Transcript Introduction - Cyberspace Law and Policy Community

Cyberspace Law:

In general terms the following must be present to establish defamation
under Australian law:
1. A defamatory statement (or material) or an imputation.
Section 8 of the Defamation Act 2005 (NSW) requires that imputation
is the basis of the cause of action
2. the statement (or material) identifies the plaintiff
3. the statement (or material) is published to a third person, i.e. at
least one person other than the plaintiff.
Section 8 requires imputation is made by means of its publication.
For an overview of defamation law and defamation on the Internet:

ArtsLaw Centre provided a good introduction to the new law, ‘Defamation law (for material published after
January 2006)’, Information Sheet, undated, at: <http://www.artslaw.com.au/info-sheets/infosheet/defamation-law-for-material-published-after-january-2006/>

ALC also offer ‘Legal Issues for Bloggers’, which include defamation:
<http://www.artslaw.com.au/info-sheets/info-sheet/legal-issues-for-bloggers/>

See also Queensland Public Interest Law Clearinghouse, (2009) ‘Defamation Factsheet’,
<http://www.qpilch.org.au/resources/factsheets/Defamation.htm>
(Note potential for minor differences with the Qld version of the Defamation Act 2005.)

Pearson, Mark (2007, July) ‘A review of Australia’s defamation reforms after a year of operation’. Australian
Journalism Review 29 (1).
<http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1253&context=hss_pubs>

Timothy Arnold-Moore `Legal Pitfalls in Cyberspace: Defamation on computer networks' Journal of Law &
Information Science, V5 No2 (1994) <http://www.austlii.edu.au/au/journals/JlLawInfoSci/1994/12.html>
While out of date (eg., Defamation Act 2005 (NSW) abolished distinction between ‘libel’ and ‘slander’),
this provides a useful synopsis of defamation law focusing on parts relevant to cyberspace.

US Internet cases based on quite different US law and its Constitution (in particular the First Amendment), often
not directly applicable in Australia, but sometimes dealing with issues not yet considered in Australia:
<http://www.digestiblelaw.com/blog.aspx?topic=14&All=null&IsListParentTopic=true>

See also: Republication; ‘Mere distributor’ and innocent dissemination


Defamatory statements or material must be ‘published’ if there is to be a cause of action.
Once a person views material which has been uploaded, sent or posted on the Internet, that
material is regarded as having been published (see Rindos v Hardwick below).
Where a person views the material may determine where publication takes place, which is of
significance in determining which court will have jurisdiction.
This issue is exemplified in Dow Jones & Company Inc v Gutnick [2002] HCA 56, see below.
Courts also consider principals to have published material that has in fact been published by their
agent (Webb v Bloch (1928) 41 CLR 331).
Arnold-Moore in `Legal Pitfalls in Cyberspace: Defamation on computer networks' suggests that
this could mean that employers “who are usually the operators of computers…are liable for
defamatory statements made by their employees in the course of their employment”. However,
there is no case law on this matter.





[To find Australian cases from name or citation, use LawCite http://www.austlii.edu.au/lawcite/,
CaseBase or Firstpoint. Insert the citation or name into the relevant field. When you get a LawCite
record for the right case, click in the green link in the citation to open the full text.]

‘These defamatory remarks were published in academic circles
throughout the world… the nature of the remarks is such that
they are likely to be repeated, and that any rumours of a like
kind that had circulated previously were likely to gain strength
from their publication [on the Internet].’





10 December 2002 High Court handed down its famous judgement in the
case of Dow Jones & Company Inc v Gutnick [2002] HCA 56.
Appellant, Dow Jones, publishes Wall Street Journal and Barrons
magazine and an online news service, Barrons Online
Respondent is a prominent Victorian businessman. Most of his business
affairs in Victoria, but he has overseas interests, including in USA.
28 October 2000 Dow Jones publishes article ‘Unholy Gains’ - accuses
Gutnick of improper business dealings with convicted tax-evader and
money-launderer Nachum Goldberg.
Article also appeared on publisher’s web site. Appeared to be accessed
by numerous Americans and ~300 people in Victoria, as well as 14 people
that had purchased the magazine




Victorian online subscribers helpfully pay by credit card for access to
articles – useful documentary evidence trail in credit card transaction
details and associated physical addresses (eg home address).
Established with less uncertainty than if web server logs are only source,
that readers reside in Victoria and hence subject to Victorian law.
Gutnick sued Dow Jones for defamation in the Supreme Court of Victoria,
and limited his claim to loss of reputation he suffered in Victoria.
Principal issue before the Court: whether defamation action should
proceed in Victoria, NY where article was written or New Jersey where
the article was uploaded onto Dow Jones’s web servers. While this case is
mainly about jurisdiction and the Internet, it is nonetheless relevant to
the issue of online defamation.

