Both the New Zealand and Australian courts have recently issued ground-breaking decisions in the area of internet defamation. In both cases the courts have had to balance the right to protect one’s reputation against the principle of freedom of expression. As a result, interesting issues relating to the role of country-specific laws in the internet world have emerged.
It has been argued that the internet leaves no room for country-specific laws, and that there should simply be a worldwide “Law of the internet”. In this scenario the legal principles and theories of the US tend to dominate.
Some people have even gone further in suggesting that the internet should not in fact be subject to any externally imposed laws, only self-regulation.
On its face, the New Zealand case of O’Brien v Brown, issued on August 31, is simply the first case to find what would appear to be fairly obvious to most -- that publication over the internet constitutes publication for defamation purposes. However, one of the more interesting aspects of the case was the discussion relating to Brown’s defence of qualified privilege.
Brown argued, in effect, that the posting of ideas, comments and criticism on electronic bulletin boards was part of the culture of the internet and that a special quality of freedom of communications attached to Brown’s postings, protecting them from action in defamation.
This argument reflects a fundamental difference between the US and related legal systems, where freedom of expression is paramount, and the New Zealand, Australian and other Commonwealth legal systems, where the protection of reputation is generally of more importance.
If one follows the types of argument set out above, Brown’s “qualified privilege” defence would have succeeded. However, the judge clearly rejected the argument that a greater level of freedom of expression applied in the internet than that for other methods of publication. Accordingly, Brown’s postings were found to be defamatory.
In the Australian case of Gutnick v Dow Jones & Company, the role of the law of defamation in the internet was taken one step further.
The case arose out of an article published in Dow Jones' magazine, Barrons, last October and then placed on its website. Gutnick claimed the article was defamatory in that it alleged he was the biggest customer of Nachum Goldberg, convicted in the County Court of tax fraud and money laundering.
Dow Jones argued that the case should be heard in the US, as liability for defamation should be limited to where the relevant web server is based.
The judge, however, ruled that defamation takes place on the internet when a person "downloads" the offending words on their computer, not when they are "uploaded" on the other side of the world. The case could therefore be heard in Victoria, Australia.
What both cases make clear is that the law of defamation is alive and well. Abiding by rules of etiquette (or otherwise) that may be fine for other jurisdictions or publishing on websites based overseas is unlikely to be an answer if you defame someone in New Zealand or Australia. As with all other media, one needs to be careful what is said when other people’s reputations are involved.
Parkinson is a partner in Clendon Feeney’s technology law team. This article, together with further background comments and links to other web sites can be downloaded from www.clendons.co.nz. Questions and comments are welcome to Averill Parkinson.