Defamation laws have developed over several centuries to provide recourse for people whose reputation is or is likely to be harmed by publication of information about them.
In theory, the objective of defamation laws is to balance protection of individual reputation with freedom of expression. In practice, defamation laws are frequently used as a means of chilling speech. A threat of (costly) defamation proceedings and damages, whether or not a plaintiff’s claim is likely to be upheld by a court, is often used to silence criticism not only by a particular person or group but also as a threat to others.
Like almost all other laws to date, defamation is defined within jurisdictions that are based on geographical areas. The Internet is inherently trans-border in nature, with both push technologies like email and pull technologies like the web unconstrained and indeed unconstrainable by state or national borders. The cyberspace era presents challenges to longstanding laws far greater than did the broadcast media of radio and TV.
Russell had mentioned to me the HCA decision of Dow Jones Company Inc. v Gutnick [2002] HCA 56 (10 December 2002).
It is a most relevant case with the main issue being whether Mr Gutnick, who was defamed on a US internet site, could litigate the matter in Victoria, where the offending article was naturally still accessible via the internet. The respondents raised a free speech argument as it is embodied in their First Amendment. I was very interested to read the Court’s comments about this argument, (which Callinan J called ‘American legal hegemony’) which accord with the concerns I raised about the USA dominance over the internet in The Limitations Of Internet-wide Search Engines.
For a nice case note on Gutnick have a look at this MULR note by Professor Brian Fitzgerald.
Please also see defamation in e-mail.
Click here to read about this topic in the context of blogging.
I recall studying Dow Jones v Gutnick in Conflicts of Law so here are some extra notes:
Defamation Harm to reputation is done when a defamatory publication is comprehended by the reader, listener or observer. Until then no harm is done. Therefore it is a bilateral act.
For the purposes of the tort of defamation, a defamatory article placed on the internet is published in the place where the article is downloaded. This is the place where the tort is committed.
Undisputed principles 1. now established that an Australian court will decline, on the grounds of forum non conveniens, to exercise jurisdiction which has been regularly invoked by a plaintiff, whether by personal service or under relevant long-arm jurisdiction provisions, only when it is shown that the forum whose jurisdiction is invoked by the plaintiff is clearly inappropriate 2. in trying an action for tort in which the parties or the events have some connection with a jurisdiction outside Australia the choice of law rule to be applied is that matters of substance are governed by the law of the place of commission of the tort