1 July 2016

Defamation and the Internet

Mark Jones
Mark Jones

The laws of defamation as they apply to the internet are to a large extent still in the formative stage as both legislators and the justice system scramble to keep pace with wholesale changes in the way individuals now communicate with one another and the world conducts business.

The legal system has had to adapt to the changes brought about as a consequence of the digital information age and advances in technology.  With the introduction of email communications, Google, and Facebook, vastly different legal considerations now apply in virtually all facets of life.  The virtually instantaneous nature of mass communications afforded as a consequence of the World Wide Web has for example now meant that defined legal boundaries are no longer as rigid as they perhaps once were.  This is best illustrated by reference to the decision of the High Court of Australia in Dow Jones & Company –v- Gutnick in 2002

The decision has helped to address some of the issues arising in respect of multiple jurisdictions.  In that matter the plaintiff, Mr Gutnick sued the publishers of the financial magazine Barron’s which was an online subscription service circulated largely in the United States of America.  However a limited number of subscribers were based in Australia where Mr Gutnick instituted his defamation proceedings.  He alleged that he was defamed in a Barron’s article entitled “Unholy Gains”.

For certain strategic reasons the defendant sought to have the action heard and determined in the United States of America and consequently it made application to have the proceedings in Australia permanently stayed on the basis that the plaintiff ought to have instituted proceedings in the United States where its web server was located.

On the hearing of the appeal by the High Court however the majority of the Court held that damage to reputation occurs in the place where the defamation occurs.  They rejected the notion that the place where the cause of action arises is principally determined by reference to the publisher’s conduct.  They preferred the view that ordinarily the defamation occurs where the material can be downloaded and as a consequence damage is thereby done to the plaintiff’s reputation.  Further it was determined that due weight must be given to the question as whether or not damage to reputation will result in a substantial award of damages.  Unlike in Australia, Mr Gutnick was relatively unknown in the United States.

By reason of the above findings the Court also rejected the argument advanced by Dow Jones that those publishing on the web would be forced to have regard to the defamation laws of every country where their material could be downloaded.

The Courts, both in Australia and in other parts of the world, continue to grapple with the culpability of internet search engines and internet service providers (ISP’s).  What seems apparent as a consequence of recent decisions emanating from the United Kingdom is that the question of whether an ISP is or is not a publisher and therefore liable for defamatory content is “fact sensitive”.

This article has been prepared to provide a general overview of this topic and is not intended to provide, nor does it constitute, legal advice. You should seek legal advice before acting on or using the content of this article. Should you require legal advice on matters raised in this article please contact Mark Jones – Special Counsel on (07) 3001 2943

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