Internet Service Provider Liabilty: Whether ISP liable under defamation(libel) or not.

An ISP does not liable for the libel defamation because naturally or generally they do their duty only what the materials/information have been provided to their service and they doesn’t observing or monitoring all the information that they sending to their user or subscriber. They does doing their job as a courier of the information that have been provided by other party or its subscriber without doing any observation or doing editing to any information that provided to them.

In the case of Smith v California, an ISP is presumed similar like a book shop owners which is not liable for the liability on defamation on libel. The reason is the owner’s of book shop does not know all the contains of information in all of the books in their shop. The owner of a book shop is not a publisher that have the obligation to observe or control all the contains in the all books that they are sell. Similar to an ISP, an ISP is only as a courier or seller of the information provided to them by their subscriber or others internet user. It is a difficulty to the ISP to control or observe all the contain of the information that provided by third party like its subscriber. In the case of Cubby Inc v CompuServe Inc, the court held that CompuServe as an ISP, does not liable for the defamation of libel that have been provided by its subscriber. The court held that CompuServe is similar like a owner of book shop, newspaper seller or a librarian in public library. They does not rationally expect as have all the eyes, observation and energy to control all the contains of all the information that being provided to them.

But, if the ISP promoted their self as a controller and distributor and trying to filter, editing and observing all the messages or information in their websites, they must responsible and liable for the defamation action against them. Their position is same like a publisher that must take control, observe and edit all the messages or information in the book that will be published. In the case of Stratton Oakment v Prodigy Service, the court held that Prodigy as an ISP was liable under defamation because they had promoted their self as a controller provider to their subscribers. Their position is same like a publisher because they try to control all the information and messages that send to their site. But, in USA, the judgment of this case was protested by the section 230 of the USA Telecommunication Act 1996 which provided that the ISP does not liable under defamation even though they try to control all of the unwanted information and messages that comes to their site.

In Zenan v American Online, the court held that an ISPis exclude from the liability of all messages or information that have been provide by third party like subscriber and other internet users. The exception only for the ISP, not for the people that written or spread the information that is absolutely liable for the libel defamation. In Varian Medical System v Delfino , two researcher had found guilty on the act of spreading thousand of defamation messages in the website.

Important to say, if the ISP has realized the defamation information, the must delete the information, if they does not doing that or attempt or make an effort to delete that , the ISP also have the liability of the defamation. In the case of Godfrey v Demon Internet Ltd, the obscene and deflation was realize by the ISP, notice have been given to the ISP to delete the information, but the ISP does not take their action to delete the obscene and defamatory material, and the court held that the Demon has liable.

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Animal Trust? Whether animal can be the beneficiaries of a trust or not.

Actually, a gift for specific animal or animals may constitute a valid non-charitable trust. On the other hand, trust for animals generally could be charitable if we look in the case of Re Wedgewood [1915] 1 Ch 113, the court held that trust for animals generally could be charitable,  principally because they “tend to promote and encourage kindness…and …stimulate humane and generous sentiments I man towards the lower animals, and by this means…promote feelings of humanity and morality generally, repress brutality, and thus elevate human race”. Besides, a trust for the maintenance of animals generally may qualify as a charitable trust, but trusts for the maintenance of a specific animal or animals may be valid purposed trusts. Specific animals include a cat, dog or horse. Furthermore, if we look into the three cases of Re Doughlas (1887) 35 Ch D 472, Re Moss [1949] 1 All ER 495 & Re Murawski Will Trust [1971] 1 WLR 707, the followings trust have been held to be charitable: for a home lost dogs, for the welfare of cats, an for protection of animals from ill-usages, cruelty and suffering. In order to be valid, the trust must either lead to the relieving of suffering of animals or its must not restrict access to public to view the animals.

Meanwhile, in the case of Murdoch v AG (Tasmania) (1992) 1 Tas R 117, SC (Tas), Zeman J explained “…a gift for the benefit of animals is not charitable per se. Something more, by way of a benefit to the community, is required. If the object of the gift is to prevent cruelty t animals such a benefit of animals would readily be perceive…Certain things which might be done for the benefit of animals are of no benefit to the community and may even be contrary to the best interests of the community. It is not enough to say that some things done for the benefit of animals will be for the benefit of the community”.

