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Arnold-Moore, Timothy --- "Legal Pitfalls in Cyberspace: Defamation on Computer Networks" [1994] JlLawInfoSci 12; (1994) 5(2) Journal of Law, Information and Science 165

Legal Pitfalls in Cyberspace:
Defamation on Computer Networks[#]

TIMOTHY ARNOLD-MOORE[*]

Abstract

In this article the author discusses the problem of defamation on computer networks. The policy issues are analysed and the weaknesses of the current law outlined. In particular the problem of the information travelling across political and/or geographical borders is highlighted. Possible amendments to the law are suggested.

1. Cyberspace

The term 'Cyberspace' was first coined by science fiction writer, William Gibson,[1] and applies to electronic space - the community or virtual new world created through communication across vast interconnected computer networks.[2] The emergence and widespread adoption of computer network[3] technology has produced a new medium through which to pass information between people. The legal implications of such activities are often ignored by the users and operators of such networks but the potential pitfalls are numerous. Until recently, use of such networks and knowledge about the ways in which they are being used has been restricted to a small community which generally excluded those versed in the law:

Cyberspace remains a frontier region, across which roam the few aboriginal technologists and cyberpunks who can tolerate the austerity of its savage computer interfaces, incompatible communications protocols, proprietary barricades, cultural and legal ambiguities, and general lack of useful maps or metaphors.[4]

However, this is increasingly not so. User-friendly interfaces which hide technical details are being created. Networks are being connected together in ways which hide the differences between them. Lawyers have finally ventured the first tentative steps into cyberspace.

2. The nature of computer communication

When cyberspace is discussed, commentators have often focussed on computer bulletin board services, assuming a single kind of communication and hence, a single regulatory scheme is sufficient[5] but:

it is a mistake to turn the legal rules on whether or not an entity is called a computer bulletin board. Instead, we should recognize that computer bulletin boards transmit different kinds of information in different ways, and apply different regulatory norms to the very different ways of communicating information through them. We should not be misled by a label into thinking that all communication through computer bulletin boards is the same.[6]

The major categories of service provided by computer networks connections are a selection from the following four:

1. news[7] or public message areas[8] allowing the user to read and create messages sent to public 'news groups' like an electronic discussion group or bulletin board;[9]

2. electronic mail (e-mail)[10] which allows messages to be passed between individuals, usually without other human intervention;[11]

3. conferencing[12] where what users type is immediately displayed to other users of the facility; and

4. file areas[13] or ftp which allow the user to move files (chunks of information) from one computer to another - 'anonymous ftp' allows the user to transfer information from a public archive to another computer without being able to login[14] and without the need to involve the operator of the service once the system is established to the archive.[15]

Each of these services may be used to transfer simple text, formatted text (e.g. from a word processor), computer programs (commercial or otherwise), graphic images (e.g. digitized photographs), movies (fairly primitively at present) and sound.[16] Some computer information services contain only information placed there by the operators[17] but the vast majority allow users to place information on the service, often without any editing or vetting by the operator.[18] Where there is a limit on the size of information that can be transferred (as with some e-mail systems) the file can simply be divided into pieces to be transferred and then 'glued' back together at the destination.

3. An emerging single Cyberspace

Previous commentators have focussed on dial in services, where the user has a phone number for each service or bulletin board that she or he wishes to access, and using a personal computer, a telephone and a modem,[19] each service is accessed whether it be private or commercial. The necessity for individual connections is rapidly diminishing as many of these services and the computer networks which underly them are interconnected to create a single permanent national and global network. This network is loosely referred to as the Internet, or simply the Net[20] or Cyberspace.[21] Whatever label is applied to describe the Internet, its characteristics raise all of the major issues relating to broader cyberspace. It is not an apocalyptic vision for the future, but a current reality. While it began as a research initiative in the United States, it now connects more than 40 countries[22] with research organisations,[23] primary and secondary educational institutions,[24] and increasingly purely commercial interests[25] having an estimated 992,000 connections in September 1992 growing at an estimated 1,000 a day.[26] By far the majority of 'traffic' is generated and circulated in the United States so current practice is often shaped by U.S. policies and law. Since Australia's major connection with the world is via the U.S. this is particularly so with respect to Australia, at least in international communication.

