David S. Brandt Claimant v Claude Hogan Tony Glaser Defendants [ECSC]
| Jurisdiction | Montserrat |
| Judge | LEIGERTWOOD-OCTAVE J |
| Judgment Date | 05 March 2012 |
| Judgment citation (vLex) | [2012] ECSC J0305-2 |
| Court | High Court (Montserrat) |
| Docket Number | CLAIM NO. MNIHCV 2001/0031 |
| Date | 05 March 2012 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. MNIHCV 2001/0031
The internet is a new phenomenon2. In January 1997, in the foreword to the first edition of Gringas: The Laws of the Internet3, Hon Sir Richard Jacob had this to say, "Judging by some of the stuff one reads — particularly from journalists — the Internet will throw laws, or many of them into chaos". Whether that statement applies to the law of defamation is still undecided but one of the issues in this case begs the question.
The Claimant ["Mr. Brandt"] is a former Chief Minister of Montserrat and a practising barrister and solicitor on the island.
The Second Defendant ["Mr. Glaser"] is a medical doctor who lived and worked in Montserrat from 1981 to 1983. Sometime in 1995, Mr. Glaser"], a medical doctor set up an online email group called "The Electronic Evergreen", also referred to as "MNI-INFO". The First Defendant ["Mr. Hogan"] was a member and subscriber of the Electronic Evergreen.
On 31st July 2001, Mr. Hogan posted the following email message ["the Hogan posting"] on the Electronic Evergreen:
'Hi Folks,
By now you are all aware that the name former Chief Minister frightens me. Only this past week David S. Brandt again passed off as a member of a Government delegation which traveled to St. Maarten for talks with the AUC's, Mr. Tien.
DBS did not travel with the Government delegation, but apparently he is a lawyer for the proposed Tien operation for Montserrat was in St. Maarten at the same time.
By now you would have read the Reporter's abstract of the ludicrous set of concessions sought from the GOM which DSB as a Montserratian could not have drafted. Then again you never know.
The point is however there seems to be some force so anti-British and so unkind to the Montserratian people that the island is offered to the Chinese. I guess the pay-off will come in the form of legal fees.
Claude H.'
On 1st October 2001, Mr. Brandt filed a defamation claim against Mr. Hogan and Mr. Glaser, in relation to the words contained in the Hogan posting, alleging that Mr. Hogan had falsely and maliciously written the posting and had published it. As the administrator of the Electronic Evergreen, Mr. Glaser was responsible for receiving the posting and for disseminating it to its members, thereby publishing it electronically. Mr. Brandt claimed damages for injury to his character, credit and reputation.
Mr. Hogan's defence was that the words complained of in the posting were not defamatory.
In his Defence, Mr. Glaser admitted setting up Electronic Evergreen as a subscription only email list but denied that he had disseminated or published the Hogan posting electronically or at all. His case is that his role in relation to the Electronic Evergreen was permitting someone to join the email group. The posting of members' email messages was an entirely automatic electronic process in which he did not and could not participate.
His alternative contention is that the words in the posting are true in substance and in fact.
It is appropriate to state at this point that at the commencement of the trial, Mr. Cassell informed the court that Mr. Brandt was no longer proceeding against Mr. Hogan and that Mr. Kelsick had been so advised in writing. Mr. Hogan however remained a party to the action as no application was made to discontinue proceedings against him.
There is one issue common to most defamation claims that the court does not have to determine and that is whether or not the words contained in the Hogan posting were defamatory, because at the beginning of his closing address, Mr. Kelsick conceded that they were.
That leaves as the critical issue whether Mr. Glaser had published the Hogan posting. If it is found that that he did in fact publish it and that he could not rely on the defences innocent dissemination, justification or fair comment for doing so, then the court would have to go on to determine the amount of damages that should be awarded to Mr. Brandt.
It is common ground that the Hogan posting was published on the Electronic Evergreen and to be able to conclude who could be said to have published it, evidence relating to its nature and how it functioned is particularly relevant. Neither side adduced any expert technical evidence during the trial.
