Saudi electronic university Business Law Paper

Here are 6 questionsQ1
LAW 402 Case Study
•
Prepare a case study that requires critical thinking. The case study should include
related questions and guiding answers.
•
In week 9 we studied the Dow Jones v Gutnick case.
▪
What happened in this case?
▪
What is defamation?
▪
What legal issue did the court have to decide and what decision did it
reach?
You should write about 300 words here
Answer :
references
Q2
Law 402
a- include your discussion question in the form below, as well as the answer to the
question and the answer source.
• How would you define cyberstalking?
You should write about 150 words here
Answer:
b- Privacy and Data Protection in Cyberspace
Identify one issue from the weekly reading and create a Legal Issue Brief.
Your brief should be no more than one page and follow the format below.
Title (Issue in 2-5 words)
Student Name
Issue (1-3 sentences)
Facts (3-4 sentences)
Student position (2-4 sentences)
Rationale (5-7 sentences)
You should write about 150 words here
Answer:
c- Jurisdiction and Defamation in Cyberspace
Identify one issue from the weekly reading and create a Legal Issue Brief.
Your brief should be no more than one page and follow the format below.
Title (Issue in 2-5 words)
Student Name
Issue (1-3 sentences)
Facts (3-4 sentences)
Student position (2-4 sentences)
Rationale (5-7 sentences)
You should write about 150 words here
Answer:
references
Q3
Include your discussion question in the form below, as well as the answer to the
question and the answer source.
What are the differences between general partners and limited partners in a limited
partnership?
You should write about 150 words here
Answer:
references
Q4
Test your Knowledge (Question):
1 Define an effective reward system from your point of view and discuss its impact on the
organization.
You should write about 150 words here
Answer :
references
Q5
Test your Knowledge (Question):
1 Discuss the main differences between mechanistic and organic organization designs from
your point of view.
You should write about 150 words here
Answer :
References
Q6
:Action Required
:Watch the video using the following link
Keynesian economics | Aggregate demand and aggregate supply | Macroeconomics | )908(
Khan Academy – YouTube
:Test your Knowledge (Question) 11.3
.Q.Explain sticky price theory
Instructions 11.4
Answer the given question in your own word
and it should be less than 100 words
Answer :
references
11 Jurisdiction in cyberspace
When a radically new situation is presented to the law it is sometimes
necessary to think outside the square…this involves a reflection upon the
features of the Internet that are said to require a new and distinctive legal
approach.1
Cyberspace is an illusion. There is no such place. Many terrestrial norms do not
and cannot apply to such a fictitious construct. Nevertheless cyberspace users
perceive metaphorical chat rooms, folders, files, shops, libraries and so forth. They
live digital lives with digital personas in ‘places’ such as Second Life and
Facebook.2 The reality is that each step of the digital experience is rooted
terrestrially. Traditional legal principles are applicable to the majority of
electronic commerce disputes. Nevertheless, the operation of electronic commerce
in cyberspace results in new circumstances to which legal jurists cannot readily
apply established legal rules.
The borderless nature of the internet often hides or disguises the origin of
particular websites and corresponding information. Questions sometimes arise as
to the country or state whose courts have jurisdiction to adjudicate on a matter, and
as to which law is to be applied. Courts also have to determine issues such as
where conduct occurs – at the computer, the server, the place of business or
residence or somewhere else? – and thus which time zone applies. This area of law
is referred to as conflict of laws or private international law,3 and its principles are
well established.
Rules of private international law
It is possible that an Australian court will determine that the law which applies to a
particular situation is that of another country. In this case the Australian court will
apply that other country’s law. Typically, the parties to an international contract
will specifically identify the law which applies to the contract. The parties may
also identify which country’s courts have jurisdiction to hear disputes arising under
the contract.
Contractually, parties may include an express choice of law clause under the
principle of party autonomy. 4 However, there are exceptions. 5 Where there is no
express choice of law the courts will attempt to find an implication of choice from
the language of the documents, the prior conduct of the parties, the place of
performance and other surrounding circumstances.6 Where there is no express
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choice and one cannot be implied, the contract will be governed by the law of the
jurisdiction ‘most closely connected’ to the contract. This may depend upon the
subject matter, nationality or domicile of the parties, the place of performance and
other factors.7 Once the proper law is determined, the rules of that system of law
are applied to the contract.
Forum non conveniens
The issue of choice of forum in which to hear an action is known as forum non
conveniens. Each nation state determines its own laws and procedures. These laws
are termed lex fori or the law of the forum. Each nation’s court system must
determine, through its own civil procedure, when and how it should accept
jurisdiction. It will take into account numerous factors, such as residence and
nationality of the parties, the place or places of business, and the subject matter
(when the law suit begins). Often the issue is routine and uncontroversial, but
where one or more of the parties reside outside the nation state or the subject matter
of harm occurs elsewhere the question of jurisdiction must be settled.
The English approach to determining the forum, recognised by most common law
jurisdictions, is the test of ‘the clearly more appropriate forum’.8 The Australian
courts have developed a broader test, that of ‘the clearly inappropriate forum’. This
has resulted in the taking of jurisdiction more often.9
The High Court reaffirmed its position in Regie National des Usines Renault SA
v Zhang:10 ‘[a]n Australian court cannot be a clearly inappropriate forum merely
by virtue of the circumstance that the choice of law rules which apply in the forum
require its courts to apply foreign law as the lex causae’. Although superficially the
English and Australian tests look similar, an analysis demonstrates that the
Australian test will result in the courts taking jurisdiction more often.
Dow Jones v Gutnick
A number of foreign cases have raised novel problems associated with jurisdiction
in cyberspace.
The application of the internet vis à vis jurisdiction and cyberspace was
explained in Dow Jones v Gutnick.11 Gleeson CJ, McHugh, Gummow and Hayne JJ
explained:
The World Wide Web is but one particular service available over the
Internet. It enables a document to be stored in such a way on one
computer connected to the Internet that a person using another computer
connected to the Internet can request and receive a copy of the
document…the terms conventionally used to refer to the materials that are
transmitted in this way are a ‘document’ or a ‘web page’ and a collection
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of web pages is usually referred to as a ‘web site’. A computer that
makes documents available runs software that is referred to as a ‘web
server’; a computer that requests and receives documents runs software
that is referred to as a ‘web browser’.
The originator of a document wishing to make it available on the World
Wide Web arranges for it to be placed in a storage area managed by a
web server. This process is conventionally referred to as ‘uploading’. A
person wishing to have access to that document must issue a request to
the relevant server nominating the location of the web page identified by
its ‘uniform resource locator (URL)’. When the server delivers the
document in response to the request the process is conventionally
referred to as ‘downloading’.12
Dow Jones v Gutnick13 is the most significant Australian authority on internet
jurisdiction to date. Dow Jones published the Barrons Magazine (Barrons), which
contained an article entitled ‘Unholy Gains’ and sub-headed ‘When stock
promoters cross paths with religious charities, investors had better be on guard’.
The article alleged, among other things, that Victorian businessman Joseph Gutnick
was ‘masquerading as a reputable citizen when he was a tax evader who had
laundered large amounts of money’.14 The magazine sold 305,563 hard copies (14
of those in Victoria) and was available on the website wsj.com to some 550,000
subscribers (some 300 of whom were in Victoria). Dow Jones operated in New
York and its internet servers were located in New Jersey.
Dow Jones v Gutnick did not involve personal jurisdiction, as the defendant was
not within jurisdiction. Personal jurisdiction is typically satisfied where the
defendant is physically present in the jurisdiction or has significant contacts with
the jurisdiction, such as a branch office or registered interest. The nature of internet
interaction will lead to many instances where personal jurisdiction will not arise.
The case attracted significant international attention. Media outlets were
concerned about the implications for them if nations like Australia accepted
jurisdiction for publications which were ostensibly intended for the domestic US
market, but which were sold in part or peripherally internationally. The High Court
of Australia permits pleadings in appeals by interveners in matters of general
public importance if the issue relates to maintaining some particular right, power or
immunity which affects the interveners.15 An intervener has the same rights and
obligations as the other parties to the action, including the ability to appeal, tender
evidence and participate fully in all aspects of the argument. The interveners
included Amazon.com Inc.; Associated Press; Cable News Network LP LLLP
(CNN); Guardian Newspapers Ltd; The New York Times Company; News
Limited; Time, Inc.; Tribune Company; The Washington Post Company; Yahoo!
Inc.; and John Fairfax Holdings Ltd.
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The matter came before Hedigan J at first instance. His Honour particularly
examined jurisdiction in relation to the internet connection, as this could affect the
award of damages.
Geoffrey Robertson QC for Dow Jones made several unsuccessful submissions.
Robertson submitted that imposing liability where downloading occurred ‘would
have a serious “chilling effect” on free speech’. He argued that ‘a narrow rule was
appropriate for the age of globalisation’ and that ‘the Internet offer[ed] Australians
the greatest hope of overcoming the tyranny of distance’. He submitted that Hedigan
J had ‘a national duty to decide that there was no jurisdiction in Australia even if
[the judge] had a legal view to the contrary, and that it [wa]s [his Honour’s] duty
publicly to declare that Mr Gutnick’s action against Dow Jones take place in New
Jersey’. Robertson suggested that downloading is ‘self-publishing’ and that ‘the
process is akin to taking a book out of a library in New Jersey and taking it home to
Victoria to read’. He ‘flirted with the idea’ that cyberspace should be a
defamation-free zone,16 and argued that the article was published ‘in America for
Americans’ and that the events constituted ‘a tort having an indelibly American
complexion’.17 The plaintiff submitted that publishing occurs when data is made
‘intelligible or manifest to a third party’ and argued that that has been the law for
400 years in other contexts.
