Defamation on the Internet

December 10, 2002 12:05 AM

The High Court of Australia has decided that you can defame someone in Australia by posting an article on a website hosted outside Australia, if that article is read by people inside Australia. I suppose this means that anyone posting on the internet is subject to Australian defamation law. (Unless you decide to block requests from Australian browsers.)
posted by grestall (13 comments total)

Those judges are stoopit assblankets.

Come and get me, boys.
posted by adamgreenfield at 12:25 AM on December 10, 2002

assblankets - heh heh. i've got a new word for the week. thanks adam.
posted by folktrash at 12:42 AM on December 10, 2002

More on Australian defamation law. [NSFW].
posted by eddydamascene at 12:44 AM on December 10, 2002

The US Supreme Court may decide whether businesses deserve the right to lie, like everybody else. The California Supreme Court said they don’t.
posted by raaka at 12:45 AM on December 10, 2002

Actually, the court only denied the request to move the case to the US -- which would have, of course, made it prohibitively expensive for the plaintif. No other decision has been made.
posted by krisjohn at 12:58 AM on December 10, 2002

No, the decision for the case to stay in the Supreme Court of Victoria wasn't decided on the basis of any expense to the plaintiff, Joe Gutnick. (He's not exactly poor.) The decision was largely based upon the nature of publication on the internet. (It's the first High Court judgement I've read which mentions IP addresses.) The point was that the publication occurs in Australia, and hence, that defamation can occur here too.
posted by grestall at 1:51 AM on December 10, 2002

This Australian case matches the way that existing libel law works: there are cases on file of foreign newspapers and journalists being successfully sued for libel in the British courts because as few as 100 copies had been imported into the UK. I'd quote chapter and verse but my copy of "Law for Journalists" is out on loan right now (IANAL, or a J for that matter).

The internet's a global medium; you can publish to the entire world with the press of a button. With great power should come at least some responsibility.
posted by Hogshead at 4:23 AM on December 10, 2002

From Justice Kirby's comments:

165. The notion that those who publish defamatory material on the Internet are answerable before the courts of any nation where the damage to reputation has occurred, such as in the jurisdiction where the complaining party resides, presents difficulties: technological, legal and practical. It is true that the law of Australia provides protections against some of those difficulties which, in appropriate cases, will obviate or diminish the inconvenience of distant liability. Moreover, the spectre of "global" liability should not be exaggerated. Apart from anything else, the costs and practicalities of bringing proceedings against a foreign publisher will usually be a sufficient impediment to discourage even the most intrepid of litigants. Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this especially if that judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture.

166. However, such results are still less than wholly satisfactory. They appear to warrant national legislative attention and to require international discussion in a forum as global as the Internet itself[202]. In default of local legislation and international agreement, there are limits on the extent to which national courts can provide radical solutions that would oblige a major overhaul of longstanding legal doctrine in the field of defamation law. Where large changes to settled law are involved, in an area as sensitive as the law of defamation, it should cause no surprise when the courts decline the invitation to solve problems that others, in a much better position to devise solutions, have neglected to repair.
posted by rory at 6:30 AM on December 10, 2002

Well, if that ain't interesting, nothing is.
posted by MiguelCardoso at 7:21 AM on December 10, 2002

You suppose wrong, Grestall. The short summary of the ruling is that if an Australian is defamed on the internet they may sue for defamation in Australia. Non-Australian plaintiffs (in the sense of having no business, residence, or assets in Australia, not necessarily being a citizen or even a human being, as companies can currently sue under Australian defamation law) can't sue in Australian courts. Australian courts don't have jurisdiction over non-Australian defendants.

So, assume Fred defames Judy. If Judy is not Australian she cannot sue Fred in Australia. If Fred is not Australian, Judy can sue him but only to the extent that Australian law can touch Fred. That is, a judgement may be entered against Fred but it is only enforceable in Australia, against Fred's Australian assets and interests.

