Given that the laws on defamation in Australia have been standardised across states, something that has taken 150 years to achieve, and in NSW and all other states in effect on 1 January 2006, one might ask what those new laws change in the old regimes. Defamation is broadly, material including that which tends to lower the person in the estimation of others, or that would tend to result in the person being shunned or avoided or that is likely to expose the person to hatred, contempt or ridicule.
In summary the uniform law changes include:
* “preventing corporations (other than non-for-profit organisations or small businesses) from suing for defamation, addressing current community concerns that large companies could stifle legitimate public debate by beginning defamation action;
* establishing a defence of “truth” to replace the previous defence of “truth and public benefit [the public interest defence]”;
* reducing the time limit for bringing a defamation action from six years to one year (or three years if the court is satisfied an action could not have been brought within one year);
* abolishing the awarding of exemplary and punitive damages in civil defamation proceedings; and
* limiting juries to determining whether a person has been defamed, leaving the awarding of damages to judges.”
…He said he was moved to sue after a woman with whom he was debating the merits of military action in Iraq began a campaign of name-calling that started by describing him as “lard brain” and culminated in falsely labelling him a “Nazi”, a “racist bigot” and a “nonce”.
Tracy Williams, a college lecturer from Oldham, was ordered by a high court judge to pay £10,000 in damages, as well as Mr Keith-Smith’s £7,200 costs, and told never to repeat the allegations….
He has also taken action against a second poster, he said, with whom he claimed to have settled for a sum “in the region of £30,000″.
“They started saying I was on a sex offenders’ list and that people shouldn’t let me near their children,” said Mr Keith-Smith, who is also chairman of the Conservative Democratic Alliance, which bills itself as “the leading voice of the radical Tory right”.
Legal experts said the case should be taken as a warning to the millions of people in the UK debating contentious issues on message boards, in chatrooms and on their own blogs that the laws of libel applied just as they would if the comments were published in a leaflet or newsletter.
But Mark Stephens, head of media law at Finer Stephens Innocent, said the case should trigger a wider debate about whether the libel law was best suited to deal with such cases. If a chatroom was self-moderating and had a limited circulation, he questioned whether such cases should ever reach court.
Most such cases never reach court because most complaints tend to be to an ISP or site owner, which would take down the defamatory content as soon as it was notified and the person making the libellous allegations would back down.
Meantime back in Oz, we have already had an internet precedent case:
The previous leading case on the quantum of damages to be awarded for a defamation committed by publication online is the case of Rindos v Hardwick.[Unreported Judgement 940164, Delivered 31 March 1994, Supreme Court of Western Australia, Ipp J.]
The imputations that the Court accepted as arising from the defamatory words published on the Internet in the Rindos case were firstly that the plaintiff had engaged in sexual misconduct, in particular paedophilia with a “local boy”…
His Honour Ipp J of the Supreme Court of Western Australia, also in default of defence, awarded the plaintiff damages of $40,000 plus interest. Although a number of other Western Australian cases have since arising involving defamation committed on-line,… the Rindos case remained the benchmark…
(The Rindos judgement can be read here.)
The questions that arises from all this, is there any reason, re calling people “Nazis” or “paedophiles” for example, for libel laws not to apply on blogs?
No.
(Not the most open-ended of questions, that one!)
Of course they could apply to blogs - the words are in the public domain.
Peter, do you know if this Act has any restrospective application? If so, it would certainly have implications for the Guns20 case - which could only be a good thing.
Bill, it’s open ended in a rhetorical sense! (and for those for whom the cap fits or the bell tolleth, as the case may be.)
“They started saying I was on a sex offenders’ list and that people shouldn’t let me near their children,”
I would think that if people are discussing the various merits of the Iraqi war and then someone starts saying things like this there is and probably should be a case for defamation, No?
This sort of comment is beyond the pale if untrue having damaging consequences against the injured person.
Being called a Nazi etc. I don’t think should have consequneces as it has become the norm for right wingers to be described as such in certain parts of the blogworld.