Hedigan J rejected counsel’s ‘bold assertions’, commenting that the unique nature
of the internet must not lead to the abandonment of the analysis that the law has
traditionally and reasonably followed to reach just conclusions. His Honour
expressed concern that Robertson’s arguments, ‘attractively presented as they were,
became enmeshed in pop science language’ and degenerated into ‘“sloganeering”
which in the end decides nothing’.18
Hedigan J referred to the following authorities to formulate his view. First, his
Honour politely questioned the value of the decision in Macquarie Bank v Berg 19
without making any attempt to directly address issues raised. He then referred to
Digital Equipment Corporation v Alta Vista Technology Inc. ,20 where to
determine jurisdiction the court examined the question of whether the owner and
controller of a website can with some degree of certainty ‘know’ if the content of
the site reaches the user. The court felt that:
Using the Internet…is as much knowingly ‘sending’…as is a telex, mail
or telephonic transmission;…ATI ‘knows’ that its Website reaches
residents…who choose to access it, just as surely as it ‘knows’ any
lateral telephone call is likely to reach its destination.
Lee Teck Chee v Merrill Lynch International Bank 21 involved the republication of
a Singapore newspaper on the internet. Nathan J, of the High Court of Malaysia,
held that publication had not taken place in Malaya because the alleged defamatory
words had been published on a Singapore server. However, the judgment is of
limited value as there was no evidence presented that any person in Malaya had
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accessed the website.
I n Kitakufe v Oloya Ltd22 the Canadian court assumed jurisdiction for a
defamatory statement made in a Ugandan newspaper republished on the internet.
The plaintiff was a medical practitioner born in Uganda, but practising in Canada.
The defendant argued that Uganda was a more convenient and natural forum, and
that the proceedings had numerous real and significant links to Uganda. These
included that the plaintiff had assets in Uganda, and that the defendant’s concerns
regarding malice, ethnic rivalry and the defence’s credibility meant that the case
would be better dealt with in Uganda. The defence also expressed concern about
the significant expense and inconvenience of calling witnesses based in Uganda to a
case run in Canada. Despite this multitude of connections with Uganda, Hume J
assumed jurisdiction on the basis of access to the website and downloading,
concluding that it was ‘not satisfied that the plaintiff would not be deprived of a
legitimate personal and juridical advantage’ if the case were run in Uganda.
Hedigan J described this case as one where ‘a superior court assumed jurisdiction
over a defamation suit on the basis of access to the Website and its reception (that
is, downloading) in Ontario, Canada’.
I n Godfrey v Demon Internet Ltd,23 Moreland J determined that an internet
bulletin board amounted to publishing postings to subscribers. Godfrey was a
science lecturer in England and the defendant hosted a news group whereby users
could make postings contributing to targeted discussions. One posting claimed to be
Godfrey, but in fact was written by an imposter. The posting was defamatory.
Godfrey requested its removal within ten days. The defendant did not and it
remained online until it expired in the usual course (two weeks later). Moreland J
held that the defendant had published the posting whenever a subscriber accessed
the news group:
In my judgment the defendant, whenever it transmits and whenever there
is transmitted from the storage of its news server a defamatory posting,
publish[es] that posting to any subscriber to its ISP who accesses the
newsgroup containing that posting. Thus every time one of the defendant’s
customers accesses ‘soc.culture.thai’ and sees that posting defamatory of
the plaintiff there is a publication to that customer.
Hedigan J took particular note of the expression ‘sees that posting defamatory of the
plaintiff’: he regarded this as the equivalent of downloading.
Hedigan J cited Calder v Jones24 with approval, referring to the statement of the
US Supreme Court that ‘jurisdiction may be exercised over a foreign defendant
who directs his or her defamatory message at the forum and the plaintiff suffers
harm there’.25
From these cases Hedigan J concluded that the place of defamation is ‘the
jurisdiction where the defamatory material was published and received by the
plaintiff, rather than where it was spoken or written’, and so the Dow Jones article
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was published in the state of Victoria when downloaded by Dow Jones subscribers
who had met Dow Jones’s payment conditions and used their passwords. The
defendant’s argument that it would be unfair for the publisher to have to litigate in
the multitude of jurisdictions in which its statements are downloaded and read, he
said, ‘must be balanced against the world-wide inconvenience caused to litigants,
from Outer Mongolia to the Outer Barcoo’. His Honour stated that ‘if you do
publish a libel justiciable in another country with its own laws…then you may be
liable to pay damages for indulging that freedom’.26
Hedigan J considered the following additional factors as significant:
• the publication was downloaded in Victoria;
• the plaintiff’s residence, business headquarters, family, social and business
life are in Victoria;
• the plaintiff seeks to have his Victorian reputation vindicated by the courts of
the state in which he lives;
• the plaintiff undertook not to sue in any other place.
His Honour concluded that given these factors ‘it would be verging on the
extraordinary to suggest that Mr Gutnick’s action in respect of that part of the
publication on which he sues should be removed for determination to the State of
New Jersey’.27 Dow Jones maintained that the article was ‘indelibly American,
written by Americans for Americans interested in the stock market and its affairs’.
The weakness in this argument, writes Hedigan J, is that ‘the aspect sued on by Mr
Gutnick is indelibly Victorian, connected with no other place, and that any
documentation or evidence concerning the matter will all be found in Victoria’.28
Less than one month after the judgment by Hedigan J, the Victorian Court of
Appeal quickly and with little consideration and analysis dismissed the appeal by
Dow Jones.29 The issue then came before the High Court of Australia.
On 10 December 2002 the High Court of Australia handed down its decision in
Dow Jones v Gutnick. By 7–0, but in four separate judgments, the High Court
dismissed the appeal of Dow Jones. The court determined that publication of a
defamatory statement for an online subscription website occurs at the place of
downloading. Kirby J flagged the danger in finding otherwise, stating:
To tell a person uploading potentially defamatory material onto a
website…[that that act] will render that person potentially liable to
proceedings in courts of every legal jurisdiction where the subject enjoys
a reputation, may have undesirable consequences. Depending on the
publisher and the place of its assets, it might freeze publication or censor
it or try to restrict access to it in certain countries so as to comply with
the most restrictive defamation laws that could apply.30
Kirby J dealt with the legal response to the impact of the internet. His Honour
described the internet as ‘essentially a decentralised, self-maintained
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telecommunications network’ which ‘demands a radical reconceptualisation of the
applicable common law’.31 His Honour drew an analogy between the development
of such new legal rules and the Law Merchant (lex mercatoria), which arose out of
the general custom of the merchants of many nations in Europe.
Adventitious and opportunistic
Dow Jones submitted that the applicable law should be that of the place where the
web servers were maintained, ‘unless that place was merely adventitious or
opportunistic’. Dow Jones recognised the argument that publishers could place
their servers in jurisdictions most advantageous to them, but argued that it did not
‘misuse’ this rule, as the location of its servers was not determined for legal or
advantageous considerations. Gleeson CJ, McHugh, Gummow and Hayne JJ stated
that ‘adventitious’ and ‘opportunistic’ are words likely to produce considerable
debate, and noted that a publisher may choose the server’s location based on a
range of factors, including costs of operation, benefits offered for setting up
business, security, and continuity of service. They also noted that the publisher may
have servers in more than one state or country.
The corollary argument was made that plaintiffs like Gutnick could choose the
most favourable jurisdiction to them in which to commence proceedings, bypassing
nations with free speech and freedom of expression. Gutnick’s response was that
whilst that may be so, on this occasion he sued in the jurisdiction of his business,
domicile and residence, and sought no adventitious of opportunistic advantage.
The court’s attitude towards either the plaintiff or the defendant choosing the most
advantageous jurisdiction or the publisher placing its server in a jurisdiction with
no defamation law remains untested.
Gleeson CJ, McHugh, Gummow and Hayne JJ suggested that ‘reasonableness of
the publisher’s conduct’ might be considered ‘necessary or appropriate’ as a
common law defence where all the publisher’s conduct occurred outside the
jurisdiction. Their Honours identified relevant circumstances as ‘including where
that conduct took place, and what rules about defamation applied in that place or
those places’. Their Honours drew an analogy with the developing defence of
innocent dissemination.32
Kirby J described the dismissal of the appeal as ‘contrary to intuition’, which
‘does not represent a wholly satisfactory outcome.’ His Honour seemed to feel that
a balance is yet to be determined between the human right of access to information
and to free expression, and the human right to protection by law for the reputation
and honour of individuals, and that this warrants ‘national legislative attention
and…international discussion in a forum as global as the Internet itself’.33
The court determined that the place where damage was inflicted was a most
significant factor. The place where the defamation was comprehended and the
plaintiff’s connection with the locality were important factors.34
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According to Gleeson CJ, McHugh, Gummow and Hayne JJ, the ‘spectre which
Dow Jones [seeks] to conjure up’ – that a publisher would be forced to consider,
for every article it publishes on the internet, ‘the defamation laws of every country
from Afghanistan to Zimbabwe’ – is ‘unreal when it is recalled that in all except
the most unusual of cases, identifying the person about whom material is to be
published will readily identify the defamation law to which that person may
resort’.35
Effects test
One solution may be the adoption of an effects test. Calder v Jones36 concerned
Shirley Jones, an Academy award-winning actress who lived and worked in
California. Jones was defamed by an article in the National Enquirer which was
published in Florida but had a nationwide circulation, including a substantial
readership in California. The defendants challenged the jurisdiction of the
Californian courts. The US Supreme Court held that California was the ‘focal point
both of the story and of the harm suffered’. This joint ‘target’ and ‘harm’ criteria is
often referred to as the ‘effects test’:
The allegedly libelous story concerned the California activities of a
California resident. It impugned the professionalism of an entertainer
whose television career was centered in California. The article was
drawn from California sources, and the brunt of the harm, in terms both of
respondent’s emotional distress and the injury to her professional
reputation, was suffered in California. In sum, California is the focal
point both of the story and of the harm suffered. Jurisdiction over
petitioners is therefore proper in California based on the ‘effects’ of their
Florida conduct in California…The mere fact that [the defendant] can
‘foresee’ that the article will be circulated and have an effect in
California is not sufficient for an assertion of jurisdiction…[The
defendants] are not charged with mere untargeted negligence. Rather,
their intentional, and allegedly tortious, actions were expressly aimed at
California. Under the circumstances, petitioners must ‘reasonably
anticipate being hauled into court there’ to answer for the truth of the
statements made in their article.37
This case did not involve the internet or cyberspace, but its approach has been used
and quoted in cyberspace jurisdiction cases.38 The concept that a person ought to be
liable for a deliberate act which targets another jurisdiction and causes harm there
clearly can be useful for cyberspace quandaries.
The effects test can be compared to the terminatory theory of criminal law
espoused by Professor Glanville Williams 39 and approved by Stephen J in Ward v
266
R.40 It is the place where the physical act took effect on its victim, not where the
physical act of perpetrator was done, that determines the locus of the crime and, in
turn, which courts have jurisdiction in respect of that act.
In Dow Jones v Gutnick, Gleeson CJ, McHugh, Gummow and Hayne JJ endorsed
the effects test approach:
Activities that have effects beyond the jurisdiction in which they are done
may properly be the concern of the legal systems in each place. In
considering where the tort of defamation occurs it is important to
recognise the purposes served by the law regarding the conduct as
tortious: purposes that are not confined to regulating publishers.41
Australian cases
The first Australian case with an element of internet jurisdiction is Macquarie
Bank v Berg.42 Berg was a disgruntled ex-employee of Macquarie Bank who
placed defamatory material regarding the bank and its senior employees on a
website. Berg had moved to California and the material in question was located on
a server there, but could be accessed and viewed in New South Wales. Macquarie
Bank sought an ex parte interlocutory injunction to restrain publication of the
material on the internet. Simpson J, bearing in mind the fact that publication on the
internet is continuous, 24 hours a day, for as long as the material remains online,
described the difficulties of such a request in the following terms:
…once published on the Internet, material is transmitted anywhere in the
world that has an Internet connection…to make the order as initially
sought, would have the effect of restraining publication of all the material
presently contained on the website to any place in the world. Recognising
the difficulties associated with orders of such breadth, [counsel] sought
to narrow the claim by limiting the order sought to publication or
dissemination ‘within NSW’. The limitation, however, is ineffective.43
Simpson J did not accept jurisdiction and refused to grant the injunction. However,
her Honour spuriously reasoned:
The difficulties are obvious. An injunction to restrain defamation in NSW
is designed to ensure compliance with the laws of NSW, and to protect
the rights of plaintiffs, as those rights are defined by the law of NSW.
Such an injunction is not designed to superimpose the law of NSW
relating to defamation on every other state, territory and country of the
world. Yet that would be the effect of an order restraining publication on
the Internet. It is not to be assumed that the law of defamation in other
267
countries is coextensive with that of NSW, and indeed, one knows that it
is not. It may very well be that, according to the law of the Bahamas,
Tazhakistan, or Mongolia, the defendant has an unfettered right to publish
the material. To make an order interfering with such a right would exceed
the proper limits of the use of the injunctive power of this court.44
This reasoning repeats the erroneous approach of Inset System Inc. v Instruction
Set Inc. (see below).45 The mere fact that a website reaches another jurisdiction is
not a sufficient ground to grant or assume that jurisdiction. However, Berg clearly
had several connections with New South Wales, and the website was dedicated
entirely to Macquarie Bank and its senior employees. In terms of an effects test, the
target and the harm were entirely in New South Wales, so Berg ought to have
expected to be brought before the courts there.
The factors against the grant of jurisdiction included the enforceability of such an
order, the undesirability of superimposing the defamation law of New South Wales
onto every other state, territory and country of the world, and the interlocutory
nature of the application.46
I n Airways Corporation of NZ Ltd v PriceWaterhouse Coopers Legal 47
Simpson J had the opportunity to reconsider her decision in Macquarie Bank. The
proceedings arose out of the publication, by email, of certain material capable of
defaming the plaintiffs. The only evidence as to receipt of the material was from
two witnesses, each of whom received it in New Zealand. Counsel argued that the
evidence disclosed no connection with New South Wales, and that the appropriate
forum for the commencement of any defamation proceedings should be New
Zealand. Counsel cited the decision of Hedigan J in Gutnick v Dow and the Court
of Appeal. Simpson J stated:
In these decisions it was held that internet publications take place in the
location where they are read, and not in the location from which they
are transmitted…For present purposes, I am prepared to accept the
conclusions of the Supreme Court of Victoria and the Court of Appeal of
Victoria but bear in mind that these conclusions were reached on the
basis of evidence placed before Hedigan J. That evidence was not
necessarily identical to the evidence on this issue placed before me.
Nevertheless, for present purposes I work on the basis that publication by
email takes place where the email is received and that, on the evidence in
this case, that was in New Zealand.48
Thus Simpson J reversed her previous position, though making use of qualifying
language.
The NSW Supreme Court had the opportunity to revisit the Macquarie Bank
Limited v Berg case in mid-2002.49 Smart AJ dealt with procedural issues, but in
light of the Dow Jones decisions in the Victorian Supreme Court, 50 Macquarie
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Bank’s counsel reserved the right to argue whether the placement on the internet in
the United States of defamatory material accessible in New South Wales amounted
to publication of the material in New South Wales. Berg submitted that the case
was ‘overwhelmed by the application of Californian law and that the indications
were that the plaintiffs could not win in California because of the law as to free
speech’. Smart AJ concluded that until ‘the facts are found definitively it is too
early to say which law applies’.51
Smart AJ distinguished the Dow Jones case, noting, without deciding the issue,
that ‘Gutnick was not concerned with the World Wide Web because Dow Jones
only put its material on for subscribers or trial subscribers.’52
In ACCC v Purple Harmony Plates Pty Limited53 the Federal Court of Australia
considered the difference between websites registered internationally with .com
and Australian-administered and registered sites with .au. The defendants were in
breach of the Trade Practices Act by advertising on the website in a manner which
was misleading and deceptive. The defendants challenged the jurisdiction of the
court on several spurious grounds. In relation to the website, the defendant argued
that it used a .com and not a .au registration and as such the site should be governed
by the laws of Virginia, where the .com sites were administered. Goldberg J
rejected this approach: the registrant was Australian, and it was irrelevant that the
agreement with the domain name administrator may not be subject to the
jurisdiction of Australian courts.
Early US experience
The early cases emanated from the United States, where disputes arose between
parties in different states. Although these US cases involved constitutional factors,
more than one common law jurisdiction has been guided by them.54
In the United States, to determine personal jurisdiction, it is sufficient if the
defendant ‘purposefully availed’ itself of the jurisdiction (such as by repeatedly
conducting business there). US courts are required to use due process (under the
14th Amendment to the US Constitution). In International Shoe Co. v
Washington,55 the US Supreme Court held that due process requires the defendant
to have ‘minimum contacts’ with the plaintiff’s jurisdiction and prescribes that the
choice of jurisdiction be consistent with ‘traditional notions of fair play and
substantial justice’.56
The ‘purposeful availment’ requirement ensures that random and fortuitous
contacts do not cause a defendant to be improperly brought into a forum. The ‘fair
play’ requirement permits the court to examine whether the defendant’s acts or their
consequences have sufficient connection with the state to make jurisdiction
reasonable.
Early cyberspace cases mistakenly granted jurisdiction merely on the basis that
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the defendant’s website could be accessed in the plaintiff’s jurisdiction. In Inset
System Inc. v Instruction Set Inc.,57 the court, on hearing evidence that as many as
10,000 residents of the state could access the website, granted jurisdiction over a
defendant who maintained a mere passive website. This number of potential users
is now ridiculously conservative.
In Minnesota v Granite Gate Resorts Inc.,58 the Minnesota court examined five
factors: the quantity of contacts; the quality of contacts; the connection between the
cause of action and the contacts; the state’s interest; and the convenience of the
parties.
The courts later distinguish between passive and active websites. Passive sites
merely display information. Active websites may provide for form filling, and for
contracting online, or may simply provide an email link. On this basis, in Zippo
Manufacturing Co. v Zippo Dot Com Inc.59 the court formulated a sliding scale
approach which has since been generally adopted.
At one end of the scale:
are situations where a defendant has simply posted information on an
Internet Web site which is accessible to users in foreign jurisdictions. A
passive Web site that does little more than make information available to
those who are interested in it is not grounds for the exercise of personal
jurisdiction.60
For example, in Bensusan Restaurant Corp. v King61 the plaintiff was the owner of
the well-known Blue Note jazz night club in New York. The defendants advertised
their night club, which had the same name, in Missouri; it catered mainly for local
university students. Notwithstanding evidence that New York residents both
accessed and indeed made bookings based on the information from the Missouri
website, the Appeals Court held that passive websites do not meet the standard of
‘purposeful availment’. There was no element of ‘targeting’ (see Effects test,
above) and accordingly no substantial connection was created.62
In Webber v Jolly Hotels 63 the New Jersey-based plaintiff booked a holiday in
Italy online. The defendant ran several hotels in Italy and had no connection with
the United States. The website provided photographs of hotel rooms, descriptions
of hotel facilities, information about numbers of rooms and telephone numbers. The
plaintiff was injured whilst on holiday in the defendant’s hotel. She commenced
proceedings in New Jersey. The court held that it lacked jurisdiction over the
defendant. Access to the website alone was held to be insufficient. The court
required continuous and substantial contacts with the forum to establish the
defendant’s personal jurisdiction: ‘exercising jurisdiction over a defendant who
merely advertises its services or product on the Internet would violate the Due
Process Clause of the Fourteenth Amendment [and] would disrespect the principles
established by International Shoe’. The defendant’s website provided no more than
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passive advertising information.64
At the other end of the scale:
are situations where a defendant clearly does business over the Internet.
If the defendant enters into contracts with residents of a foreign
jurisdiction that involve the knowing and repeated transmission of
computer files over the Internet, personal jurisdiction is proper.65
The Appeals Court in Zippo’s case cited Compuserve Inc. v Patterson66 as an
example: there the defendant had purposefully directed his business activities
towards residents of another state and the repeated transmissions showed a
substantial connection with that state. Acts such as selling goods or services would
in all likelihood be sufficient to constitute ‘business’ on the internet.
In Playboy Enterprises Inc. v Chuckleberry Publishing Inc.67 the court held that
the Italy-based defendant actively solicited US customers to its internet site, and in
doing so had distributed its product within the United States in breach of a contempt
order. One of defendant’s websites was not just a source of passive information, but
was a ‘pay’ site. The defendant knew that US citizens accessed its site and ought to
have expected to be held accountable for its breach of the contempt order. Taking
jurisdiction was thus appropriate.
The middle ground is occupied by interactive Web sites where a user can
exchange information with the host computer. In these cases, the exercise
of jurisdiction is determined by examining the level of interactivity and
commercial nature of the exchange of information that occurs on the Web
site.68
These initial cases are difficult to reconcile as they are complicated by non-internet
factors and by the varying degrees of judicial understanding of the technology
involved.69 First, the defendant must have acted deliberately and purposefully. The
courts then determine the defendant’s level of cognisance. Next, the defendant must
have targeted or singled out a particular forum. If the defendant has repeatedly and
knowingly engaged in business with the plaintiff, the grant of jurisdiction is more
likely.
Universal rights
Australia and the United States are signatories to the UN International Covenant on
Civil and Political Rights (ICCPR). In Dow Jones, Kirby J argued that the
Australian courts must uphold the right to freedom of speech and freedom of
expression as enunciated in article 19 of the ICCPR:
Article 19
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Article 19
1. Everyone shall have the right to hold opinions without
interference.
2. Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other
media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this
article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only
be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre
public), or of public health or morals.
Kirby J was the only High Court Justice to address the effect of this article of the
covenant. However, his Honour balanced this with the requirements of articles 17.1
and 17.2:
Article 17
1. No one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home or correspondence, nor to
unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such
interference or attacks.
On the one hand Kirby J stated that any development of the common law of
Australia should be consistent with the ICCPR principles, to the extent that
Australian law does not provide effective legal protection for the honour,
reputation and personal privacy of individuals: ‘Australia, like other nations so
obliged, is rendered accountable to the relevant treaty body for such default’70
pursuant to the first Optional Protocol to the ICCPR.
On the other hand, he foreshadowed Dow Jones’ plea, stating the ‘the need for a
clear and single rule to govern the conduct in question according to pre-established
norms’.
In response to the High Court’s decision, Dow Jones issued a press release
supporting an action by William Alpert, the author of the article in question. In
2003 Alpert stated that he was filing an action with the Human Rights Commission
in Geneva, fearing unjustified restrictions on journalists. Alpert stated:
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I am filing this action with the Human Rights Commission in Geneva
because I fear restrictions on the ability of financial journalists such as
myself to report truthfully to United States investors on the activities of
foreigners who are actively engaged in the U.S. markets. I even fear for
our ability to report on U.S. corporations and business people, who might
see the High Court’s decision as an invitation to attack the U.S. press in a
remote forum. Given the differences between the laws of Australia and
those of other countries in the Commonwealth and beyond, the impact of
Australia’s law – as laid out by the High Cour – could harm journalists
throughout the world. Powerful and sophisticated plaintiffs could search
out overseas jurisdictions willing to help stifle news coverage that was
only directed at local readers in those journalists’ home markets.
Australia has accepted the jurisdiction of the U.N. Human Rights
Committee and is obliged to modify Australia’s libel laws, should the
Committee find that those laws unduly restrict the right of free speech
that’s protected under Article 19 of the International Convention on
Human Rights.
I hope that the Human Rights Committee will recognize the threat to
free speech – and an informed public – posed by Australian laws that
allow suit against any journalist, anywhere that an article published on
the internet can be downloaded. Perhaps the Government of Australia
will recognize the need to modify its laws, even before the Human Rights
Committee takes up this case.71
This foreshadowed action may have been politic, but it seems that it did not in fact
proceed.
Alternative approaches
Three days after the decision was handed down by the High Court in the Dow Jones
case, the 4th Circuit Appeals Court in the United States handed down its decision in
Young v New Haven Advocate .72 Two Connecticut newspapers published articles
on the internet allegedly defaming a Virginia resident. The New Haven Advocate
was a free newspaper published once a week in New Haven, Connecticut with a
small number of subscribers, none from Virginia. The Hartford Courant is a daily
newspaper distributed in and serving Hartford, Connecticut. The Courant had eight
mail subscribers residing in Virginia. Neither newspaper solicits subscriptions in
Virginia, nor maintains any offices or employees within that state. Both newspapers
posted some content on the internet. The articles included unfavourable comments
regarding a movement of inmates between prisons and prison conditions. Young
was the warden at one of the prisons and commenced action in Virginia against the
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newspapers and the journalists.
In a statement somewhat reminiscent of the Zippo interactivity test, the court said
that it would only accept personal jurisdiction where the defendant:
(1) directs electronic activity into the State, (2) with the manifested intent
of engaging in business or other interactions within the State, and (3) that
activity creates, in a person within the State, a potential cause of action
cognizable in the State’s courts.73
On the facts, the Appeals Courts held that as the newspapers were small
Connecticut-based publications which served ‘almost exclusively Connecticut
readers’, they would not be subject to jurisdiction in Virginia courts. The courts
reasoned that the defendants did not manifest an intent to engage in business or
other interactions in Virginia. The effects test in Calder v Jones was applied,
although more narrowly:
The facts in this case establish that the newspapers’ websites, as well as
the articles in question, were aimed at a Connecticut audience. The
newspapers did not post materials on the Internet with the manifest intent
on targeting Virginia readers. Accordingly, the newspapers could not
have ‘reasonably anticipate[d] being hauled into court [in Virginia] to
answer for the truth of the statements made in their article[s].’ Calder,
465 U.S. at 790 (quotation omitted). In sum, the newspapers do not have
sufficient Internet contacts with Virginia to permit the district court to
exercise specific jurisdiction over them.74
I n Healthgrades.com v Northwest Healthcare Alliance 75 the US Supreme Court
declined an opportunity to clarify the jurisdiction test when it denied certiorari
without opinion. The 9th Circuit Court of Appeals held that Washington State courts
may exercise personal jurisdiction over Healthgrades.com, a Delaware corporation
with its principal place of business in Colorado, in a defamation action arising out
of statements found on defendant’s website that caused injury to the plaintiff in
Washington. The statements were ratings of home healthcare providers, including
the Washington-based plaintiff. The Appeals Court approved and applied the
effects test of Calder v Jones:76
We find that defendant Healthgrades.com has purposefully interjected
itself into the Washington state home health care market through its
intentional act of offering ratings of Washington medical service
providers. This act was expressly aimed at plaintiff’s forum state, since
defendant was well aware that its rating of Washington home health care
providers would be of value primarily to Washington consumers…the
allegedly defamatory rating received by plaintiff on defendant’s website
concerned the Washington activities of a Washington resident. Finally,
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the brunt of the harm allegedly suffered by plaintiff occurred in
Washington – where plaintiff is incorporated, where plaintiff has its
principal place of business, and where plaintiff’s reputation is likely to
suffer if in fact it has been injured by defendant’s actions. The effects,
therefore, of defendant’s out-of-state conduct were felt in Washington.
Plaintiff’s claims arise from that out-of-state conduct, and defendant
could reasonably expect to be called to account for its conduct in the
forum where it understood the effects of its action would be felt.
While the underlying reasoning in HealthGrades and Young v New Haven appears
to differ, it can be argued that its application to the facts is identical: a newspaper,
even if published on the internet, may be aimed at a local audience, and a
healthcare rating service is aimed wherever the rated health care providers are
located.
Though the Dow Jones case caused international concern, its impact has been
limited, implicitly if not expressly, to subscription websites. In Ward Group Pty
Ltd v Brodie & Stone Plc 77 the Federal Court of Australia distinguished the Dow
Jones case:
As the allegedly defamatory publication was made available to
subscribers in Victoria on the Internet, no issue arose about the
publication of that material in Victoria. Therefore that case is of no
assistance to the Ward Group.78
However, the Federal Court accepted a test implicitly identical to the effects test in
Calder v Jones. The court held that the use of a trade mark on the internet, uploaded
on a website outside of Australia, without more, is not a use by the website
proprietor of the mark in each jurisdiction where the mark is downloaded.
However:
if there is evidence that the use was specifically intended to be made in,
or directed or targeted at , a particular jurisdiction then there is likely to
be a use in that jurisdiction when the mark is downloaded. Of course,
once the website intends to make and makes a specific use of the mark in
relation to a particular person or persons in a jurisdiction there will be
little difficulty in concluding that the website proprietor used the mark in
that jurisdiction when the mark is downloaded.79
In what began as an April Fools Day joke, Dow Jones, through its publication the
Wall Street Journal , published an article about the floating of shares by Harrods,
with the headline ‘The Enron of Britain?’ Action was commenced by Harrods in
England, claiming that the article caused serious damage to the company’s
reputation. Dow Jones filed suit in the Southern District of New York, seeking to
block the action. In the US case Judge Marrero said that Dow Jones was eager to
275
avoid a British trial because Britain’s libel laws were far more friendly to
plaintiffs.80 In a declaratory judgment, Judge Marrero expressed concern that any
relief granted by the New York Court would nevertheless be subject to recognition
and enforcement in the United Kingdom. Dow Jones argued that a declaratory
judgment was appropriate in that it would free them from ‘vexatious and
oppressive’ litigation abroad. In refusing relief, the judge held that granting
authority to enjoin foreign lawsuits should be done sparingly and only with care
and restraint.
Single publication rule
Most US states have adopted a single publication rule which treats all sales of a
defamatory book or newspaper as a single publication. The time of the single
publication (download) is fixed as the time of the first publication. In the United
Kingdom and Australia each publication gives rise to a separate cause of action.
That principle was confirmed by the English Court of Appeal in Loutchansky v
Times Newspapers Ltd (Nos 2–5).81
Samuels JA’s observation in Australian Broadcasting Corporation v
Waterhouse,82 that a single publication rule could only be introduced throughout
Australia by statute, was approved by Kirby J in Dow Jones v Gutnick.83
In the same case Gaudron J described the single publication rule as ‘a legal
fiction which deems a widely disseminated communication…to be a single
communication regardless of the number of people to whom, or the number of states
in which, it is circulated’.84 Dow Jones described the Australian position as
‘primitive’.
Callinan J rejected Dow Jones’ submission that publication occurs at one place,
such as the place where the matter is provided, or first published, on the grounds
that that view ‘cannot withstand any reasonable test of certainty and fairness’.
However, he expressed concern that publishers would set up in a ‘defamation free
jurisdiction’ or one in which the defamation laws are tilted towards defendants.
Why, he asked, ‘would publishers, owing duties to their shareholders to maximise
profits, do otherwise?’85
Gleeson CJ, McHugh, Gummow and Hayne JJ noted that in Firth v State of New
York86 the New York Court of Appeals decided that the one-year statute of
limitation in New York runs from the first posting of defamatory matter upon an
internet site and that the single publication rule applies to that first posting. The
Australian position on the position of the limitation period is yet to be determined.
In Harrods Limited v Dow Jones & Co. Inc.87 Justice Eady noted the limited
amount of publication in England (only 10 copies of the Wall Street Journal ) and
that there were very few English hits to the Wall Street Journal website.
Nevertheless jurisdiction was granted to protect a reputation in England. His
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Honour rejected the single publication rule, which provides that a defendant should
only be sued in the place of the first publication of the defamatory material, finding
instead that if a target of a publication is based in England, then an online or offline
publisher can be brought before the UK courts.
Substantial publication
Jurisdiction was not taken by the English courts in Jameel v Dow Jones & Co.
Inc.,88 where Dow Jones published the article ‘WAR ON TERROR, List of Early
al Qaeda Donors Points to Saudi Elite, Charities’ in the Wall Street Journal ,
allegedly defaming Yousef Jameel, a Saudi businessman. Jameel was unable to
prove ‘substantial harm’. Although there were 6000 online subscribers to the Wall
Street Journal, technical evidence showed that only five subscribers had actually
accessed the article, and that three of those five were associated with Jameel. The
other two subscribers had no knowledge of or connection to Jameel. The court
ruled that without a ‘substantial’ publication in England, there could have been no
damage to Jameel’s reputation.
Uniform defamation legislation – choice of law
From 1 January 2006, in all states and territories in Australia except the Northern
Territory, legislation for uniform defamation law commenced:89
Choice of law for defamation proceedings
(1) If a matter is published wholly within a particular Australian
jurisdictional area, the substantive law that is applicable in that
area must be applied in this jurisdiction to determine any cause
of action for defamation based on the publication.
(2) If there is a multiple publication of matter in more than one
Australian jurisdictional area, the substantive law applicable
in the Australian jurisdictional area with which the harm
occasioned by the publication as a whole has its closest
connection must be applied in this jurisdiction to determine
each cause of action for defamation based on the publication.
(3) In determining the Australian jurisdictional area with which the
harm occasioned by a publication of matter has its closest
connection, a court may take into account:
(a) the place at the time of publication where the plaintiff was
ordinarily resident or, in the case of a corporation that may assert a cause
277
of action for defamation, the place where the corporation had its
principal place of business at that time, and
(b) the extent of publication in each relevant Australian jurisdictional
area, and
(c) the extent of harm sustained by the plaintiff in each relevant
Australian jurisdictional area, and
(d) any other matter that the court considers relevant.90
Subsection (2) in particular assist in determining jurisdiction within Australia. This
provision is in part a codification of the ‘effects test’ postulated in the US case of
Calder v Jones.91
Conclusion
The application of traditional rules has proved appropriate for cases such as
Bensusan and Macquarie Bank. Where the internet is used peripherally – for
example, where conduct remains in a single, specific, geographical location – the
mere use of the internet should not complicate the application of the jurisdictional
principles.
In the absence of an unusual feature involving the internet as the medium of
choice, courts should apply the usual principles for jurisdictional questions. Quite
often there are a number of factors involved in a given dispute, including the use of
the telephone and mail. Any peripheral effect of the internet should be disregarded
unless it is central to the dispute. Where the internet is central to a dispute,
consideration should be given to the effect of non-internet factors. The mere
possibility of access to a website should be insufficient grounds for jurisdiction.
Similarly, the mere viewing of a site, as opposed to engaging in some further
interaction, should be disregarded. The courts should adopt the distinction between
passive and active sites. The greater the degree of interactivity the greater the
likelihood that the site’s owner is engaging, or should be aware that he or she is
engaging, in commerce with the user. Correspondingly, where the site owner
purposefully avails himself or herself of the benefits of commerce from that
jurisdiction, he or she should be more likely to be subject to that jurisdiction. If
courts take jurisdiction too broadly or recklessly there should be legislative
intervention to impose a fairness requirement similar to the approach taken in the
US cases.92 The effect of action by the defendant and its likelihood to result in harm
to a known target will also affect the courts’ reasoning in taking jurisdiction.
The development of the internet permits various uses.93 Distinctions will
continue to be made between the intended, expected and foreseeable consequences
of those uses. The typical website is open to the world, and evidence of use and
access within a court’s jurisdiction is necessary before that court will grant
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jurisdiction. The same cannot be said of subscription websites, where it is
reasonable to assume use and access by subscribers. Discussion forums or bulletin
boards may similarly be open or closed. Proof of use and of impact are necessary
for jurisdiction to be granted. Electronic mail is less of an issue as it is typically
targeted. Nevertheless, the location of the recipient, the computer and server
become complicating factors.
Further reading
Anonymous, ‘A “category-specific” legislative approach to the internet
personal jurisdiction problem in US law’, (2004) 117 Harv L Rev 1617.
Cohen, Debra, ‘The single publication rule: One action, not one law’, (1966)
62 Brooklyn Law Review 921.
1 Kirby J, Dow Jones v Gutnick [2002] HCA 56, para 112.
2 See secondlife.com and www.facebook.com.
3 See Peter Nygh
and Martin Davies
, Conflict of laws in Australia, 7th edn, LexisNexis, Sydney, 2002.
4 See Vita Food Products Inc. v Unus Shipping Co. [1939] AC 277, per Lord
Wright.
5 For example, see Golden Acres Ltd v Queensland Estates Pty Ltd [1969]
Qd R 378, and Minnesota v Granite Gate Resorts Inc. 568 NW 2d 715.
6 See Atlantic Underwriting Agencies Ltd v Compagnia di Assicuranzione di
Milano SpA [1979] 2 Lloyds Rep 240.
7 See Re United Railways of the Havana and Regla Warehouses Ltd [1960]
Ch 52 and Mendelson-Zeller Co. Inc. v T & C Providores Pty Ltd
[1981] 1 NSWLR 366.
8 See Spiliada Maritime Corporation Ltd v Cansulex Ltd [1987] AC 460.
9 See Oceanic Sun Line Special Shipping Co. v Fay (1988) 62 ALJR 389;
Voth v Manildra Flour Mills Pty Ltd (1990) 65 ALJR 83; Henry v
Henry (1996) 185 CLR 571.
10 [2002] HCA 10.
11 [2002] HCA 56; (2002) 210 CLR 575.
12 [2002] HCA 56, [15]–[16]; (2002) 210 CLR 597–98.
13 [2002] HCA 56; on appeal from Gutnick v Dow Jones [2001] VSC 305
and Dow Jones Company Inc. v Gutnick [2001] VSCA 249. See,
279
generally, ‘A “category-specific” legislative approach to the internet
personal jurisdiction problem in US law’, (2004) 117 Harv LR 1617.
14 [2001] VSC 305, para 3.
15 Australian Railways Union v Victorian Railways Commissioners (1930)
44 CLR 319 at 33, per Dixon J.
16 See M Kirby
, ‘Privacy in cyberspace’, (1998) UNSWLJ 47.
17 [2001] VSC 305, paras 15–20.
18 [2001] VSC 305, paras 70 and 71.
19 [1999] NSWSC 526.
20 960 F. Supp. 456 (D Mass 1997).
21 [1998] CLJ 188.
22 [1998] OJ No. 2537 QL (Ont Gen Div).
23 [2001] QB 201.
24 465 US 783 (1984).
25 Counsel also referred to R v Burdett (1820) 4 B & Ald 115.
26 [2001] VSC 305, para 75.
27 [2001] VSC 305, para 131.
28 [2001] VSC 305, para 129.
29 Dow Jones v Gutnick [2001] VSCA 249. This judgment was less than two
pages.
30 [2002] HCA 56, para 117.
31 [2002] HCA 56, para 79.
32 [2002] HCA 56, para 51.
33 [2002] HCA 56, para 166.
34 Postscript: The High Court of Australia determined that the Supreme Court
of Victoria had jurisdiction, but it did not determine liability. The issue
of defamation did not reach the court. Dow Jones made an out of court
payment of $450,000, but claimed that the payment was not for
defamation. Dow Jones claimed it was in the right and that the payment
would not cover Gutnick’s legal costs. Gutnick claimed vindication.
35 [2002] HCA 56, para 54.
36 465 US 783 (1984).
37 465 US 783 (1984), 788–89.
38 For example by Hedigan J in Gutnick v Dow Jones [2001] VSC 305 and
280
Healthgrades.com v Northwest Healthcare Alliance No. 01-35648 (9th
Cir 2002).
39 See G Williams
, ‘Venue and the Ambit of Criminal Law’, Part 3, (1965) 81 Law Quarterly
Review 518.
40 Ward v R [1980] HCA 11, para 4 per Stephen J.
41 [2002] HCA 56, para 24.
42 [1999] NSWSC 526.
43 [1999] NSWSC 526, para 12.
44 [1999] NSWSC 526, para 14.
45 937 F. Supp. 161 (D Conn 1996).
46 [1999] NSWSC 526, see paras 14–16.
47 [2002] NSWSC 138.
48 [2002] NSWSC 138, para 12.
49 [2002] NSWSC 254.
50 See below.
51 [2002] NSWSC 254, para 55.
52 [2002] NSWSC 254, para 41.
53 [2001] FCA 1062.
54 For example, see the British Columbia Court of Appeal in Braintech Inc. v
Kostiuk (1999) 63 BCLR (3d) 156 and the High Court of Delhi in Yahoo
Inc. v Akash Arosa [1999] FSR 931.
55 326 US 310 (1945).
56 326 US 310 (1945), 316.
57 937 F. Supp. 161 (D Conn 1996). See also Maritz Inc. v Cybergold Inc.
947 F. Supp. 1328 (ED Mo 1996).
58 568 NW 2d 715.