At its simplest level, what the Internet provides is a way of transferring packets of information from one place to another. It functions much like the postal service. Each portion of information is placed inside an 'envelope' containing the address of the source and the destination. The 'envelope' is transported to its destination by communicating it to another computer on the network which is 'nearer'[27] to the destination than the source. The second computer then stores the 'envelope' temporarily before communicating it to a third computer until it finally reaches the destination just as a post office would sort your letters and transport them to the central post office which is closest to your home which would then transport it to your local post office and so on.[28] By connecting to the existing network, a computer or sub-network[29] receives and provides this forwarding service for other computers which are connected. Just as in the postal system, each house has a unique address, each computer (and often each user on each computer) has a unique Internet address so that deliveries reach the intended destination. Unlike the postal system, each computer on the network plays a part in distributing 'envelopes'.

On top of this very basic layer are built the tools referred to above, news, e-mail, conferencing and file transfer, together with a facility to allow users to login to any machine connected to the Internet on which they have an account[30] allowing remote access to more complex databases. All of these services were originally conceived as providing transfer of text and data, but they are increasingly being used to transport still and moving images and sound.[31] In particular, the World Wide Web project[32] has implemented a global hypermedia[33] system which links many Internet services together in a way which is easy to use and hides all of the addresses and technical details away from the user.[34] Traditional media (print and electronic) are also experiencing a conversion to computer network-based services and it is likely that the Internet as an established, effective distribution system will play a large role in this process.[35] The need for cooperative development of a global communications infrastructure to support this has been acknowledged by the U.S. Vice-President.[36]

These new technologies raise new challenges to the existing legal regime but they 'are a genuine tool of communication, and users should not treat it [the Internet] any differently to how they would communicate in other forms.'[37] In particular, the disrespect for national and state boundaries shown by cyberspace poses many conflict of laws problems to resolve.[38]

4. Lawyers in Cyberspace

In March of this year, the first case for defamation on the Internet was heard in Australia.[39] David Rindos, an academic in Western Australia and regular reader of and contributor to the Internet anthropology news group, sci.anthropology, sued Gilbert Hardwick for defamation resulting from two posts made to that news group. The suit was undefended by Hardwick claiming he was 'lacking any resources whatsoever to defend [himself]'. Despite this the matter came before Ipp J. in the Supreme Court of Western Australia for assessment of damages. Because of default judgment, few precedents were cited[40] and it is difficult to extract clear direction in areas where the law is unclear concerning publications on the Internet. What is most certain is that the Internet can no longer ignore the law.

Suits for defamation on large networks have also been tried in the U.S.[41] In March of 1992, Playboy Enterprises filed suit for infringement of intellectual property rights against Event Horizons in Oregon claiming that they had electronically distributed images from magazines published by Playboy.[42] Much attention has been focussed on the infringement and enforcement of intellectual property rights in cyberspace but defamation and related actions have received little interest. Users and operators of computer networks can no longer simply assume that their activities will go unnoticed. They, like any other publishers with a potentially large audience, must take care not to infringe the legal rights of others as a 'computer bulletin board (like most means of communication) can be used to commit or facilitate almost any imaginable kind of legal wrong.'[43] While the Rindos case was between two private individuals, there have been difficulties in enforcing the judgment.[44] For this reason, large corporations and institutions are more likely to be targets of litigation. It is the operators of these services (and possibly employers of the users) who are likely to be sued. This article examines the law of defamation as it relates to the Internet but pays particular attention to the liability owners, operators and employers have for the defamation of the users of the services.

5. Australian defamation law

The tort of defamation prevents publication of material which 'tends to injure the personal, professional, trade or business reputation of an individual or a company, to expose them to ridicule or to cause people to avoid them'.[45]

No two states in Australia share the same laws of defamation but the states can be grouped. Queensland[46] and Tasmania[47] have a complete codification. Western Australia has a code with limited application to civil actions.[48] Victoria,[49] South Australia,[50] the A.C.T.,[51] and the Northern Territory[52] all apply the common law with similar small statutory modifications. The common law is to be applied with more significant statutory modifications in New South Wales.[53]

The Australian Law Reform Commission commented that it was difficult for journalists to know and apply any of the existing defamation laws with respect to existing forms of communication and that it is unfair to expect journalists to apply the various laws of the several jurisdictions.[54] They recommended a uniform code to apply throughout Australia but political forces have ensured that this is unlikely. The variety of laws within a single country is also a problem in the United States.[55] Existing mass media has already raised many of these issues at least within national borders, but the newspapers and broadcasters are presently large corporations with substantial legal services at their disposal. Cyberspace allows individuals wide publication to a national and even international audience (e.g. through bulletin board news services). The vast majority of these people have neither access to lawyers skilled in navigating the intricacies of such laws nor resources to compensate a person who is harmed by their statements.

