Defamation and the Internet
Defamation laws seek to balance the protection of individual reputation with freedom of expression and are generally governed by geographically defined jurisdictions. The internet, on the other hand, reaches beyond the borders of any one country and as such, poses a challenge to the longstanding laws of defamation.
Dow Jones v Gutnick
- Since 2002, Australian courts have taken the lead when it comes to defamation on the Internet. The High Court decided in Dow Jones v Gutnick that a plaintiff has a cause of action for a publication on the Internet anywhere where the publication can be downloaded and, ergo, read.
- The case was essentially a jurisdictional argument with Dow Jones submitted that the appropriate forum was the US because that is where the article, allegedly defamatory of Gutnick, had been uploaded and hence made available to Internet users.
- The High Court unanimously rejected this argument.
The end of publishing on the Internet?
- The Dow Jones decision resulted in many commentators forecasting doom and gloom and insisting the decision would result in so many law suits that it would have a chilling effect on Internet publications.
- In practice, some jurisdictions such as the US do not have plaintiff-friendly defamation law, it remains costly to bring defamation proceedings in a foreign country and damages the plaintiff receives in a foreign jurisdiction will be substantially less than those potentially received in the plaintiff’s home jurisdiction where the plaintiff has pre-existing reputation.
- Most Internet users also tend to be engaged in the concept of the information highway and the free exchange of ideas.
- To date, therefore, Dow Jones has not had a noticable impact on Internet publication.
Other Australian Cases involving Defamation and the Internet
This was a decision by the Court refusing to grant an injunction to restrain publication of matter on the Internet. It held that to do so would be to superimpose the law of NSW relating to defamation on every other state, territory and country of the world.
This was the first defamation case in Australia concerning postings on an Internet bulletin board.
For more information on Defamation and the Internet, please refer to Electronic Frontiers Australian - Defamation Laws & the Internet
