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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……..

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.

(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!!!)

The internet makes that awfully easy these days.

It is for the plaintiff in an action to formulate his claim in an intelligible form and it does not lie in his mouth to assert that it is impossible for him to formulate it and that it should, therefore, be allowed to continue unspecified in the hope that, when it comes to trial, he may be able to reconstitute his case and make good what he then feels able to plead and substantiate.�

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.

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.

The rest of the claim is still based in tort, but under more obscure actions.

The Supreme Court of Victoria has ordered Tasmanian timber company Gunns Limited to pay a substantial part of the legal costs of 20 environmentalists.[approx full cost $1million]

Gunns has accused the defendants of trespass, sabotage and the destruction of property at its logging sites.

The court’s order relates to the cost of preparing a statement of claim that it struck out last month.

A new statement of claim is now being prepared….

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’.”

In NSW, long winded and I’m not particularly or overly fond of the :

UNIFORM CIVIL PROCEDURE RULES 2005, [however]
[Part 5 generally and ] REG 5.2 (1) This rule applies if it appears to the court that:
(a) the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person ( “the person concerned”) for the purpose of commencing proceedings against the person, and (b) some person other than the applicant ( “the other person”) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.

(2) The court may make either or both of the following orders against the other person:(a) an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned,
(b) an order that the other person must give discovery to the applicant of all documents that are or have been in the other person’s possession and that relate to the identity or whereabouts of the person concerned.

3) A court that makes an order for examination under subrule (2) (a) may also make either or both of the following orders:(a) an order that the other person must produce to the court on the examination any document or thing that is in the other person’s possession and that relates to the identity or whereabouts of the person concerned, (b) an order that the examination be held before a registrar.

(8) An application for an order under this rule is to be made:
(a) if it is made in relation to proceedings in which the applicant is a party, by notice of motion in the proceedings, or (b) in any other case, by summons.

(31 documents on a Boolean search of the Rules and defamation–I won’t go there!)

Do you know where the Gunns case is being initiated?

Victoria.

Victoria.

(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.

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?