1. Lecturer in Private Law, University of Edinburgh; email Lilian Edwards
   
2. See for only a small selection, T A Cutrera "Computer Networks: Libel and the First Amendment" (1992) 11 Computer Law Journal 557; E J Naughton “Is Cyberspace a Public Forum? Computer Bulletin Boards, Free Speech and State Action” (1992) 81 Georgetown Law Journal 409; T Arnold-Moore “Legal Pitfalls in Cyberspace: Defamation on Computer Networks” (1994) 5 Journal of Law and Information Science 165 ; N Braithwaite “The Internet and bulletin board defamations” (1995) 145 New Law Journal 1216; F Auburn “Usenet News and the Law” (1995) 1 Web LJ; H Pearson “Liability of Bulletin Board Operators” [1995] 2 CTLR 54; S Dooley “Specific Risks on the Internet: Defamation” (1995) Computers and Law, Oct/Nov, 10; D Howarth Textbook on Tort (Butterworth, 1995) pp 563-565; C Waelde and L Edwards “Defamation and the Internet: A Case Study of Anomalies and Difficulties in the Information Age” (1996) 2 Int Rev of Law, Computers and Technology 263.
   
3. For such a survey, see Waelde and Edwards, op cit n 1
   
4. See Cutrera, op cit n.1, at 559-560.
   
5. In Scots law, for example, any repetition of a defamatory statement is actionable (see Hayford v Forrester- Paton 1927 SC 740.)
   
6. These were very much the facts of the recent Western Provident case, discussed below at pXX.
   
7. Pullman v Hill [1891] 1 QB 524. It is possible however that emails might be regarded as inherently insecure and so as akin to postcards, which may be read by anyone in transit, in which case communication to a third party is not essential for publication even in English law (Sadgrove v Hole [1901] 1 KB 1 and see B Napier “Logging on To Libel Laws (1995) 92 Law Society Gazette 21.)
   
8. See K McK Norrie Defamation and Related Actions in Scots Law (Butterworths, 1995), p 28.
   
9. Unreported, Supreme Court of Western Australia, 31 March 1994. See comment in Auburn, op cit n 1.
   
10. See further Terrett (p XX).
    
11. Scotsman, 18 July 1997.
    
12. The asserted clash between “traditional” Internet culture and “new” corporate Internet culture can be seen in many other areas under discussion in this volume. In the field of trademarks and domain names, for example (see further Waelde, p xx) there have been running clashes between Internet “pirates” who have “poached” the domain names normally associated with corporate brand names such as MacDonalds and Harrods, and the corporations in question, who have turned to conventional legal remedies for trademark infringement to rectify what they perceive as interference with their business interests.
    
13. Scotland on Sunday, 26 May 1996. For further information on the Web, see Terrett, p XX.
    
14. Equally they may well unknowingly breach the law of copyright and trademark. See, for example, the rock group Oasis’s warning of their intention to crack down on unauthorised use of copyrighted material relating to the band by amateur “fan” Web sites (Financial Times, June 5 1997).
15. (Case C-68/93) [1995] 2 WLR 499, and see comment by Forsyth at [1995] CLJ 515. Note that Shevill is an authoritative interpretation of the place of the delict for the purpose of fixing jurisdiction only, not of choice of law.
    
16. See Cumming v Scottish Daily Record and Sunday Mail and others [1995] EMLR 538
    
17. Art 21 of the Brussels Convention provides that the first court seised of any action must hear it, barring a small exception in Art 22 on related actions.
    
18. This restrictive requirement has recently been abolished in both Scottish and English law for most transnational delict or tort actions under the Private Law (Miscellaneous Provisions) Act 1995 - but was specifically retained for actions for libel and defamation.
    
19. See Bata v Bata [1948] WN 366 (CA). Scots law seems to have reached a similar conclusion in Longworth v Hope and Cook (1865) 3 M 1049 and Evans v Stein (1904) 7 F 65. An unresolved problem however is the fact that in this scenario there are at least two jurisdictions where there is publication and loss to reputation, while for the purposes of choice of law (unlike jurisdiction) there can only be one “place of the delict”.
    
