Friday, 4 July 2008

Defamation and the Internet

Australian defamation laws are complicated by a state based nature in that they differ across each jurisdiction in content and available defences. Various Australian state laws include offence provisions for both civil defamation and criminal defamation. Civil liability transpires as a consequence of publications that are expected to harm a person's reputation and the penalties are monetary. Criminal liability transpires as a consequence of publications that concern society, including those with a propensity to imperil the public peace, and penalties in the majority of jurisdictions incorporate incarceration. Significant distinctions exist between civil and criminal defamation law in relation to both liability and defences.

The Western Australian Supreme Court decided in Rindos v. Hardwick[1] that statements distributed in a discussion list can be defamatory and lead to an action. The court thought that it was inappropriate to apply the rules differently to the Internet from other means of communications. The court acknowledged the instigator’s accountability for defamatory proclamations broadcast across a discussion group[2]. The matter of the liability of other participants on the list was not considered during the trial.
It is considered unlikely that an ISP would scrutinize all material presented across its network[3] and this may not be economically feasible[4]. Mann & Belzley address this though “targeting specific types of misconduct with tailored legal regimes”[5]. These regimes would leave the ISP responsible for the defamatory publications of its users where they have failed to take reasonable action to mitigate these infringements. The existing law in Australia leaves all parties considered to be a “publisher” liable[6]. Cases do exist[7] where ISPs have removed content proactively.

The common law defense of innocent dissemination exists in Australia. Thompson v Australian Capital Television[8] demonstrated this when Channel 7 asserted that transmission of a “live” show to the ACT retransmitted from Channel 9 NSW in effect placed it as a subordinate publisher that disseminated the material of the real publisher devoid of any material awareness or influence over the content of the show. They argued that this was analogous to a printer or newspaper vendor.

The High Court held that the defense of innocent dissemination is available to television broadcasts as well as printed works. In this instance it was held that the facts demonstrated Channel 7 maintained the capacity to direct and oversee the material it simulcasts. The show was broadcast as a live program through Channel 7's choice. They chose this format in full knowledge that a diffusion of the show would be next to instantaneous. The where further conscious of the nature of the show, a “live-to-air current affairs programme”[9] and understood that this program conceded an elevated risk of transmitting defamatory material. It was decided by the facts that Channel 7 was not a subordinate publisher on this occasion.

The Federal Broadcasting Services Act 1992[10] affords a legislative defence to an ISP or Internet Content Host (ICH) that transmits or hosts Internet based content in Australia if they can demonstrate that they were reasonably unaware of the defamatory publication. s.91(1) of Schedule 5 to the Broadcasting Services Act[11] grants that a law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which the ISP “was not aware of the nature of the internet content”.

The BSA[12] defines "internet content" to exclude "ordinary electronic mail". This is a communication conveyed using a broadcasting service where the communication is not "kept on a data storage device". Consequently, the s.91 defence will not be offered in cases concerning such material. In such cases, an ISP or ICH may be still attempt to rely on the defence of innocent dissemination. The applicability of the common law defence of innocent dissemination remains to be determined by the Australian courts.[13] As a consequence, any reliance on these provisions by an ISP or ICHs carries a measure of risk.

[1] Rindos v. Hardwicke No. 940164, March 25, 1994 (Supreme Ct. of West Australia) (Unreported); See also Gareth Sansom, Illegal and Offensive Content on the Information Highway (Ottawa: Industry Canada, 1995) .
[2] Ibid, it was the decision of the court that no difference in the context of the Internet News groups and bulletin boards should be held to exist when compared to conventional media. Thus, any action against a publisher is valid in the context of the Internet to the same extent as it would be should the defamatory remark been published in say a newspaper.
[3] RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC., (RIAA) v. Verizon Internet Services, 351 F.3d 1229 (DC Cir. 2003); See also Godfrey v Demon Internet
[4] ; Further, in the US, the Digital Millennium Copyright Act’s (DMCA’s) “good faith” requirement may not require “due diligence” or affirmative considerations of whether the activity is protected under the fair-use doctrine. In contrast, FRCP 11 requires “best of the signer’s knowledge, information and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law…”. Additionally, with the DMCA, penalties attach only if the copyright owner “knowingly, materially” misrepresents an infringement, so the copyright owner is motivated to not carefully investigate a claim before seeking to enforce a DMCA right.
[5] Note - supra
[6] Thompson v Australian Capital Television, (1996) 71 ALJR 131
[7] See also “Google pulls anti-scientology links”, March 21, 2002, Matt Loney & Evan Hansen ,, Cnet,; “Google Yanks Anti-Church Site”, March 21, 2002, Declan McCullagh, Wired News,,1283,51233,00.html; “Church v. Google How the Church of Scientology is forcing Google to censor its critics”, John Hiler, Microcontent News, March 21, 2002,; Lawyers Keep Barney Pure, July 4, 2001, Declan McCullagh, Wired News,,1412,44998,00.html.
[8] Supra Note.
[9] Supra Note.
[11] s.91(1) of Schedule 5 to the Broadcasting Services Act states:
(i) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host/internet service provider to liability (whether criminal or civil) in respect of hosting/carrying particular internet content in a case where the host/provider was not aware of the nature of the internet content; or
(ii) requires, or would have the effect (whether direct or indirect) of requiring, an internet content host/internet service provider to monitor, make inquiries about, or keep records of, internet content hosted/carried by the host/provider.
[12] The Broadcasting Services Act specifically excludes e-mail, certain video and radio streaming, voice telephony and discourages ISP's and ICH's from monitoring content by the nature of the defense. See also, Eisenberg J, 'Safely out of site: the impact of the new online content legislation on defamation law' (2000) 23 UNSW Law Journal; Collins M, 'Liability of internet intermediaries in Australian defamation law' (2000) Media & Arts Law Review 209.
[13] See also EFA, Defamation Laws & the Internet

No comments: