Defamation

1. Cyberspace Law: Defamation

2. Introduction • In general terms the following must be present to establish defamation under Australian law: • 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 • the statement (or material) identifies the plaintiff • 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.

3. Defamation: Sources 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/info-sheet/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 While out of date (eg., Defamation Act 2005 (NSW) abolished distinction between ‘libel’ and ‘slander’),this provides a useful synopsis of defamation law focusing on parts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>

4. ‘Publication’ • 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 LawCitehttp://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.]

5. Case Study: Rindos v Hardwick 1994 • ‘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].’

6. Case study: Dow Jones & Company Inc v Gutnick[2002] HCA 56 • 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

7. Dow Jones v Gutnick(cont.) • 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.

8. Dow Jones v Gutnick: the majority judgement • 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.

9. Dow Jones v Gutnick: Other judge comments • 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)

10. Dow Jones v Gutnick: The result • 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

11. Defamatory meaning and imputations

12. Who can sue?

13. Who gets sued?

14. Flaming

15. Defences to a claim of defamation • Defences purely from Common law • Defences in Defamation Act 2005 (NSW)

16. Defamation Act 2005 Defences • 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

17. Defence of ‘innocent dissemination’/ publication • 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

18. Defence in the Broadcasting Services Act 1992 (Cth) • Take Down • Safe Harbour Scheme • Limits liability under state law.

19. Remedies • Damages • Apologies • Injunctions • Take down

20. Remedy: Injunction • 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)

21. Web intermediaries • Trkulja v Yahoo! Inc LLC & Anor [2012] VSC 88 (15 March 2012) • http://www.austlii.edu.au/au/cases/vic/VSC/2012/88.html