There has been much discussion about the purpose of defamation law and its underlying aims and objectives. The matter has been put to rest by the High Court describing three purposes of granting damages in a claim of defamation:

The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation, and vindication of the appellant's reputation.[56]

The essence of a defamation action is damage to reputation, not that the publication was untrue,[57] or that it infringed on the privacy of the plaintiff.[58]

6. Libel or Slander

Defamation has been traditionally divided into two separate categories - libel and slander. The major practical difference between them is that in an action for libel, the plaintiff does not need to show financial loss to recover[59] but in an action for slander (with the exception of statements concerning some criminal offences,[60] contagious disease,[61] unchastity or adultery of a woman,[62] and unfitness for a profession)[63] the plaintiff must suffer actual pecuniary damage. The distinction has been abolished in Queensland,[64] Tasmania,[65] and the A.C.T.[66] While New South Wales preserves the distinction, slander is actionable without any special damages.[67] Victoria, South Australia, Western Australia and the Northern Territory retain the common law position.

There are two different tests which the courts have applied in order to distinguish libel from slander. They are:

1. the form of publication - defamatory material published in a permanent form is libel, if non-permanent then it is slander,[68] and

2. the mode of publication - defamatory material published to the eye is libel, but to the ear is slander.[69]

The latter test has been used to establish that a radio broadcast even when read from a script[70] and words spoken as part of a television broadcast[71] are slander.

The difficulties with respect to radio (and subsequently television) broadcasts that were posed to potential plaintiffs were overcome by legislation:

For the purposes of the law of defamation, the broadcasting of matter is taken to be publication of the matter in a permanent form.[72]

This provision assumes the form test is applicable rather than the mode test, an assumption which initially caused some problems[73] but it is clear now that defamation on radio and television broadcasts is actionable as libel with no need to prove financial loss.[74] Under the new Act, 'broadcasting' is not defined but 'broadcasting service' excludes nearly all services currently provided by the Internet.[75] In particular paragraph (b) of the definition excludes 'a service that makes programs available on demand on a point-to-point basis, including a dial-up service' which would seem to exclude even a hybrid computer-television or computer-radio service which allowed the viewer or listener to select the program he or she required. One exception might be the multicast system 'MBone' which uses the Internet to broadcast video images but this service is still in its infancy and requires very high speed connections.[76] In the absence of further legislation, the common law tests must be applied.

While Ipp J. in Rindos does not specifically address the question of whether the defamatory publication was libel or slander, he did allow damages for pain and suffering and as Western Australia preserves the common law position, he clearly considered the news postings to be libel not slander. His honour also draws attention to the fact that 'messages that appear on the bulletin board can remain on the computer of a subscriber or participant for a number of days or weeks' and that '[i]tems of interest on the bulletin board can be printed' to paper. This suggests that he had in mind a permanent form test rather than the mode of publication test.

Let us consider then the 'permanent form' test. While it is not clear from the judgments, commentators have emphasized that the requirement of permanence refers to the method of communication, not the form of the statement[77] and affirming the policy basis that the written word is more persistent and more likely to be given weight than the spoken word. This would suggest that permanence is tested at the time of publication, asking "Was there a record made which was capable of being kept permanently?" but there is little precedent on which to base such an assertion.[78] This makes application of the principles to cyberspace quite uncertain. The qualified conclusions are:

file transfer is certainly libel as a permanent form is retained at the source site;

news which gets archived (stored permanently by one or more operators)is certainly libel, and it appears from the Rindos judgment that it is sufficiently permanent even where it is not archived, although because of the wide distribution (emphasized in Rindos but perhaps for other reasons) policy would suggest a higher standard of care than is due to less widely publicized material;

• with e-mail, the only copies of any permanency are those sent to the addressees which satisfies a test at the time of publication but a permanent form will not always be retained and is less likely to be retained than is news;

conferencing is even less likely to be retained in a permanent form (especially if video or sound are involved) so this is unlikely to constitute libel. It is generally used for more transient communication -like an electronic chat.

In all these cases the particular facts of the situation may override these generalizations.

Under the mode of publication test, there is more certainty. News, mail, file transfers, and conferencing sessions can contain any mixture of text, pictures (still or moving) and sound (with or without associated pictures). Of these only sound will constitute slander and require the extra burden of showing financial loss.