Gleeson CJ, McHugh, Gummow and Hayne JJ issued joint judgement,
held: defamation occurred in place where damage was suffered,
coherent with established legal authority:


It is only when the material is in comprehensible form that the damage to reputation is
done… In the case of material on the World Wide Web, it is not available in comprehensible
form until downloaded on to the computer of a person who has used a web browser to pull
the material from the web server. It is where that person downloads the material that the
damage to reputation may be done… that will be the place where the tort of defamation is
committed. (para 44)
They also rejected appellant’s claim that if jurisdiction was granted in
Victoria then publishers all over world would potentially be liable to be
sued in multiple jurisdictions every time they published something on the
Web as being inconsistent with the above principle.




Gaudron J agreed with Gleeson CJ, McHugh, Gummow and Hayne JJ and
made further comments about American ‘Single-Publication rule’.
Kirby J, while not dissenting, adopted more prudent approach. Noting
the global nature of Internet, he suggested ‘basic lack of locality suggests
need for a formulation of new legal rules to address the absence of
congruence between cyberspace and the boundaries and laws of any
given jurisdiction’ (para 13).
Kirby called for both national legislation, and the eventual development
of an international agreement in the area of Internet defamation.
Callinan J like the others agrees that the defamation case should be
heard in Victoria. He notes:

A publisher, particularly one carrying on the business of publishing, does not act to put
matter on Internet in order for it to reach a small target. It is its ubiquity, which is one of
the main attractions to users… [publishers] are not obliged to publish on the Internet. If the
potential reach is uncontrollable then the greater the need to exercise care in publication.
(at para 182)
The High Court unanimously dismissed the appeal and
Gutnick is was now free to sue Dow Jones in Victoria, under
Victorian law.
 He eventually achieved a small settlement ($400k).
 Full text:
http://www.austlii.edu.au/au/cases/cth/HCA/2002/56.html



Defences purely from Common law
Defences in Defamation Act 2005 (NSW)









See Part 4 Div 2:
25. Defence of justification
26. Defence of contextual truth
27. Defence of absolute privilege
28. Defence for publication of public documents
29. Defences of fair report of proceedings of
public concern
30. Defence of qualified privilege for provision of
certain information
31. Defences of honest opinion
32. Defence of innocent dissemination
33. Defence of triviality



Case Study: Thompson v Australian Capital Television Pty Ltd
& Ors
‘It is true that Channel 7 did not participate in the production
of the original material constituting the program. But
Channel 7 had the ability to control and supervise the
material it televised... it by no means follows that Channel 7
was merely a conduit for the program and hence a
subordinate disseminator. It was Channel 7's decision that
the telecast should be near instantaneous, a decision which
was understandable given the [current-affairs] nature and
title [‘The Today Show’] of the program but which was still its
decision.’ (at 590)
Case Study: Godfrey v Demon Internet Ltd



Take Down
Safe Harbour Scheme
Limits liability under state law.




Damages
Apologies
Injunctions
Take down


Case Study: Macquarie Bank Ltd & Anor v Berg
‘An injunction to restrain defamation in NSW is designed to
ensure compliance with the laws of NSW… Such an
injunction is not designed to superimpose the law of NSW…
on every other state, territory and country of the world. Yet
that would be the effect of an order restraining publication
on the Internet… It may very well be that, according to the
law of the Bahamas, Tazhakistan, or Mongolia, the
defendant has an unfettered right to publish the material. To
make an order interfering with such a right would exceed the
proper limits of the use of the injunctive power of this court’
(at para 14)


Trkulja v Yahoo! Inc LLC & Anor [2012] VSC
88 (15 March 2012)
http://www.austlii.edu.au/au/cases/vic/VSC/2
012/88.html