On the Claimant's side, although Mr. Brandt admitted in cross-examination that he did not understand the difference between a website and an email list, he knew that Mr. Glaser had started and set up the Internet service and maintained it. He was aware of the technical ability to control or edit it. No one could join without his permission and he alone could put people on the system and take them off. He believed that Mr. Glaser had set it up in such a way that any member of the list could publish what they wished including libel. Mr. Glaser was the founder, solicitor and facilitator of the list.
Mr. Glaser gave the background to the Electronic Evergreen. In 1995, after learning of the volcanic crisis on Montserrat, Mr. Glaser stated that on his own initiative, he had started an email group called the Electronic Evergreen to help the friends and relatives of Montserratians all over the world to find out what was going on in Montserrat. He chose the name Electronic Evergreen because he felt it should be like the old Evergreen Tree in Plymouth. The Evergreen was a place where you would run into pretty much run into everyone, and where you could catch up on news and gossip, and generally feel that you were part of the life of Montserrat.
At first he just sent email messages on his own but then he was offered the resources of Gem Radio's computer system, which allowed email messages to be automatically forwarded to anyone who wanted to receive them. On his own initiative he created a forum so that persons in Montserrat could communicate with persons all over the world and over 500 persons joined this group.
[16] Mr. Glaser described the Electronic Evergreen as being nothing more than an email group. If someone wanted to join the group or "list", as it was also referred to, he would tell a central computer called the "list server", which Mr. Glaser believed to be located in Wisconsin in the United States, to send mail to that person. If they wanted to leave the list, he would tell the list server. Mr. Glaser told the list server who was and who was not a member of the list, he did not own, lease or control it in any other way.
He compared the list server to the Post Office which allows someone to send mail to other people and to receive mail from other people, looks after getting the mail delivered, not opening or reading the mail but just passing it along. Material is "posted" in the same way as you would post a letter. There is no possibility of "removing" aposting or taking it out of the public domain, anymore than you can "remove" a letter that you had mailed at the Post Office, it could not be retrieved or accessed by anyone.
As the coordinator of the Electronic Evergreen, Mr. Glaser compared his role to that of the Post Master. He looked after the system and made sure it kept running but he did not handle or deliver the mail himself. Each member of the list was aware of the basic functioning of the Evergreen Electronic, because Mr. Glaser's welcome message to them included this statement,"This is an unmoderated group — that is, I do not and cannot screen or edit messages, and I received them at the same time as everyone else".
Because of the way that the Electronic Evergreen was set up it was technically impossible for him to read the email messages before they were delivered. The email messages were forwarded without any human intervention at all. It was not possible for Mr. Glaser to stop any mail that a member had sent from reaching its destination or from reaching all the other persons on the list. It was handled entirely by the list server. The email messages did not pass through his hands or his computer on the way, he could not open, read or censor them before they were sent on. It was on that basis that Mr. Glaser maintained that he could not be responsible for the posting because he did not write, publish, forward or disseminate it.
Once someone had joined the list they could send an email to the list server and it would automatically send the email to every other member of the group. Unless you were subscribed to the group at the time the posting was made, you could not read it. As a member of the Electronic Evergreen he had received the posting complained of and there was a choice to click on "reply" or to make a comment. A member received the email at the time it was written, or not; it was a one-time, non-repeatable phenomenon. The material would never and could never be sent again, unless someone copied it by replying to it. In his case he had sent a response on 31st July 2001 disagreeing with the posting and he had replied to Mr. Cassell.
Several of the questions put to him in cross-examination focused on the way that the Electronic Evergreen was set up. He agreed that the way it was set up there was no way of telling what someone would post but denied that he had had set it up that way.He answered that he did not actively make a decision to set it up like that, instead it was the default way the whole set up at that was the way it operated. He was challenged on his answer that he had set it up with the assistance of other people when it was put to him that he had always maintained that he was one who had set it up. When asked if as a result of the way the Electronic Evergreen was set up, it was possible for a member to libel someone; his response was...
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