The policy behind the distinction between libel and slander is uncertain.[79] The test seems to be based on the potential for considered opinion of the defamer of their words, balanced against the potential for broad circulation of the publication. It would therefore seem unreasonable to have a different standard for casual conversation to a limited audience purely by virtue of it taking place using a computer network. So defamatory statements on electronic conferencing services should be considered slander as are conversations on conferencing lines on the public telephone system. Similar considerations apply to e-mail as to conventional letters, except that broader circulation is easier with e-mail, so defamatory e-mail should be considered libel as is its paper equivalent. Electronic news, which generally has a wider circulation than e-mail or conferencing, should be treated like a broadcast and considered libel, even though messages are not always as carefully considered as their potential for wide circulation would suggest.

Although the Rindos decision suggests a permanent form test which takes these issues into account, clarifying legislation would certainly assist in certainty in the law and the Federal Government could exercise its 'Postal, telegraphic, telephonic, and other like services' power from s.51(v) of the Constitution to ensure the law is uniform across Australia as with s.206 of the Broadcasting Services Act 1992 (Cth) with respect to radio and television broadcasts.

7. Publication

For the purposes of defamation in Australia, publication is communicating material to someone other than the plaintiff[80] (in criminal defamation the communication can be to the plaintiff).[81] Publication is not limited to mass dissemination typical of newspapers, magazines, television and radio. It takes place where a defamatory letter is dictated to a stenographer[82] or a telegram is received by a telegraph clerk.[83]

The major function of this requirement in the cause of action is to establish who is liable. Any person who takes part in or authorizes the publication of defamatory material is said to have published it and is liable.[84] Co-publishers are jointly and severably liable[85] which means that each publisher is separately liable to pay damages to a defamed person although one publisher can force other co-publishers to join them in defending an action. Any doubt that a news item on an electronic bulletin board constitutes a publication has been removed by the Rindos decision. Providing someone other than the plaintiff is involved, e-mail messages, electronic conferences and files placed in a public file transfer area can also constitute publication.

On a large network like the Internet, messages of all types are 'propagated' from computer to computer. Each computer receives messages from other computers, and where it can, passes them on to other computers. The question arises as to whether a user who posts an item on one computer is liable for publication which occurs on other computers. The first publisher is liable for damage caused by repetition if he or she authorizes the repetition, or intended the material to be repeated, or if repetition was a natural consequence of the initial publication, or the person who repeated the material was under a moral obligation to do so, or the first publisher knew the material would be repeated.[86] For the poster of a news item, there is a clear authorization or intention that the material will be distributed so there is no doubt that the original poster of news has published wherever the news is likely to be read for the purposes of defamation law. Again this was assumed in Rindos and similar arguments apply to e-mail and conferencing.

Under the principles applied by the High Court in Webb v. Bloch[87] it is clear too that a principal will be considered to have published material that has been published by their agent.[88] This would suggest that employers, who are usually the operators of computers (and hence computer networks of which they are a part), are liable for the defamatory statements made by their employees in the course of their employment regardless of their liability by virtue of their control over the network. Whether the post needs to be in an area connected with the employee's work, or whether sufficient connection with the employer is afforded by the employer providing access to any news service from work is unclear. Either way, employer's providing access to cyberspace to their employees should expressly forbid employees from making defamatory posts (which may be sufficient to demonstrate an employee was acting beyond their authority thus releasing the employer from liability) and consideration should be made to obtaining some form of indemnity from employees for any defamatory statements made by them.

7.1 Location of publication

Publication takes place in each place where material is read, seen or heard[89] arising in a separate cause of action each time[90] although in practice a single cause is usually pleaded.[91] There is a separate publication to each person who reads a newspaper[92] and to each place where a radio or television broadcast is received[93] but a defamed person can get damages for publication of material in another jurisdiction without pleading the separate causes.[94] This is contrasted to the U.S. which has a single cause of action for any one broadcast or edition of a newspaper.[95] There seems no reason for treating cyberspace publication any differently from other forms of publication which implies that there will be publication to every reader of an electronic news item or piece of e-mail. This raises a number of cross jurisdictional issues, as a single news item or e-mail message is quite likely to be published in more than one state and indeed multiple countries. This has lead one commentator to remark:

