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The Impact of Uniform Defamation Laws on Cyber Defamation

This article explores the implications of uniform defamation laws on cyber defamation issues, highlighting jurisdiction, the role of online intermediaries, and the statutory innocent dissemination defense. It examines Australia's transition from fragmented state regulations to a standardized federal approach initiated in 2004, referencing landmark cases such as Dow Jones v. Gutnick. It discusses the involvement levels of various online entities and compares Australia’s position to that of other major jurisdictions like the US and UK, emphasizing challenges and proposals for reform in online defamation law.

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The Impact of Uniform Defamation Laws on Cyber Defamation

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  1. CyberDefamation The Impact of the Uniform Defamation Laws

  2. Agenda • Uniform defamation laws - key cyberdefamation issues: • jurisdiction • online intermediaries • Intermediaries - previous Australian position • Statutory innocent dissemination defence • Position in other major jurisdictions

  3. Uniform defamation laws • Previously fragmented by state/territory • Proposals to standardise • Federal proposals (March 2004) • State/territory model – SCAG • Defamation Act 2005 (NSW) (commenced 1 January 2006) • Now implemented in all states and territories

  4. Uniform defamation laws (cont) • Jurisdiction and choice of law in Australian defamation law • Dow Jones v Gutnick (2002 HCt) • Previous forum-shopping • Uniform Defamation Act position: • Multiple publications – closest connection test (s 11) • Statutory lis alibi pendens rule (s 23)

  5. Online intermediaries • Range of levels of “involvement” with publication • Mere “common carrier” • Host • Online publisher of anonymous content • Chat room operator • Review publisher • Blog publisher • Online newspaper/portal publishing third party content

  6. Online intermediaries (cont) • “Publication” in defamation law • Breadth of concept • Application in online context: • Common carrier: Bunt v Tilley (2006 UK HCt) • Frawley v State of NSW (2006 NSW S Ct)

  7. Online intermediaries (cont) • Previous law – common law innocent dissemination defence • Three-part test: • Innocent of knowledge of defamatory nature of material • Nothing in material or circumstances which should have led defendant to suspect it contained a defamation • No negligence in dissemination • Thompson v ACTV (1996 – HCt)

  8. Online intermediaries (cont) • Previous law: • Broadcasting Services Act 1992 (Cth) Schedule 5 clause 91 • Law of state or territory has no effect if • subjects ISP or ICH to liability where not aware of the nature of the Internet content; or • requires ISP or ICH to monitor/make inquiries about or keep records of the Internet content • Effect on defamation liability? • Federal report (2004) accepts relevance • Defamation Act 2005 s 6(2): act does not affect the general law unless provides otherwise

  9. Statutory innocent dissemination • Defamation Act 2005 – s 32 • Three-part test: • Defendant published matter merely in capacity of a “subordinate distributor” • Defendant neither knew, nor ought reasonably to have known, that the matter was defamatory • Defendant’s lack of knowledge was not due to negligence

  10. Statutory innocent dissemination (cont) • “Subordinate distributor” • Three-part test: • Not the “first or primary distributor” • Not the author or originator • Did not have the capacity to exercise editorial control over the matter before it was first published

  11. Statutory innocent dissemination (cont) • “First or primary distributor”: • Will not be considered to be first or primary distributor merely because involved in capacity of: • Newsagent, librarian etc • Broadcaster of live programme where no effective control • Provider of services by means of which matter is made available in electronic form • Operator of communications system whereby matter is “made available by another person over whom…the provider has no effective control”

  12. Position in other jurisdictions • US • Early cases (Cubby, Stratton Oakmont) • Communications Decency Act 1996 (US) s 230

  13. Position in other jurisdictions (cont) • UK • Defamation Act 1996 (UK) s 1 • Godfrey v Demon Internet (2001)

  14. Questions?

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