Companies should be wary about the information they upload to servers and circumspect about the nature of the information they post on the Internet because the debate is still open as to where material is published in the online arena.
Many commentators still believe that publication takes place at the point that the material is uploaded to the relevant Web server.
However, the more correct view would be that publication in Internet defamation cases occurs when the offending material is published on the user's screen, according to Leif Gamertsfelder, a lawyer in Deacons' National Digital Industries Group.
-Publication does not occur when offending material is uploaded to a Web server because at that point nothing meaningful is published. The offending material is stored in bits and bytes but is unintelligible to humans," Gamertsfelder said.
-Defamatory material only becomes defamatory if a human can read it or hear it. It is nonsense to claim that defamatory material is published at the point it is uploaded to a Web server because it is unintelligible to humans at that stage," he added.
Only when data becomes capable of meaning to humans will reputation be relevant and only then can the issue of defamation arise, Gamertsfelder said.
Before files are delivered to the requesting browser they will need to be sent via a communications protocol (usually TCP/IP), which means they're broken up into packets and sent across different paths.
At the browser they will be reassembled and reordered where necessary and then passed over to the browser for viewing.
Only then will 'publication' in the ordinary sense of the word occur, according to Gamertsfelder.
