SEEU Review vol. 6 Nr. 2 (pdf) - South East European University

Dennis J. Farrington, PhDservices, e-mails and social networking sites such as Facebook or Twitter 82or via chat-rooms (as in the successful English libel case Keith-Smith vWilliams. 83 ) E-mails within corporations are a particular source of concern,as seen in the Norwich Union case 84 where NU as the employer was heldliable to pay substantial damages to a rival insurance company about whichNU’s employees made defamatory statements on its internal e-mail system,leaving it vicariously liable for the actions of its employees. The process ofdiscovery in litigation means that embarrassing, defamatory, orincriminating material can be retrieved even when the user thinks he or shehas deleted the offending item. 85 The disinhibiting effect of cyberspace isexplored in K Fox, Watching the English: The Hidden Rules of EnglishBehaviour 86; she sees such disinhibition as ‘an illusion’ based on the‘luminality effect’ where the use of e-mail may well feel ‘more ephemeraland less binding’, but is in fact ‘if anything more permanent andconsiderably less discreet’, and hence ‘the alternative reality of onlinecommunication’ can have ‘adverse consequences’: ‘Excessively uninhibitedemails, like office-party misdemeanours, may come back to haunt us’. 87Anthropologists, Fox notes, refer to ‘a luminal zone’ as ‘a marginal,borderline state, segregated from everyday existence, in which normal rulesand social constrictions are suspended, allowing brief exploration of828384858687HEIs which put prospective students in touch with each other via Facebook need toconsider potential liability for about-to-be-enrolled-student X defaming persons Y and/orZ (see H.A. Deveci (2005) Usenet defamation: FE/HE liability Computer andTelecommunications Law Review 11 (5) 137-143.[2006] EWHC 860 (QB) where W was ordered to pay £10,000 damages (including £5000aggravated damages) and issued with a restraining order for defaming K a UKIPparliamentary candidate, as a sex offender and racist in a Yahoo! hosted site. Clearly thereare implications for chat-room and blog discussions if the traditional tenets of libel laware to be applied as if such chat-rooms and blogs were formal printed matter rather thanthe ‘electronic gossip’ of cyberspace: could an HEI or individual academic annoyed withcomments in a student blog site seek to have it closed down by the internet serviceprovider (ISP) on the basis that the ISP is now on notice as hosting and perpetuating alibel?The Times, July 18 1997.There is a widely held but mistaken belief that ‘deletion’ has its normal literary meaning.See R v Scriba [1995] Crim LR 68 where a doctor amended a patient record on hiscomputer but the hard disk still revealed all to the police and he was charged not onlywith the manslaughter of the patient but also with perverting the course of justice.2004, pages 225-7.New rules for electronic discovery have been introduced by the US federal courts fromOctober 2006, with the prospect of clash with data protection laws in the EU as US courtsseek to gain access to materials relevant to crimes and civil suits involving parties beyondnational borders. According to an article in The Financial Times (10 November 2006) thenew rules also will make it even more important to isolate clearly what is lawyer-clientprivileged information. This is relevant not just to lawyers, but to institutions whichcorrespond with them by email.28