DEFAMATION OVER THE INTERNET
by Rob Miller
A case decided by the High Court of Australia in
December 2002 called Dow Jones v Gutnick established that a
newsletter written and originating in New Jersey in the United
States which was downloaded and read by a subscriber to the
newsletter in Victoria, could be the subject of a defamation action
commenced in Victoria.
Mr Gutnick who lived in Victoria and had his
business headquarters there, argued that the newsletter defamed him
in that it suggested he was an associate of a convicted tax evader
and of another person awaiting trial for stock manipulation in New
Jersey.
Dow Jones argued that any defamation action should
be commenced in New Jersey being the place where the newsletter was
“uploaded”. It was likely that the defamation laws of New Jersey
would give Dow Jones a good defence to the defamation whereas the
defamation laws in Victoria would be likely to favour Mr Gutnick and
bring him success.
The decision of the High Court was that despite the
comparative novelty of publications over the internet, the ordinary
common law rules should prevail, meaning that it is the law area
where the defamation is read and understood which has jurisdiction
to hear the case. As it has been estimated that the present number
of internet users world wide is about 600 million and that the
number of users continue to grow exponentially, it is evident just
how careful internet users need to be when publishing material about
people who live or work and whose reputation is in another country.
In the course of my legal practice I have come
across many instances of defamation being published by email. I have
yet to see a case where a defamatory email written in say Cairns has
been read in say, Afghanistan (or vice versa) but I live in hope.
Of course, just as much care needs to be taken in
email correspondence as should be taken in the less esoteric and
more usual forms of communication be it the spoken word or ordinary
written correspondence. Any defamatory and non-privileged
communication can be the precursor of a potentially expensive and
traumatic legal action, more so, as Dow Jones discovered, if the
defamation is read in a place whose laws favour a person whose
reputation has been damaged.
Mr Gutnick was ultimately successful in his legal
action. Dow Jones has recently settled the legal action. It cost
them what could be considered to be a humiliating apology plus a
considerable sum for legal costs.
Rob Miller is a partner at Miller Bou-Samra Lawyers
and advises newspapers and individuals suing or being sued for
defamation.
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