Aussie court ruling may set precedent beyond defamation

The recent Australian court ruling that overseas web publishers can be sued for defamation in Australia could have implications beyond defamation law, says laywer, Rick Shera.

The recent Australian court ruling that overseas web publishers can be sued for defamation in Australia could have implications beyond defamation law, says lawyer, Rick Shera.

Shera, partner at Lowndes Jordan and InternetNZ vice president, says he expects New Zealand lawyers would use the case in any attempt to fix jurisdiction in a particular country.

"There's no reason why it would be confined to defamation ... There does seem to be some very useful comment for anyone seeking to bring home a jurisdiction issue to the country in which the action is taking place."

Other laws of a similar nature to defamation could be treated in a similar manner.

"For example, breach of copyright or those sorts of things where jurisdiction is often a problem. I think you'd be looking to use this case as justification for saying 'No, we can sue in New Zealand'...

"Perhaps Fair Trading Act, misleading conduct, those sorts of things. All those that involve jurisdiction issues over where you've done a certain act."

An Auckland barrister who specialises in IT case law, Clive Elliott, says areas of difference in law, like New Zealand's Privacy Act, may also make use of the ruling, although he stresses there are other factors to consider as well.

"It's not quite as simple as saying the court has jurisdiction you then have to show that it's the appropriate forum. You then get into arguments about what's called 'forum non-convenience arguments'. They would argue the appropriate forum would be, say, the US, if that's where the information resides or where the act occurred."

Elliott says the Australian case makes the point that since any damage to reputation occurred in Australia any witnesses would also be in Australia and it would be appropriate to hear the case there.

However, if those points could be pressed, Elliott says it's entirely possible to apply the ruling to cases other than cases of defamation.

"The basic principle applies if the harm reaches New Zealand and you could prove it. You could then bring proceedings in New Zealand."

Elliott says the ruling may seem extraordinary at first glance but makes sense in a legal sense.

"It establishes an important principle that the internet is not markedly different from other forms of traditional media. It's a refusal to make new rules for the internet."

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