59 952 F. Supp. 1119 (WD Pa 1997). See also Helicopteros Nationales de
Columbia SA v Hall 466 US 408.
60 952 F. Supp. 1119, 1124 (WD Pa 1997).
61 937 F. Supp. 296 (SD NY 1996).
62 See also Cybersell Inc. v Cybersell Inc. 130 F. 3d 414 (9th Cir 1997).
63 977 F. Supp. 327 (D NJ 1997).
64 See also Casio India Co. Ltd v Ashita Tele Systems Pvt Ltd (2003 (27)
PTC 265 (Del)), where the Delhi High Court held that once a website
281
can be accessed from Delhi, it is enough to invoke the territorial
jurisdiction of the court.
65 Zippo Manufacturing Co. v Zippo Dot Com Inc. 952 F. Supp. 1119 (WD
Pa 1997), 1124.
66 89 F. 3d 1257 (6th Cir 1996).
67 939 F. Supp. 1032 (SD NY 1996).
68 Zippo Manufacturing Co. v Zippo Dot Com Inc. 952 F. Supp. 1119 (WD
Pa 1997), 1124.
69 Criticism has been levelled at the minimum contacts test in relation to the
internet and as to what level of interactivity is required to trigger
jurisdiction. The required level of ‘interactivity’ can be gleaned from
Compuserve v Patterson 89 F. 3d 1257 (6th Cir 1996) and Cybersell
Inc. v Cybersell Inc. 130 F. 3d 414 (9th Cir 1997).
70 Dow Jones v Gutnick [2002] HCA 56, para 116.
71 Dow Jones press release, April 2003.
72 315 F. 3d 256 (4th Cir 2003)
73 The court was quoting from Scan Inc. v Digital Service Consultants Inc.
293 F. 3d 707, 714 (4th Cir 2002).
74 Young v New Haven Advocate 315 F. 3d 256, 264 (4th Cir 2003).
75 No. 01-35648 (9th Cir 2002).
76 See above.
77 [2005] FCA 471.
78 [2005] FCA 471, para 42.
79 [2005] FCA 471, para 43, emphasis added.
80 Dow Jones & Co. Inc. v Harrods Ltd, 237 F. Supp. 2d 394 (SD NY 2002).
81 [2002] QB 783.
82 (1991) 25 NSWLR 519.
83 [2002] HCA 56, para 127.
84 [2002] HCA 56, para 57. See Debra Cohen, ‘The single publication rule:
One action, not one law’, (1966) 62 Brooklyn Law Review 921.
85 [2002] HCA 56, para 199.
86 775 NE 2d 463 (2002).
87 [2003] EWHC 1162.
88 [2005] EWCA Civ 75.
89 The Northern Territory’s uniform legislation commenced on 26 April 2006.
See Chapter 12.
282
90 Defamation Act 2005 (NSW) s11, Defamation Act 2005 (Qld) s11,
Defamation Act 2005 (Tas) s11, Defamation Act 2005 (Vic) s11,
Defamation Act 2005 (WA) s11, Defamation Act 2005 (SA) s11;
Defamation Act 2006 (NT) s10; and Civil Law (Wrongs) Act 2002
(ACT) s123.
91 See Effects test, above.
92 In relation to due process and the 14th Amendment; International Shoe Co.
v Washington 326 US 310.
93 For example, Australian Football League v Age Company Ltd [2006]
VSC 308 involved a discussion forum. The Victorian Supreme Court
described the discussion forum as enabling ‘opinions, gossip, trivia,
rumour and speculation to be published as an assertion of fact by
anonymous contributors’ (para 55).
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12 Defamation in cyberspace
From the beginning, the boundaries of appropriate and acceptable behaviour on the
internet have been challenged. The notion of the internet as the last bastion of free
speech has produced a general mindset that the laws that bind and regulate social
behaviour should not apply in that space. Arguably, the laws that have been most
challenged relate to intellectual property rights. However, there has developed a
sense that anything written in an electronic forum should somehow be immune from
oversight and censure. Courts internationally have disagreed with this view,
particularly in the realm of defamation.
There is no universal definition of defamation, and so no one set of common
elements that need to be satisfied in all jurisdictions. Articles 17 and 19 of the UN
International Covenant on Civil and Political Rights (ICCPR) provide for both
freedom of expression and the right to hold opinions, but balance these rights and
freedoms with considerations of unlawful interference, privacy and the protection
of honour and reputation.1
These articles were considered and applied by Kirby J in the internet defamation
case of Dow Jones v Gutnick.2 (The case concerned the reputation of a Melbournebased businessman, Joseph Gutnick, who alleged that the Dow Jones corporation
defamed him by publishing an article titled ‘Unholy Gains’ in Barrons, an
international financial magazine. Barrons could be purchased in hardcopy or
readers could subscribe online.) According to Kirby J:
any development of the common law of Australia, consistent with such
principles, should provide effective legal protection for the honour,
reputation and personal privacy of individuals. To the extent that our law
does not do so, Australia, like other nations so obliged, is rendered
accountable to the relevant treaty body for such default.3
The laws dealing with defamation have always struggled, in a philosophical sense,
with freedom of speech, freedom of the press, the framing of political debate, and
the public disclosure of malfeasance, as these have all in some ways always
inherently contradicted the rights of protection afforded by the principles of
defamation. While the ‘truth’ of defamatory remarks has generally been held to be a
defence to defamation suits,4 the burden of proof for establishing truth has
occasionally been shown to be so onerous as to destroy any protection afforded by
this defence.
The opportunity for a significant body of ‘e-defamation’ case law to develop has
been limited. Many jurisdictions are struggling with content-specific issues of
cyberspace and have yet to address the implications of content, such as its effect on
reputation. Defamation law in cyberspace will be tested in the courts and the
284
interface between the law and the internet will continue to be built.
Any discussion of the law of defamation in cyberspace must be conducted in
conjunction with a discussion of jurisdictional issues in cyberspace.5 This chapter
will provide an overview of the legal position regarding online defamation in
Australia and, to some extent, in the north American and UK jurisdictions.
Defamation principles
Kirby J in Dow Jones v Gutnick6 restated defamation principles in the following
terms:
First, a starting point for the consideration of the submission must be an
acceptance that the principles of defamation law invoked by the
respondent are settled and of long standing. Those principles are:
(1) that damage to reputation is essential for the existence of the tort
of defamation;
(2) that mere composition and writing of words is not enough to
constitute the tort; those words must be communicated to a third
party who comprehends them;
(3) that each time there is such a communication, the plaintiff has a
new cause of action; and
(4) that a publisher is liable for publication in a particular
jurisdiction where that is the intended or natural and probable
consequence of its acts.7
Defamation reform
The law of defamation in Australia is provided by state and territory legislation.
Until recently it has differed quite significantly between jurisdictions, particularly
in terms of the elements that need to be satisfied to establish an action for
defamation. The term ‘defamation’ has historically been a composite tort
expression encompassing both slander and libel, each of these being separate torts
for verbal and written defamation respectively, and this distinction persists in some
jurisdictions. All state and territory jurisdictions recently reformed their statutes in
order ‘to ensure the law of defamation within the State(s)…is uniform in substance
with the law of defamation in all Australian jurisdictions’.8
One of the reforms provides for the abolition of the distinction between spoken
and published defamation. None dealt specifically with online defamation. The
Working Group of State and Territory Officers that created the reform proposals
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did, however, highlight the need for the defence of ‘innocent dissemination’ to be
drafted in such a way as to ‘ensure that the defence takes proper account of modern
means of mass communication and the problems associated with its monitoring’.9
This has been reflected in the legislation by provisions that exempt from the
definition of ‘primary distributor’ those who provide services for ‘the processing,
copying, distributing or selling of any electronic medium in or on which the matter
is recorded or 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’.10
These reforms were specifically aimed at standardising the legislative response
to the case law across all state and territory jurisdictions, not at codifying the
existing case law. The revised statutes do not affect the operation of the precedents
already in law except to the extent that the statutes specifically provide.
Defamation in cyberspace – actions and issues
It has been established by both Australian courts and courts in other jurisdictions
that a person may be defamed in an online forum and that damages may be awarded.
The decision of the Supreme Court of Western Australia in 1993 in Rindos v
Hardwick11 was the first internet-based defamation determination in any
jurisdiction. The decision did not advance principles of online defamation but the
award of $40 000 in damages for untrue allegations of paedophilia demonstrated
that a person can be held liable for statements made in the public space of the
internet.
There have been few defamation actions related to online publication to date.12
In the Australian context, this is likely to remain so given that the defamation
reforms of 2006 specifically provide for an ‘offer of amends’ process that must
precede formal litigation.13 Historically, the introduction of such alternative dispute
resolution mechanisms has resulted in a reduction in litigation; the impact on
defamation actions is likely to be the same.
Electronic publications using the internet increase the scope of defamation
actions in three ways. First, it is an additional mode of communication: many
newspapers, magazines and media outlets republish their material online, and radio
and television stations also place videos, sound files or transcripts online. Second,
online publication of new material, including material that is otherwise intended to
be relatively private, has a broad reach. Third, the broader reach can affect the
amount of damages. Publication can occur through:
• the sending and redistribution of emails;
• postings to bulletin boards, news groups or discussion lists;
• chat rooms;
• information placed on web pages, including text, sound and video; and
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• files that are made available for downloading.
These actions can occur easily and unintentionally, and can reach a large and
indeterminate audience. In Australia, a separate cause of action arises each time
defamatory material is published (see Single publication rule, below). This means
that when defamatory material on the internet is downloaded and read, a new cause
of action arises. If a person merely repeats another’s defamatory statement, a new
and separate cause of action arises,14 so employees who forward defamatory
emails may also be liable.
It is often the case that the authors of defamatory statements are protected from
legal proceedings by their impecuniosity; those damaged may then seek out a party
more likely to be able to meet any damages awards. This is often unsuccessful
because the law in many jurisdictions allows a publisher or disseminator
protection through the principle of ‘innocent dissemination’. Such ‘innocence’ is
greatly qualified, however, and defendants using this defence have a high
evidentiary burden in many jurisdictions. In Australia, the innocent dissemination
defence appears in every state and territory jurisdiction:
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
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(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.15
I n Stratton Oakmont Inc. v Prodigy Services Co.,16 the innocent dissemination
defence was disallowed in the Supreme Court of New York. Prodigy Services Co.