Once a user sends a defamatory message over a computer bulletin board ... it resides in an electronic space rather than any geographical space ... A libellous message over a computer bulletin board may damage a person's reputation as a computer user. Hence, the damage itself will matter only to users of a particular electronic network.[96]

However our courts and their jurisdictions are geographically bound and are unlikely to relinquish their powers to a court of cyberspace so these issues must be resolved. Where multiple jurisdictions are involved, a plaintiff can either bring an action in one jurisdiction and state separate causes with respect to the other jurisdictions, or bring an action in one jurisdiction and seek damages with respect to other jurisdictions. For the purposes of Australian law there is no difference.[97] Ipp J. in Rindos appears to take into consideration the wide international publication in assessing damages which falls into the latter category.

The position of a foreigner suing was considered in the English case of Kroch v. Rossell.[98] There a foreign national alleged a defamatory statement was published in two newspapers (one Belgian, the other French) of which a few copies were sold in London. Relief was refused on the basis that the plaintiff needs a reputation in the jurisdiction in order to found an action.[99] This seems to be a novel test for defamation and may be distinguished as an application of the principle of forum non conveniens.[100] The latter test was applied in the Canadian case of Jenner v. Sun Oil[101] where a US radio broadcast was heard in Ontario. Relief was granted as there was a real and substantial connection with the forum.[102] The position in Australia is some what different. The High Court has twice rejected Spiliada[103] and while preserving the terminology of forum non conveniens, will only strike off a case if it is 'clearly inappropriate' for the forum rather than if there is a 'more appropriate' forum.[104] It will be considered 'clearly inappropriate' if the forum cannot grant the required relief.[105] Service out on defendants who are not resident in the country of the jurisdiction still creates real problems.[106]

7.2 Which law to apply

Having established that a forum can hear a case involving multiple jurisdictions, there is still the question of what law should be applied. The original test was that described in Phillips v. Eyre[107] known also as the double actionability test. The test is a two step process. First the law of the forum (lex fori) is applied to see if the defendant is liable. If the answer is affirmative, the law of the place of the tort (lex loci delecti) is applied. This encourages forum shopping as the plaintiff will choose the jurisdiction with fewest defences or the narrowest interpretation of them.[108]

The solutions to forum shopping are numerous. In a complicated judgment of the High Court considering a personal injury claim, a major emphasis was placed on the law of the place of the tort for actions between Australian states.[109] This agrees with the first U.S. Restatement of the Conflict of Laws.[110] For actions involving international concerns Phillips v. Eyre was resoundingly affirmed,[111] but this High Court decision was taken to displace the double actionability test by the New South Wales Court of Appeal in ABC v. Waterhouse[112] preferring the law with the closest connection to the plaintiff, the test adopted in the Restatement (Second) of Conflict of Laws.[113]

Before Hunt J had an opportunity to re-hear this defamation case, the High Court again considered the issue affirming the double actionability test as a threshold for action, but with some scope for relaxing the lex loci dilecti part of the test.[114] In his rehearing of the Waterhouse case[115] Hunt J. considered McKain together with the implications of the cross-vesting scheme.[116] The test he applied was, where there is no transfer under the cross-vesting legislation, apply the Phillips v. Eyre test (this will always be the case with foreign jurisdictions) . Where an action is commenced in one jurisdiction, and is subsequently transferred to another by virtue of the cross-vesting scheme, the court must apply the laws of its own jurisdiction[117] unless the action arises under a written law of another State or Territory.[118] This means generally that a civil defamation action transferred from either New South Wales, Queensland or Tasmania must apply the law of those jurisdictions, but from any other jurisdiction, the law of the forum will be applied.

To complicate matters further, Miles CJ handed down a judgment just three weeks after that of Hunt J in Woodger v. Federal Capital Press[119] without considering the judgment of Hunt J. He claimed that Breavington and McKain both reaffirm the Phillips v. Eyre test but there was some flexibility allowed in waiving the lex loci delicti.[120] This was described as the jurisdiction with the closest connection with the parties and the cause of action.[121] He argued that, because of multiple simultaneous torts there is strong ground for applying only lex fori which was not present in the facts of Breavington.[122] Cross-vesting transfer provisions can be used to prevent forum shopping.[123]

Woodger and Waterhouse are clearly inconsistent. While the Waterhouse judgment appears more carefully argued, as it sits more easily with the High Court authority and takes more detailed account of the cross-vesting legislation, Ipp J. in Rindos appears to have taken the much simpler and more sensible approach of Woodger in simply applying the lex fori. However neither judgment really satisfies the purposes of the cross-vesting scheme which aims to allow related actions, which might normally be commenced in separate jurisdictions, to be heard in a single court applying which ever law would have been applied if the actions were separate.[124] Although s.11 only applies where there is a transfer, the general cross-vesting of jurisdiction powers are not limited to such actions. This legislation on its face thus authorizes the courts to apply lex loci dilecti unless there is a transfer. This anomaly requires the attention of the legislatures.

What is clear from these decisions is that it is possible to bring an action in an Australian court and in many situations recover damages for publications which occur in other states and in other countries. Where both the law of the forum and the law of the place of publication impose liability, damages will be recoverable. There is less certainty where there is a conflict. For international cases, it appears that only the law of the forum will be relevant but in some circumstances recovery will not be allowed if the law of the place of the tort does not also allow recovery. For interstate cases, cross-vesting legislation should be used to ensure the litigation takes place in the most appropriate forum. There may still be recovery where there is conflict depending on the test applied.

7.3 Republication

The question arises as to the liability of a second publisher, one who takes a statement of another and further distributes it. This is of most relevance to operators of computer network services. Most statements made on the Internet are relayed through a number of sites, usually with different operators which have no other connection with the original publisher. The circumstances in which these operators will be held liable will largely determine the way in which defamatory publication is prevented in cyberspace.

A republisher of defamatory material will be held liable if their role amounted to approval or adoption of the statement inferred from actual words.[125] Any defendant can join the secondary publisher as a co-defendant (as the first and second publishers are usually joint tort-feasors).[126] The reverse is rare as media organizations have an unwritten code that they take responsibility for the material they publish. Such an attitude is not commonly held by the operators of computer networks, and as the law allows the reverse also, operators have the power to join the first publisher.

The context of the statement must be taken into account especially to see whether the statement was adopted, repudiated or discounted by the second publisher.[127] The major policy basis is that liability is imposed as republication exposes the statements to a new audience.[128] A media organization is liable for the statements of a member of the public on a talk-back radio show or television debate,[129] statements in letters to the editor or a simple quote without comment.[130] The printer of a newspaper has been held liable for defamatory statements in the paper.[131] In particular, a defendant who relayed an international telegraphic communication into the jurisdiction was held liable for the consequences in that jurisdiction.[132] There is a similarity with electronic mail here as the message has a particular destination and is passed from one stage to the next until it reaches its destination.

Perhaps the cases with the most similarity to electronic news are the physical bulletin board cases. Becker refers to a number of U.S. cases which arrive at the conclusion that the operator of the board is liable as a co-publisher only if, knowing of the defamatory material, he or she fails to remove it.[133] In the English case of Byrne v. Deane[134] the Court of Appeal unanimously held that the secretary of a golf club where the rules provided that 'no notice or placard shall be posted in the club premises without the consent of the secretary' was liable for defamatory statements posted on a wall in the club by allowing the statement to remain there.[135] In addition, Greene LJ found the director of the club also would have been liable had the material been defamatory applying the test:

having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been found?[136]

In a moderated news group[137] or where some control is exercised by the operator on the content of outgoing e-mail, the operator will be liable for its defamatory contents unless they remove the defamatory item. Where such control is not exercised the position is not as clear. On Internet news, the poster of an article and the operator of any computer in the network can 'kill' a particular article to prevent its further dissemination. This 'kill' message is sent throughout the network requesting that other computers delete the article and refrain from distributing it further. The convention on the Internet is to reserve such action by anyone other than the poster for situations where the network is overloaded or jeopardized because of the message. This makes operators reluctant to exercise this power. The question arises as to whether an operator, having read a defamatory article but failing to send a 'kill' message, is liable for the damage caused by further distribution. It is not certain how the decision of Greene LJ would be applied in this case but to impose a duty on operators to become moderators of every news group they read seems unnecessarily harsh and would open the door to self-appointed censors 'patrolling' the network looking for potentially infringing posts to cancel.

7.4 Innocent distribution or dissemination

Normally republication of a libel is itself a libel, but it is a defence if the defendant had no actual knowledge of defamation,[138] no reason to believe the material was defamatory, and negligence was not the cause of their lack of knowledge.[139] Where a publication has a reputation for containing defamatory material the distributor must check the publication to demonstrate no negligence.[140] Once a distributor is put on notice that a particular publication is defamatory, they also need to check the publication.[141] However, most distributors are ill-equipped to check the allegations so the effect is that they are likely to immediately remove the publication from their distribution.[142] The ALRC recommended that the privilege be overridden not by notice to the distributor but by seeking an injunction from the courts.[143] The defence is usually discussed with relation to news dealers, booksellers, libraries and similar distributors.[144] Printers have traditionally been excluded as they have opportunity to check the material, but with electronic printing methods this is not necessarily the case.[145]

In the U.S. there are three tiers of publishing service which are treated differently. A primary (or first) publisher is held liable in circumstances similar to those in Australia (subject to the First Amendment of the U.S. Constitution which protects public speech[146] on public issues).[147] A secondary publisher is not liable unless she or he changed the communication and knew or had reason to know of defamatory nature.[148] A third category is commonly termed 'common carrier' status.[149] It is usually applied to the public telephone network. The policy behind this is to enable continued rapid public communications, to allow public utilities to fulfil statutory duties, and recognizes that a utility does not control or endorse the messages carried on its service.[150] A 'common carrier' is defined in National Association of Regulatory Utility Commissioners v. FCC[151] as:

an individual or organization that holds itself out as available to the public for hire, that provides facilities thereby to all members of the public who choose to use its services to transmit information of their own design and that serves all members of the public indifferently, basing all decisions on non-discriminatory factors.[152]

Common carriers are probably not liable even if they know of the defamatory material being carried.[153] Commenting on this spectrum of liability, commentators suggest that computer networks require a standard of liability somewhere between that of telephone companies and that of newspapers and broadcasters.[154] Jensen argues that bulletin board services should not have the same privilege as common carriers but the facts in each case should be applied if the operator or operators knew of the illegality.[155]

In the U.S., the question has been resolved to a large extent. In Cubby, Inc. v. CompuServe,[156] a case considering the liability of a large commercial bulletin board service CompuServe, Leisure J affirmed that 'one who repeats or otherwise republishes defamatory matters is subject to liability as if he [sic] had originally published it'.[157] He also affirmed a defence similar to that of innocent distribution in Australia stating that 'vendors and distributors of defamatory publications are not liable if they neither know nor have reason to know of the defamation'[158] and commenting that knowledge was needed to satisfy the First Amendment.[159] He classified the service as follows:

CompuServe's CIS product is in essence an electronic, for-profit library ... CompuServe has no more editorial control over such a publication than does a public library, book store, or newsstand, and it would be no more feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.[160]

Common carrier status was not mentioned and it seems clear that CompuServe could be held liable in some situations suggesting that the secondary publisher standard is being applied. This produces a similar result as for telegraph companies[161] and as suggested by Jensen.[162]

With regard to the Australian law, Prof. Walker comments that:

Although the cases dealing with innocent distribution all concern newspapers and magazines, there is no reason in principle why the rules should not apply to those involved in the distribution of material for radio and television broadcasts.[163]

This statement was cited with approval in Thompson,[164] a case concerning an instantaneous relay of a television broadcast. Gallop J did place considerable emphasis on the 'transitory nature of a television broadcast and the absence of any "flashing red light" for a television station transmitting instantaneously through a network'[165] and the 'complete control of the conduct of the broadcast' which was in the hands of the primary publisher.[166] With reservations about the differences in control between an instantaneous relay television broadcaster and an Internet service provider, it follows that this defence should also extend to cyberspace as in the U.S. It is clear from CompuServe that there is no positive duty to examine all material to avoid defamation in the U.S. There is no reason for Australian courts to differ from this approach. However, there will be a positive duty to examine material for operators in Australia and England where defamatory material is brought to the attention of the operator or the operator ought to know of the likelihood of defamatory material following the majority of the House of Lords in Goldsmith v. Sperring and the ACT Supreme Court in Thompson.

The USENET news (the major bulletin board news service on the Internet) carries, among many other groups a group called 'alt.flame'. A flame is a news article or e-mail message of a derogatory nature aimed at chastising the poster of a previous news item for their perceived errors or transgressions of Internet conventions. The news group was established to keep these unhelpful discussions out of the major news groups.[167] These discussions are frequently of a blatantly defamatory nature. Operators of computers which receive the news can choose not to carry certain groups which means that their computer will not store messages contained in such groups and will not pass them on to other computers. Consequently, operators have the power to prevent further publication. Operators who choose to carry newsgroups such as 'alt.flame' seriously risk crossing the boundary of the test in Goldsmith v. Sperring.[168]

It remains to be seen whether the defence extends to a situation where the material is originally disseminated innocently, and subsequently potentially defamatory material is discovered. If the secondary publisher is in a position to prevent further publication is she or he obliged to do so? This of particular importance in electronic news where further publication can be restricted easily by those who control a particular computer in the network.

