BarryODonovan.com

Following my blog entry on ratemyteachers.ie dated May 17, I was informed of a number of issues surrounding defamation law and the Internet by a friend of mine (who is a lawyer – I am not).

He backed up the assertion made by Fergal Crehan, Barrister-at-Law, in his article that a student acting as a moderator for a school listed on ratemyteachers.ie could have a legal action taken against him/her as an editor in a defamation case. I would reiterate here that as much as these moderators may feel that they remain anonymous there is in fact a trail that can almost always be followed to identify them. The alleged defamed person or an agent acting on their behalf can apply to the courts for such information to be made available by ISPs (Internet Service Providers).

It was also pointed out to me that hosting providers (i.e. companies that provide the necessary services to put websites such as ratemyteachers.ie on the Internet) can also become liable in a defamation case once they have been notified that content that they are hosting is or could be construed as being libel. A good example of how an ISP could become liable is the case of Godfrey v Demon Internet Ltd (the commentary may actually be more interesting).

As I mentioned in my first post, ratemyteachers.ie is hosted by Rackspace Ltd in the United States. However, they also have a British office and this arm of the company may be forced to take action as it is in the E.U. Aggrieved teachers should certainly consider mailing the British office by registered mail (always more effective than an e-mail) quoting Godfrey v Demon Internet Ltd at: Rackspace Managed Hosting, 8 The Square, Stockley Park, Uxbridge, UB11 1BA, England. And let me know how you get on.

There are now only 48 days left before EU Directive COD/2002/0047 which incorporates software patentability gets its second reading in the European Parliament. KDE.ie is keeping a record of how our MEPs are planning to vote at http://www.kde.ie/patents/mep-status.php and Ciarán O’Riordan has duplicated that list with references on the IFSO’s wiki at http://www.ifso.ie/cgi-bin/wiki.cgi/SwpatMepPositions – it’s time anyone who has yet to e-mail their local MEPs got off their arse and did it.

If they are voting against sotware patentability, thank them for their support. If they are voting in favour of software patentability then politely exppress your concerns and implore them to reconsider. If they are undecided then also exppress your concerns and ask them to apprise you (and pass that information onto me also please) of their eventual decision.

The reason that I emphasise local MEP is that your MEPs are required to answer all correspondence that they receive.

Justin Mason published an excellent quote on his weblog ( http://taint.org/ ) which I think is worthy of repetition here:

Mr. Justice Bradley, discussing US patent law in 1882:

The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favour. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures.

Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith.

Can the teachers do anything about this site?

Any student of the Irish educational system knows that it is desperately lacking some form of accountability or performance review system for its teachers. Throughout my thirteen years in primary and secondary school I had some great teachers, many good teachers, a few mediocre teachers and a couple of teachers who were simply useless. I always felt that if there had been some checks and balances for teachers that those few who were clearly not interested and/or capable of being teachers would have been taken out of the system.

Is www.ratemyteachers.ie such a system? And if so, is it the correct system? In my opinion – absolutely not. On both counts. ratemyteachers.ie is one of the most despicable sites I have ever seen. It allows any person (whether a past/present student of a particular teacher or an Eskimo sitting at his computer in his igloo at the North Pole) post any comment anonymously. Yes, this comment can be constructive or even flattering. But it can also be personally insulting and hurtful. I can only begin to imagine the kind of stress, self doubt and sleepless nights these kind of comments could cause.

Aren’t all of the comments moderated? Yes. But by whom? How do they qualify and what qualifications must they possess? It is my understanding that the first student to try and rate a teacher in a school yet to be added to ratemyteachers.ie automatically becomes that school’s moderator. They require no qualifications and the school has no input into the choice. This student may very well be a leaving certificate student wishing to tell the world how great her English teacher is and she may make a very good moderator. It is also possible that this first student is the fourteen year old self-appointed class clown with a number of grudges to bear.

These moderators should also be aware of the possible legal situation they have placed themselves in. By moderating for a school you may have placed yourself in the position of being an editor under the terms of defamation law and you may indeed be liable for all comments posted that relate to that school. There was an excellent article written by Fergal Crehan, Barrister-at-Law, in the technology section of the Irish Times on April 29 of this year about libel liability and the Internet. His original blog entry covering much of that article can be found at http://www.tuppenceworth.ie/blog/2005/04/libel-liability.html .

And moderators, do not believe for one second that the Internet hides your identity – there is a simple trail that can be followed from ratemyteachers.ie back to your computer that can be obtained with a court order. If you have performed your moderation duties from a school computer laboratory then the chances are that the school already has the necessary information to identify you even if they do not yet realise it. If I were you, I would hand over your moderation username and password to one of your teachers and hope none of them decide to take legal action against any defaming comments.

So what can be done about this site?

The first question is should the teachers do anything at all? Some commentators believe that by attempting to have it taken down or campaigning against it, all the teachers achieve is to give it more publicity and credence. The put your head in the sand approach never held any water with me.

Then the second question becomes just what can they do about it? There is always the legal route but it’s difficult as the site is actually hosted in the USA and it would also prove a very expensive operation. There are a number of outwardly offensive measures that could be considered such as denial-of-service attacks but these may be illegal in this jurisdiction or in the US (I’m not a lawyer).

If the teachers do not want to risk the expense of taking legal action and the possible legal implications of an out-and-out attack then perhaps they might consider making it more difficult for the people behind ratemyteachers.ie to maintain it by lobbying those that provide the Internet services that support it – the site itself is hosted by Rackspace Ltd – www.rackspace.com – a web hosting provider with offices in the US and the UK.