Whether another country might enforce an Australian judgement is up to them. Generally nations are reluctant to enforce each other's laws, for all sorts of obvious reasons.

So what the case was about really was "where, for legal purposes, is the Internet?" and the answer that came back was "everywhere, including Australia". So publication on the Internet is to be treated by Australian law in the same way as would be printing out 8.5 billion copies of the statement and personally handing one to every person on Earth. Or at least, handing a copy to a few representative people in each legal jurisdiction on Earth, which is probably about a thousand copies, since in a lot of countries, states have separate laws.
posted by aeschenkarnos at 7:32 AM on December 10, 2002

Actually thinking about that I think I am wrong, a foreigner defamed by an Australian would be able to sue that Australian in an Australian court. But at least one of the parties must be Australian. In the present case, both were. The newspaper company does business in Australia, and the plaintiff is an Australian citizen (who also probably has overseas assets, come to think of it).
posted by aeschenkarnos at 7:37 AM on December 10, 2002

So publication on the Internet is to be treated by Australian law in the same way as would be printing out 8.5 billion copies of the statement and personally handing one to every person on Earth.

Not so sure that's the best analogy, because as anyone who publishes online knows, hypothetical reach does not equal actual reach. It's more like leaving a pile of pamphlets beside the door of your local library.

Well, if that ain't interesting, nothing is.

Tell it to da judge!

Come on, Miguel, it's not that impenetrable... "there are limits on the extent to which national courts can provide radical solutions that would oblige a major overhaul of longstanding legal doctrine in the field of defamation law". In other words, the Internet creates problems for traditional defamation law, but it's not up to the courts to fix those problems, it's up to legislators.
posted by rory at 8:09 AM on December 10, 2002

Seems to me that it's more like having a Dial-A-Fax that becomes internationally popular, but is still only on your fax machine in Iceland or Holland or wherever. Unlike a book publisher who intentionally sends copies to several countries, the publisher in this case is not going out of its way to distribute this work in any particular jurisdiction. The publisher is merely making the work *potentially* available anywhere in the world. The distribution is only completed (and automatically so) at the request of other parties.

So if I put a fax-on-demand message on my (hypothetical) fax machine in Buffalo that says Muhammad was a drunken lout, does that mean that I can be tried in absentia for insulting The Seal of the Prophets in Saudi Arabia? Does it mean that my (again, hypothetical) assets in Saudi Arabia may be legitimately seized, and a warrant put out for my arrest and execution, if someone in Saudi Arabia calls my fax machine to get this fax sent to them? If someone prints out my fax in Riyadh and mails it to a thousand of his closest friends, have I now "published" it in Saudi Arabia?
I think part of the confusion may lie with the popular term "cyberspace", which conjures up misguided notions of the Internet as an actual physical space. In reality, cyberspace is a psychological space which is beyond the jurisdiction of any state. It is only the physical elements of the system that evokes cyberspace - wires, servers, terminals, human bodies - that can be placed under government control, and the question of jurisdiction should be informed by that fact.

In any case, the Australian High Court decision is troubling for both the present and the future. In our present day of multinational media conglomerates, quite a lot of the global flow of information emanates from corporations that have seizable assets in many different countries. This decision, then, may very well make those companies (such as Dow Jones, Inc.) more reluctant to publish anything on the Web - and perhaps in print publications, if their Web editions mirror them - that might run afoul of the more stringent libel laws in many different (such as Australia or Britain). This already potentially messes with my right as an American to read something written by a fellow American and published on a web server in America.

In the future, such decisions may have a direct effect even on online publishers whose assets are entirely domestic, if international treaties (a la the Berne Convention) are signed by states to recognize and enforce each other's judgments in such matters. Since we are all published online (on Metafilter, if nowhere else), this precedent may end up affecting all of us. So for now, we should all celebrate our freedom to say that John Howard is a drunken lout. Unless you're from Australia, in which case you should stop reading this immediately.
posted by skoosh at 6:38 AM on December 14, 2002