your blog.

However Jones corresponding to Mann comes under the last quote above - privilege; they both have similar views on the subject - and so it is unlikely to be actionable.

Publishing texts on blogs with high readership (millions for wuwt) that suggest impropriety (or even fraud) on the Team's part, or even questioning their competence, would open a real drum of worms should those defamed turn nasty. In the UK there is a statute of limitation of 1 year for any claim - but that is timed from the last publication.

It should be noted from one of the references that editing a blog is bad. You should only react to complaints. Editing implies that you approve of the posts that remain.
"In order to have the best chance of taking advantage of these defences, a host should not as a matter of course monitor/edit the content of websites that it hosts; however as soon as the host becomes aware of potentially defamatory content, that content should be quickly removed. "

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