(Prodigy) was an online provider of a website that offered internet forum services
to subscribers. Unlike most providers, Prodigy sought to differentiate itself in the
market by providing a degree of censorship on the site. This censorship was
minimal, comprising only a software-driven review of content for a preset range of
specific words, mostly profanities. Prodigy did not advertise the limitations of its
censorship role. When one of Prodigy’s site users posted defamatory material in a
forum about Stratton Oakmont Inc., the court was asked to determine the extent to
which Prodigy’s limited censorship program constituted editorial control. The court
determined that while Prodigy in fact had no specific knowledge of the defamatory
content, the fact that they practised some editorial control and informed users of that
meant that they were liable for the defamation and could not claim innocent
dissemination.
There was some initial misinformation regarding the Prodigy decision. One
interpretation appeared to be that any control over the content to be disseminated
would make the administrator liable. Administrators and Internet Service Providers
(ISPs) thus often chose not to censor sites to avoid liability. In the United States,
section 230(c)(1) of the Communications Decency Act 1996 (US) effectively
overturned this restrictive interpretation of the Prodigy decision:
No provider or user of an interactive computer service shall be treated as
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the publisher or speaker of any information provided by another
information content provider.
This section excludes administrators, ISPs and other service providers from
liability for defamatory statements made by users of public systems unless they
know of defamatory material and fail to take action on it, or are themselves
involved in either the creation or development of the material.17 Critics of the
section claim that it is too broad, but it is yet to be repealed or modified. In Barrett
v Rosenthal the court stated (in obiter):
We conclude that section 230 prohibits ‘distributor’ liability for Internet
publications. We further hold that section 230(c)(1) immunizes
individual ‘users’ of interactive computer services, and that no practical
or principled distinction can be drawn between active and passive use.
We acknowledge that recognizing broad immunity for defamatory
republications on the Internet has some troubling consequences. Until
Congress chooses to revise the settled law in this area, however,
plaintiffs who contend they were defamed in an Internet posting may only
seek recovery from the original source of the statement.18
In Cubby v CompuServe,19 CompuServe was the administrator for an online forum.
However, unlike Prodigy, CompuServe did not exercise any editorial control over
the online forum content. The court intimated, but did not specifically find, that
electronic publishers ought not be found liable for content on sites hosted on their
servers in these circumstances:
[the] requirement that a distributor must have knowledge of the contents
of a publication before liability can be imposed for distributing that
publication is deeply rooted in the First Amendment, made applicable to
the states through the Fourteenth Amendment.20
CompuServe’s defence was aided by the fact that the system operators for their
online forums were independent entrepreneurs who were contracted to ‘manage,
review, create, delete, edit and otherwise control the contents’ 21 of the forum on
which the offensive material appeared. Cubby also sought to hold CompuServe
vicariously liable for the libel, but the court held there to be no agency between the
defendant and the other parties to the libel.
Statute of limitations
The question of precisely when a defamatory tort occurs (for the purposes of
deciding when a Statute of Limitation commences to operate) was addressed by the
New York Court of Appeals in Firth v State of New York 22 and considered by the
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High Court of Australia in Dow Jones v Gutnick.23 The difficulty in relation to
online publication is that, unlike other forms of publication, internet publication is
continuous: 24 hours a day, seven days a week. Also, material placed online two
years ago may only come to the attention of the general public after some form of
publicity or report in the news. In Australia the limitation for commencing legal
proceedings is one year from publication, with extensions of up to three years in
limited circumstances.24
The US court held that the statute runs from the first posting of the defamatory
article onto an internet site. In Australia the question has not definitively been
decided.
Single publication rule
Strictly speaking, a defamatory utterance or publication arises each time a
newspaper or book is sold or read, or separately in the homes of each person who
hears or views a radio or television broadcast. A rule of convenience has
developed to treat these multiple actions as one. The rule has been described as ‘a
legal fiction which deems a widely disseminated communication…to be a single
communication regardless of the number of people to whom, or the number of states
in which, it is circulated’.25
Applying this principle to internet web pages is a minefield. As a continuous
publication, the defamatory statement may be read, heard or viewed at completely
different times, perhaps over a number of years, in locations all over the world.
In their joint judgment in Dow Jones v Gutnick,26 Gleeson CJ, McHugh,
Gummow and Hayne JJ considered the single publication rule and its development
in relation to the place of publication.
To trace, comprehensively, the origins of the so-called single publication
rule…may neither be possible nor productive. It is, however, useful to
notice some of the more important steps that have been taken in its
development. Treating each sale of a defamatory book or newspaper as a
separate publication giving rise to a separate cause of action might be
thought to present difficulties of pleading and proof. Following early
English authority holding that separate counts alleging each sale need not
be pleaded in the declaration, American courts accepted that, where the
defamatory matter was published in a book or newspaper, each
publication need not be pleaded separately. Similarly, proof of general
distribution of a newspaper was accepted as sufficient proof of there
having been a number of separate publications. It was against this
background that there emerged, at least in some American States by the
late nineteenth century, the rule that a plaintiff could bring only one action
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against a defendant to recover damages for all the publications that had
by then been made of an offending publication. The expression ‘one
publication’ or, later, ‘single publication’ was first commonly used in
this context.
In the early decades of the twentieth century, the single publication rule
came to be coupled with statements to the effect that the place of that
single publication was the place where the newspaper or magazine was
published. The source of this added proposition was given as a case of
prosecution for criminal libel where the question was that raised by the
Sixth Amendment to the United States Constitution and its reference to the
‘state or district wherein the crime shall have been committed.’ Despite
this difference in the context in which the question of location arose, the
statement that the place of publication was where the newspaper or
magazine was published was sometimes taken as stating an element of (or
at least a consequence of) the single publication rule applied to civil
defamation suits.27
In Firth v State of New York 28 the court noted that the rationale behind the single
publication rule was even more applicable to the internet, as there is greater
potential there for multiple triggerings of the statute of limitations as well as for
multiple suits and vexatious actions. The court regarded unrelated modifications to
the website as insufficient to restart the one year limitation period. This is to be
distinguished from the issue of a new edition of a book, which is sold to a new and
different readership.
The principle of the single publication rule is codified in legislation only in the
United States. It has not found favour in United Kingdom or Australasian
jurisdictions. The Uniform Single Publication Act (US) provides that multistate
defamation must be dealt with in one jurisdiction and that the findings of the court
in that jurisdiction are binding on the plaintiff in all other jurisdictions for any
single defamatory publication. The Uniform Single Publication Act is legislation
that becomes law when a state enacts it. Its aim is to create a template. It has been
widely adopted across the United States with very similar wording to this:
No person shall have more than one (1) cause of action for damages for
libel, slander, invasion of privacy or any other tort founded upon a single
publication, exhibition or utterance, such as any one (1) edition of a
newspaper, book or magazine, any one presentation to an audience, any
one (1) broadcast over radio or television or any one (1) exhibition of a
motion picture. Recovery in any action shall include all damages for any
such tort suffered by the plaintiff in all jurisdictions.29
In the United Kingdom the House of Lords was called upon to deal with the single
publication rule in the defamation case of Berezovsky v Michaels. 30 An article
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published online was alleged to have defamed two Russian businessmen residing in
Britain. The article was published by the Forbes Corporation in hardcopy and on
their website. Their Lordships held that ‘The Uniform Single Publication Act does
not assist in selecting the most suitable court for the trial: it merely prevents a
multiplicity of suits’. The court stated that English law could find ‘no support for
this argument’ but then reiterated their support for the long-established legal
principle that ‘each publication is a separate tort’.31
In the Dow Jones case, Dow Jones sought to persuade the court that as they were
incorporated in the United States, and the server upon which the defamatory
material was published was also physically located in that country, the most
appropriate forum was the United States. The High Court disagreed on a number of
grounds, including that Victoria was not a ‘clearly inappropriate forum’ to hear the
action. The court expressed concerned that applying a single publication rule for
internet-based defamation (in Australia) would in effect differentiate such
defamation from all other types of defamation.
Kirby J gave a number of reasons for ‘declining an Internet-specific single
publication rule’. First, he concluded that the court could not justify changing the
rules of Australian common law merely as a response to the Dow Jones
submission. Second, he added:
Where rules such as these are deeply entrenched in the common law and
relate to the basic features of the cause of action propounded, their
alteration risks taking the judge beyond the proper limits of the judicial
function.32
Third, he expressed concern about a separate rule for the internet, stating that
‘Rules should be technology-neutral.’33 Fourth, he noted that there would be
‘special difficulties’ in achieving judicial reform of the multiple publication rule in
Australian law, even if such reform were warranted.34
In the absence of a specific single publication rule, Australian courts have
estopped parties from raising the same issue in subsequent litigation. It was said in
Henderson v Henderson that:
where a given matter becomes the subject of litigation in, and of
adjudication by, a Court of competent jurisdiction, the Court requires the
parties to that litigation to bring forward their whole case, and will not
(except under special circumstances) permit the same parties to open the
same subject of litigation in respect of matter which might have been
brought forward as part of the subject in contest, but which was not
brought forward, only because they have, from negligence, inadvertence,
or even accident, omitted part of their case.35
Single controversy principle
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Australian courts have de facto adopted a ‘single controversy’ principle: where
there are multiple publications of the same defamatory matter there is only a ‘single
controversy’ to be litigated. That controversy must include all separate utterances
of the defamatory allegation, in order to properly determine breach and damages.
The cases to date have not adequately addressed the issues of timing and place,
particularly where internet publication is concerned.
Single cause rule
The single publication rule is not to be confused with the ‘single cause’ provision
in the uniform Defamation Acts across Australia, which provides that:
A person has a single cause of action for defamation in relation to the
publication of defamatory matter about the person even if more than one
defamatory imputation about the person is carried by the matter.36
Adventitious or opportunistic conduct
In Dow Jones, both parties raised the issue of adventitious or opportunistic
conduct.37 Dow Jones claimed that permitting jurisdiction in Victoria – that is, at
the place of download rather than the place of upload – would encourage plaintiffs
to commence actions in jurisdictions with favourable defamation laws. Gutnick’s
response was that should a plaintiff improperly attempt to take such an advantage,
the courts should consider rejecting jurisdiction. He claimed that his choice of
venue was not adventitious or opportunistic: Victoria was the place of his
residence and his prime business interests.