Importance to says, in the case of Re Grove-Grady [1929] 1 Ch 557, which the decision of this case will not be followed today is about a gift to a society to provide refuge to animals and birds free from human molestation. The English Court of Appeal held that the trust failed as it was not in the public benefit.

So, from the above case especially in Murdoch v AG & Re Grove-Grady, we can see in per se. that the court had depress that the charitable trust for animals must gives or brings the public benefit to the society. But, we must notice that there are still in certain circumstances that the trust to animal or animals can be a valid trust.

So, like I said before, a gift for specific animal or animals may constitute a valid non-charitable trust, but on the other hand, trust for animals generally could be charitable because there still an exception we can found in non-charitable trust, the exception follow the Common Law and also has been accepted in Malaysia. So, in easy words  there are certain circumstances that the trust for the animal can be valid although it doesn’t give the benefit to the human. There are the maintenance of specific animals, tombs and monuments and trust for the purpose of Chinese ancestors pray. In the case of Pettingal v Pettingal (1842) 11 LJ Ch 176 , the court held the trust is a valid where the one of the trust includes the gift£50 per annum to maintain the testators’s  favourite black mare. Besides, a lot of cases like in for the upkeep of the testator’s horses in Milford v Reynold (1848) 16 Sim 105, specific cats in Re Haines (1952) The Times , November 7, and an annuity £750 for the upkeep of the testator’s horses and hounds for a period of 50 years in Re Dean (1889) 41 Ch D 552. The last case “has been accepted as authority are valid for the perpetuity period; and its believed that this exception to the general rule has been relied on countless cases since Re Dean...:>End.

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Certainty of Subject Matter & Object

Certainty of subject matter

A trustee must be able to identify precisely the trust property he is to hold on trust. Doubt as to the quantum may result in the trust failing to satisfy the requirement. In the case Palmer v Simmonds, the word "bulk" show the uncertainty on how much should the property be given to the beneficiary, the court held that it is not sufficiently certain for the purpose to create trust.
Meanwhile, in Sprange v Barnard, the court held that the remaining part was left and it is not sufficiently certain, thus the husband took beneficially. In the case Jackson v Hamilton, the word "reasonable income" can be said as a certainty of subject matter.

Certainty of the Object

-refers to whether the beneficiaries who will receive the benefit can be clearly ascertained.
In the case Morice v Bishop of Durham, it was stated every trust must have definite object. There must be somebody, in whose favour the court can decree performance.
- non-charitable purpose are invalid unless they fall into limited exceptions.

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Requirements of the Trust

Certainty 
3 certainty must be satisfied : ( based on the case Foreman v Hazard)
1. certainty of intention to create a trust
2. certainty of the subject matter
3. certainty of the object

Certainty of intention
- no particular words is required to created a trust (equity looks to intent rather that form)
- " a trust can be created by any language which is clear enough to show an intention to create it" (Halsbury's Law of Malaysia)
- the words used to convey the intention must be sufficiently expressive.
In the case of Quah Eng Hock v Ang Hoi Kiam, the court referred to the need for the words used to be clear & unequivocal & held that words indicating that the donor intended to divest himself
or herself of the beneficial interest woul be sufficient for the purpose.

In Comiskey v Bowring-Hanbury, majority House of Lords held that a trust had been created & on the death of the widow, the property would pass to the nieces as provided for in the will.
Besides, in the case Re Chianch Ke Hu, the expression " I direct my executorto distribute among such persons professing or practising the Budist religion..." was held that words were sufficiently imperative as to create a trust, although it failed as there was uncertainty in relation to the object.

To be continue..

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The distinction between Trust & Bailment

A bailment is to be distinguished from a trust in that it only confers possessory title to property, rather than proprietary right, upon a bailee. A bailment will not, in itself, create a trust. If the property is expressly conferred to a bailee for the benefit of third parties, then a trust in favour of the third parties may arise. However, the mere transfer of possession is, in itself sufficient. A bailment confers possession of property to a third party for certained  defined purposes.  Common Law will enforce a breach of the terms of the bailment specifically create a trust, no equitable relief will be available.

The distinction between trust & bailment is well evidenced in the dealings that a trustee & bailee may have with third parties. A trustee may pass the property on to an innocent third party purchaser. A bailee cannot pass any proprietary title on becouse a bailee only holds a possessary title. Furthermore, a bailment  can only arise with respect to personal property, whereas a trust can be created over real or personal property.    

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NST Online Legal victory for land owners

NST Online Legal victory for land owners

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