20. The example is simplified. In reality the relevant law would be of a particular US state.
    
21. See New York Times Co v Sullivan 376 US 254 11 L Ed 2d 686 84 S.Ct. 710 (1964).
    
22. [1971] AC 356.
    
23. [1994] 3 All ER 749.
    
24. See Matusevitch v Telnikoff 877 F Supp ; Civil Action no.94-1151 RMU (see comment at 23 Media L.Rep. 1367).
    
25. See Truth New Zealand v Holloway [1960] 1 WLR 997.
    
26. See further Akdeniz, pp XX.
    
27. While this three category analysis is commonly accepted in US law and has by extension penetrated global Internet law, it should be noted that it has been rejected in English law, albeit in the context of hard copy magazine publishing: see Goldsmith v Sperrings [1977] 1 WLR 478.
    
28. See the articles cited at n.1., plus a useful summary of the issues in I Lloyd "Liability for the Contents of on- line services" (1995) 3 IJLIT 273.
    
29. But see now Zeran v AOL, discussed infra at n 35.
    
30. 766 F Supp 135 (SD NY 1991)
    
31. 1995 NY Misc. 23 Media L. Rep. 1794.
    
32. See Chapter 2 of the Lord Chancellor’s Consultation Document on the draft Defamation Bill, Reforming Defamation law and Procedure, July 1995.
    
33. See Hansard, HL Vol 571, col 605. The wording of this section was changed from its original form following criticism of the Draft Bill in, inter alia, Charlesworth “Legal issues of electronic publishing on the World Wide Web” (1995) 26 Law Librarian 524.
    
34. At least three other Internet libel cases have been reported in the UK other than those discussed elsewhere in this article. All appear to have been settled out of court. The first such case was that of Dr Philip Hallam- Baker in 1994, who was sued for placing an allegedly libellous notice on the Usenet concerning Dr Lawrence Godfrey (The Lawyer, 25 January 1994). Asda paid a police constable “substantial” damages when he discovered untrue statements alleging fraud against him had been placed on Asda’s internal email system (Daily Telegraph, 20 April 1995). Finally, David Braben, a computer games designer, sued his former partner, Ian Bell over statements made by Bell in an interview published on the Internet (Times, 7 December 1995).
    
35. US District Court of Eastern Virginia, 21 March 1997, Civil Action 96-952-A, available here
    
36. Supreme Court decision in Reno v ACLU(1997) 2 BNA EPLR 664. See further, Akdeniz at pXX.
    
37. Doe v America Online Inc, Fla Cir.Ct, Palm Beach Cty, No.CL 97-631 AE, 13 June 1997
    
38. See Tartan Army Home Page
    
39. Pending resolution of the dispute, Scottish Courage have withdrawn their sponsorship
    
40. The term is taken from M Lemley “Shrink wraps in cyberspace” (1995) 35 Jurimetrics Journal 311.
    
41. The power of consumer protest in relation to ISP standard form contracts can be seen from the incident in October 1996 when CompuServe was forced to drop an amendment to its standard agreement which gave the company the right to alter as it pleased any software uploaded to CompuServe (Guardian, October 24 1996)
    
42. See for example Rubens, Fraser and Smith “US and international law aspects of the Internet: fitting square pegs into round holes” (1995) 3 IJLIT 117; Cairns “Opportunities, Risks and Some Intellectual Property Constraints Surrounding the Provision and Use of On-Line Services” (1995) 4 IJLIT 19.
    
43. See M Gould “Rules in the Virtual Society” (1996) 10 Int Rev of Law, Computers and Technology 199, who cites the difficulties encountered by Canada in enforcing its pre-trial prejudice rules against the collective will of the Internet community in the Homolka child murder case (see further Bonnington, p XX).
    
44. See “Clinton backs curbs on porn sites to protect children”, Scotsman, 23 July 1997; also reports at (1997) 2 BNA EPLR 700 and 741.
    
45. Illegal and Harmful Content on the Internet, Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions, October 1996. Available here
    
46. Declaration of Ministers of EU Countries at the conference “Global Information Networks: Realising the Potential”, July 6-8 1997 (see report at (1997) 2 BNA ELPR 744.)