Gutnick claimed that permitting jurisdiction in New Jersey – that is, at the place
of upload rather than the place of download – would encourage defendants to move
their servers to jurisdictions with weak defamation laws. Dow Jones’ response
was a copy of Gutnick’s: should a defendant improperly attempt to take such an
advantage, the courts should consider rejecting jurisdiction. Equally, Dow Jones
claimed that its choice of location for the server was not adventitious or
opportunistic.
Jurisdiction for defamatory statement
To date the definitive online defamation case in Australian jurisprudence remains
Dow Jones v Gutnick.38
The High Court held firm to the Australian legal doctrine that forum non
conveniens can only be applied by determining whether or not the Australian forum
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is ‘clearly inappropriate’.39 The burden under this doctrine rests with the applicant.
To succeed in this, and thereby have the matter removed to another forum, the
applicant must demonstrate under the ‘Spiliada principles’ that their preferred
forum, in this case the United States, was the ‘natural forum’ in which to hear the
matter. In Spiliada Maritime Corp. v Cansulex Ltd,40 Lord Goff described the
‘natural forum’ as being ‘that with which the action had the most real and
substantial connexion’. In the Dow Jones case, the court declined to refuse the
exercise of its jurisdiction, holding that when ‘Victorian law was the lex loci
delicti, Victoria is the natural forum [and]…the appropriate and the convenient
forum’.41
Conclusion
While much of the law dealing with online defamation and other torts committed on
the internet is still in its earliest days of development and interpretation, some
general principles have already emerged. The first is that it would appear that for
the purposes of mitigating risk, it is wiser for forum providers to not provide any
editorial control whatsoever – and to advertise this fact widely.
Next, employers would be well advised to ensure that there are rigorous and
effective systems in place to prevent employees from putting the firm into a
defensive position. These might include a staff training régime, a compulsory Code
of Conduct, and clear guidelines on the roles and responsibilities of every
employee who is exposed to the internet as part of their normal duties.
As the law develops, and both governments and industry groups better
understand their rights and responsibilities in this domain, the law will be
developed and amended to provide direction and protection for those most at risk.
Further reading
Australian Law Reform Commission, (1992) Choice of law, Report No. 58.
Australian Law Reform Commission, (1979) Unfair publication:
Defamation and privacy, Report No. 11.
Debra Cohen, ‘The single publication rule: One action, not one law’, (1966)
62 Brooklyn Law Review 921.
Uta Kohl, ‘Defamation on the internet – A duty free zone after all? Macquarie
Bank Ltd & Anor v Berg’, (2000) 22 Sydney Law Review.
Lyrissa Barnett Lidsky, ‘Silencing John Doe: Defamation & discourse in
cyberspace’, (2000) 49 Duke L J 855.
Ken S Myers, ‘Wikimmunity: Fitting the Communications Decency Act to
Wikipedia’, (2006) 20 Harvard Journal of Law and Technology 163.
294
David Rolph, ‘Before the High Court – the massage, not the medium:
Defamation, publication and the internet in Dow Jones & Co Inc. v
Gutnick’, (2002) 24 Sydney Law Review 263.
Standing Committee of Attorneys-General (SCAG) Working Group of State
and Territory Officers, Legislation and Policy Division of the NSW
Attorney General’s Department, (2004), Proposal for Uniform Defamation
Laws,
www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA26
1 See Chapter 11.
2 [2002] HCA 56. See Chapter 11.
3 [2002] HCA 56, para 116. See also Chakravarti v Advertiser Newspapers
Ltd [1998] HCA 37; (1998) 193 CLR 519, 575.
4 Defamation Act 2005 (Qld) s26, Defamation Act 2005 (NSW) s26,
Defamation Act 2005 (Vic) s26, Defamation Act 2005 (Tas) s26,
Defamation Act 2005 (WA) s26; Defamation Act 2005 (SA) s24;
Defamation Act 2006 (NT) s23; Civil Law (Wrongs) Act 2002 (ACT)
s136.
5 See Chapter 11.
6 [2002] HCA 56.
7 [2002] HCA 56, para 124.
8 Standing Committee of Attorneys-General (SCAG) Working Group of State
and Territory Officers, Legislation and Policy Division of the NSW
Attorney General’s Department, (2004) Proposal for Uniform
Defamation Laws.
9 Recommendation 12: The common law defence of innocent dissemination
should apply, with careful drafting to ensure that the defence takes proper
account of modern means of mass communication and the problems
associated with its monitoring.
10 Defamation Act 2005 (Qld) s32(3)(f)(i) and (ii); Defamation Act 2005
(NSW) s32(3)(f)(i) and (ii); Defamation Act 2005 (Vic) s32(3)(f)(i) and
(ii); Defamation Act 2005 (Tas) s32(3)(f)(i) and (ii); Defamation Act
2005 (WA) s32(3)(f)(i) and (ii); Defamation Act 2005 (SA) s30(3)(f)(i)
and (ii); Defamation Act 2006 (NT) s29(3)(f)(i) and (ii); Civil Law
(Wrongs) Act 2002 (ACT) s139C(3)(f)(i) and (ii).
11 (1993) Unreported decision of the Supreme Court of Western Australia,
case 1994 of 1993.
12 See The Buddhist Society of Western Australia Inc. v Bristile Ltd [2000]
WASCA 210.
13 Defamation Act 2005 (Qld) Part 3; Defamation Act 2005 (NSW) Part 3;
295
Defamation Act 2005 (Vic) Part 3; Defamation Act 2005 (Tas) Part 3;
Defamation Act 2005 (WA) Part 3; Defamation Act 2005 (SA) Part 3;
Defamation Act 2006 (NT) Part 3; Civil Law (Wrongs) Act 2002 (ACT)
Part 9.3.
14 See McLean v David Syme & Co. Limited (1970) 72 SR (NSW) 513.
15 Defamation Act 2005 (Qld) s32; Defamation Act 2005 (NSW) s32;
Defamation Act 2005 (Vic) s32; Defamation Act 2005 (Tas) s32;
Defamation Act 2005 (WA) s32; Defamation Act 2005 (SA) s30;
Defamation Act 2006 (NT) s29; Civil Law (Wrongs) Act 2002 (ACT)
s139C; Defamation Act (NZ) s8.
16 1995 WL 323710 (NY Sup Ct 1995).
17 Ken S Myers
, ‘Wikimmunity: Fitting the Communications Decency Act to Wikipedia’,
(2006) 20 Harvard Journal of Law and Technology 163.
18 (2006) 40 Cal 4th 33; 146 P. 3d 510.
19 776 F. Supp. 135 (SD NY 1991).
20 776 F. Supp. 135 (SD NY 1991), 136.
21 Ibid.
22 706 NYS 2d 835.
23 [2002] 210 CLR 575 at 602–603.
24 Limitation Act 1969 (NSW) ss14B and 56A; Limitation of Actions Act
1974 (Qld) ss10AA and 32A; Limitation of Actions Act 1936 (SA)
s37(1) and (2); Defamation Act 2005 (Tas) s20A(1) and (2); Limitation
of Actions Act 1958 (Vic) s23B; Limitation Act 2005 (WA) ss15 and
40(3); Limitation Act 2005 (NT) ss12(2)(b) and 44A(2); Limitation Act
1985 (ACT) s21B(1) and (2). Limitation Act 1950 (NZ) s4 provides for
a two year limitation period with a maximum extension to four years.
25 Debra Cohen
, ‘The single publication rule: One action, not one law’, (1966) 62 Brooklyn
Law Review 921, 924. See Chapter 11.
26 [2002] 210 CLR 575.
27 [2002] 210 CLR 575, paras 33–34.
28 706 NYS 2d 835.
29 Idaho Single Publication Act s6-702.
30 [2000] UKHL 28.
31 [2000] UKHL 28.
296
32 [2002] HCA 56, para 124.
33 [2002] HCA 56, para 125.
34 See Australian Broadcasting Corporation v Waterhouse (1991) 25
NSWLR 519 at 537. See also Australian Law Reform Commission,
Unfair Publication: Defamation and Privacy, Report No. 11, (1979),
60–61, para; Australian Law Reform Commission, Choice of Law,
Report No. 58, (1992), 57 paras 6.53–54.
35 [1843] 3 Hare 100, 115; 67 ER 313, 319.
36 Defamation Act 2005 (Qld) s8; Defamation Act 2005 (NSW) s8;
Defamation Act 2005 (Vic) s8; Defamation Act 2005 (Tas) s8;
Defamation Act 2005 (WA) s8; Defamation Act 2005 (SA) s8;
Defamation Act 2006 (NT) s7; Civil Law (Wrongs) Act 2002 (ACT)
s120; Defamation Act (NZ) s7 is a similar provision.
37 See para 131ff. See also Chapter 11.
38 [2002] 210 CLR 575. For further details see Chapter 11.
39 Oceanic Sun Line Special Shipping Co. v Fay (1988) 62 ALJR 389; Voth
v Manildra Flour Mills Pty Ltd (1990) 65 ALJR 83; Henry v Henry
(1996) 185 CLR 571. The High Court reaffirmed its position in Regie
National des Usines Renault SA v Zhang (2002) 76 ALJR 551: ‘[a]n
Australian court cannot be a clearly inappropriate forum merely by virtue
of the circumstance that the choice of law rules which apply in the forum
require its courts to apply foreign law as the lex causae’. See David
Rolph, ‘Before the High Court – The massage, not the medium:
Defamation, publication and the internet in Dow Jones & Co. Inc. v
Gutnick’, (2002) 24 Sydney Law Review 263.
40 [1987] AC 460, 478, Lord Goff of Chieveley.
41 Dow Jones and Co. Inc. v Gutnick [2002] 210 CLR 575 at 590. See also
Macquarie Bank v Berg [1999] NSWSC 526.
297