Of course, anything written would actually have to damage someone’s reputation - so people would have to know who they were in the first place and they could not have already established for themselves a negative reputation (to such a level that the comment(s) in question was unable to damage that reputation).
So, I would say that it would easier for someone who uses his or her real name online to be defamed than it would be for someone who writes under a pseudonym.
I was wondering that one myself Cristy. A quick perusal of the NSW Act doesn’t show any retrospectivity, however even under the old laws, defamation by a corporation was I believe somewhat dubious, (BTW I thought the Gunns case was defamation and economic loss.)
I once asked Justice Kirby about corporations and their standing to sue for defamation, he replied by quoting a Supreme Court appeal case where he knocked back a local council trying to sue.
Do you know where the Gunns case is being initiated? Tassy, Vic or NSW?
“The questions that arises from all this, is there any reason, re calling people “Nazis” or “paedophiles” for example, for libel laws not to apply on blogs?” - No reason at all, the only obstacle being identification of the relevant parties. Even if the target of the imputation goes under a pseudonym, that person would still be entitled to sue provided that the pseudonymous identity had a reputation to protect, eg, that the imputations were likely to cause others in the blogosphere to shun, ridicule or avoid that person. However, damages would probably be minimal and the tenor of the discussion at the blog would be relevant both to whether the words bore a defamatory imputation and the quantum of damage.
Section 32 ‘Defence of innocent dissemination” might be relevant for blog owners:
32 Defence of innocent dissemination
(1) It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor, and
(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and
(c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.
(2) For the purposes of subsection (1), a person is a “subordinate distributor”of defamatory matter if the person:
(a) was not the first or primary distributor of the matter, and
(b) was not the author or originator of the matter, and
(c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.
(3) Without limiting subsection (2) (a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of:
(a) a bookseller, newsagent or news-vendor, or
(b) a librarian, or
(c) a wholesaler or retailer of the matter, or
(d) a provider of postal or similar services by means of which the matter is published, or
(e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter, or
(f) a provider of services consisting of:
(i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded, or
(ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form, or
(g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control, or
(h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.
Good points Bismark, and raises the issue of identity; what was interesting in the UK case was the plaintiff “petitioned the court to find out the identity of Ms Williams,” making it sound like a trial petition, and not a pre-trial subpoena. I’m unfamiliar in this territory, perhaps you could elaborate on that point, as it seems odd that one could file a civil plaint without a real name.
“Do you know where the Gunns case is being initiated? Tassy, Vic or NSW?”
Victoria.
You could subpoena the ISP provider in order to find out the identity of your potential defendant.
A psuedonymous plaintiff would need to file under his or her real name. It is not that unusual to take proceedings when the defendant’s real identity is not known and then to apply to the Court for preliminary disclosure or non-party disclosure (eg against an ISP) in order to get some clues. In defamation proceedings, you also have a grab-bag of defendants (anyone involved in the publication) to choose from.
Victoria.
Oops, sorry!
Thanks Bismarck, I mistakenly attributed the ‘petition’ to the initial defendant in the UK case. The defendant’s pseudonym on the plaintiff’s initial plaint would be a given for initial filing, then the process of pre-trial discovery of the real name of the defendant by a subpoena on the ISP; hearing and motion re court order to ISP for identity of second defendant who apparently was joined in the suit.
In NSW, long winded and I’m not particularly or overly fond of the :
(31 documents on a Boolean search of the Rules and defamation–I won’t go there!)
Thanks Cristy (and Bill) re Vic and re Gunns, I’ve missed this:
per
http://abc.net.au/news/newsitems/200508/s1439466.htm
Seems like they have dropped the defamatory part, but an earlier statement of claim by Gunns was according to judge Bongiorno “‘incomprehensible’, ‘embarrassing’ and ‘unintelligible’.”
Austlii’s latest is from July 2005, but might be entertaining reading anyway.
