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CyberDefamation. The Impact of the Uniform Defamation Laws. Agenda. Uniform defamation laws - key cyberdefamation issues: jurisdiction online intermediaries Intermediaries - previous Australian position Statutory innocent dissemination defence Position in other major jurisdictions.
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CyberDefamation The Impact of the Uniform Defamation Laws
Agenda • Uniform defamation laws - key cyberdefamation issues: • jurisdiction • online intermediaries • Intermediaries - previous Australian position • Statutory innocent dissemination defence • Position in other major jurisdictions
Uniform defamation laws • Previously fragmented by state/territory • Proposals to standardise • Federal proposals (March 2004) • State/territory model – SCAG • Defamation Act 2005 (NSW) (commenced 1 January 2006) • Now implemented in all states and territories
Uniform defamation laws (cont) • Jurisdiction and choice of law in Australian defamation law • Dow Jones v Gutnick (2002 HCt) • Previous forum-shopping • Uniform Defamation Act position: • Multiple publications – closest connection test (s 11) • Statutory lis alibi pendens rule (s 23)
Online intermediaries • Range of levels of “involvement” with publication • Mere “common carrier” • Host • Online publisher of anonymous content • Chat room operator • Review publisher • Blog publisher • Online newspaper/portal publishing third party content
Online intermediaries (cont) • “Publication” in defamation law • Breadth of concept • Application in online context: • Common carrier: Bunt v Tilley (2006 UK HCt) • Frawley v State of NSW (2006 NSW S Ct)
Online intermediaries (cont) • Previous law – common law innocent dissemination defence • Three-part test: • Innocent of knowledge of defamatory nature of material • Nothing in material or circumstances which should have led defendant to suspect it contained a defamation • No negligence in dissemination • Thompson v ACTV (1996 – HCt)
Online intermediaries (cont) • Previous law: • Broadcasting Services Act 1992 (Cth) Schedule 5 clause 91 • Law of state or territory has no effect if • subjects ISP or ICH to liability where not aware of the nature of the Internet content; or • requires ISP or ICH to monitor/make inquiries about or keep records of the Internet content • Effect on defamation liability? • Federal report (2004) accepts relevance • Defamation Act 2005 s 6(2): act does not affect the general law unless provides otherwise
Statutory innocent dissemination • Defamation Act 2005 – s 32 • Three-part test: • Defendant published matter merely in capacity of a “subordinate distributor” • Defendant neither knew, nor ought reasonably to have known, that the matter was defamatory • Defendant’s lack of knowledge was not due to negligence
Statutory innocent dissemination (cont) • “Subordinate distributor” • Three-part test: • Not the “first or primary distributor” • Not the author or originator • Did not have the capacity to exercise editorial control over the matter before it was first published
Statutory innocent dissemination (cont) • “First or primary distributor”: • Will not be considered to be first or primary distributor merely because involved in capacity of: • Newsagent, librarian etc • Broadcaster of live programme where no effective control • Provider of services by means of which matter is made available in electronic form • Operator of communications system whereby matter is “made available by another person over whom…the provider has no effective control”
Position in other jurisdictions • US • Early cases (Cubby, Stratton Oakmont) • Communications Decency Act 1996 (US) s 230
Position in other jurisdictions (cont) • UK • Defamation Act 1996 (UK) s 1 • Godfrey v Demon Internet (2001)