Yes, they did drop the defamation part. I forgot about that.
The rest of the claim is still based in tort, but under more obscure actions.
I can’t see any mention of retrospectivity in the new Act, and there is an interpretive presumption against retrospectivity so it would certainly need to be spelled out to be found to exist. Thus I don’t think the new national legislation will help the Gunns defendants.
As for Cristy’s reference to section 32, I wouldn’t be too complacent about it affording any relaible protection to bloggers. Those words “has no effective control” are the bugbear. Bloggers can exercise effective control of their comment boxes (just ask Evil Pundit), so I doubt section 32 would provide an effective defence to defamation by a comment box contributor, unless a defamatory comment was posted in the middle of the night and you deleted it the next day as soon as you noticed it. Once you’ve read it and left it there, you’re choosing not to exercise effective control.
In fact, the situation would be very much like the British case Godfrey v Demon Internet, (Unreported, UK High Court, QB Division, 26 March 1999), which highlights the limitation of a quite similar statutory defence. Dr Laurence Godfrey, a lecturer in physics and computer science sued Demon Systems, a British ISP in relation to allegedly defamatory statements posted by a student to a usenet news group. It was held that an ISP (Demon Systems) could not avail itself of the new statutory defence where the plaintiff has served actual notice (by fax) of the defamation upon the company’s managing director i.e. Demon failed to remove the offending material for some time even after being served with notice. Moreover, it wouldn’t be necessary to prove that notice had been served to negate the defence; that’s just a matter of ease of evidence. As long as the plaintiff could prove by whatever means that the defendant was aware of the existence of the defamatory material and had the ability to remove it but had failed to do so, the defence would be unavailable.
Thanks Bill, what I liked from that link was this from the UK’s Privy Council:
Seems like the only people gaining by this… no, I won’t go there
Ken, appreciate your points but re “aware of the existence of the defamatory material” leaving aside ignorance of the law as an excuse (which it isn’t), do you think there would be in a borderline case, some lattitude towards the ISP or blog host defendant ie not being expected to pre-empt a tribunal of fact that the borderline libel was in fact defamatory? In other words, what is comparitively the position of 1st defendant (commenter) and second defendant (ISP or blog host) in such a situation in Australia?
If there’s no lattitude, (and I for one haven’t read enough defamation case law to know, or ever tried advanced tort law), then I guess it’s better to err on the side of caution, which is a pity in the sense that free speech suffers as a result of over-cautiousness.
At this point I’m reminded of Private Eye’s Lord Gnome (Peter Cook for you great unwashed hordes out there) riffing on Nosey’s “Publish and be damned!” with “Publish and be somewhere else.”
The internet makes that awfully easy these days.
True Nabs, easy, but the earlier case of Dow Jones & Company Inc. v Gutnick [2002] HCA 56 (10 December 2002) set a precedent that the defamation occurs where it was downloaded.
(I loved Tom Sharpe’s defamation scene in “The Throwback” where Flawes’ lawyer is doing a jig on the tabletop reading the (defendant to be) solicitor’s letter ” Sue and be damned—indeed!!!)
Ah yes, “The Throwback”. I’ve never looked at a golf course the same way after reading that.
Not to mention that appalling funny line about one of the characters roaming all over another one’s body like a fox, indiscriminate about openings.
Hey! It’s Friday night. Gotta go shampoo my brush and roam.
aah Godfrey v Demon AND my own ISP, and only club that would have me as a member, at the time Melbourne PC CLub. I remember it well. The bastard could have ruined us, we couldn’t afford to send people over to UK to defend so we caved and sent the $ on advice.
Godfrey was a well known USENET KOOK and baiter who hung out on controversial ethnic usenet groups on alt.culture from what I remember. Like alt.culture.croatian or similar then spouted, say for example, serbian rhetoric.
The good old days indeed. And people think blog comments get a bit out of hand. bah. Let me tell you about alt.religion.scientology……..
a bit about usenet kooks and lawsuits
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