8. Defamatory material

While cyberspace raises few new issues with respect to what material is defamatory, for the benefit of those users of the Internet without a background in defamation law who might read this article, discussion is included.[169] The steps in discovering if a publication is defamatory are:

1. establish what imputations arise from the publication:

• resulting from the 'natural and ordinary meaning' of the words alone:

- directly; and

- inferentially (false or popular innuendo); together with those

• resulting from (true) innuendo which considers the statements in the light of facts known only to some people;[170] then

2. test each imputation to see if it satisfies the definition of defamatory;[171] then

3. test to see if the defamatory imputations are ‘of and concerning’ the plaintiff.[172]

Each of these steps is discussed below.

8.1 Establishing the imputations

The first imputations to be established are those resulting from the 'natural and ordinary meaning' of the material. The actual intent of the publisher is irrelevant to this enquiry,[173] but what the ordinary receiver of the publication would have understood from the material is relevant.[174] The test is objective using a hypothetical referee or 'ordinary reasonable listener' standard[175] taking into account the ordinary mode in which the material would be received.[176]

The Privy Council affirmed that inferences can be part of the natural and ordinary meaning of a statement[177] but no evidence is admissible on the meaning of words or the additional facts.[178] The broadcast or article must be taken as a whole[179] reflecting that defamatory sting may be qualified by other parts of the material.[180] This principle, known as 'bane and antidote' requires facts to be set out which destroy the imputation.[181] Where defamatory material is published in order to refute it, the 'antidote' must be clear.[182] Imputations must be those understood by 'an appreciable section of the community'.[183]

True innuendo arises in light of facts known only to some receivers of the material.[184] For instance, where conduct of a journalist is described but only journalists would realize that that conduct was in breach of the journalists' code of ethics.[185] The plaintiff has to show that somebody knew the relevant facts but not that they believed the imputation,[186] and that the material was actually published to a person with such knowledge.[187] The publisher's knowledge or lack of knowledge about these facts is irrelevant.[188] This particular heading is of import in cyberspace as the current cyberspace community has developed a number of conventions in communication which may impact how material is received. One could also assume that a significant proportion of the receivers of material in cyberspace have a high technical competency. An additional factor, recognized in Rindos, is the division of news into groups with particular interests and consequently particular skills and knowledge. These factors may be important in assessing the true innuendo arising from a publication.

8.2 Testing for `defamatory' imputations

In Victoria, New South Wales, South Australia, Western Australia, the A.C.T. and the Northern Territory the common law tests for what is defamatory still apply. At common law an imputation is defamatory if it is calculated[189] to engender one of:[190]

• 'hatred, contempt or ridicule' of the plaintiff;[191]

• 'lowering the estimation' of the plaintiff;[192]

• causing people to 'shun or avoid' the plaintiff.[193]

The first of these covers imputations that the plaintiff is criminal, dishonest, fraudulent, immoral, or untruthful. It has to be disparaging and only ridicule does not imply some blame on the part of the plaintiff.[194] The second test applies in the eyes of 'right thinking' individuals[195] implying that they should not be hypocritical or expecting scandal at every turn. The latter test is necessary to cover imputations of rape, sexual assault or insanity.[196] It should be stressed that it is the effect of the publication, not the intent of the publisher that is relevant to this enquiry.[197]

The code definitions (Queensland[198] and Tasmania)[199] are almost identical to each other and are similar to the common law test. They provide that:

An imputation concerning a person or member of his[sic] family, whether that member of his[sic] family is living or dead, by which

(a) the reputation of that person is likely to be injured;

(b) that person is likely to be injured in his profession or trade;

or

(c) other persons are likely to be induced to shun, avoid, ridicule, or despise that person,

is defamatory, and the matter of the imputation is defamatory matter.[200]

The words 'by which reputation is likely to be injured' have been held as equivalent to the hatred and contempt and lowering estimation parts of the common law test,[201] as have the words 'shun or avoid or ridicule or despise' with respect to the shun or avoid and ridicule aspects.[202] The words 'whether living or dead' do not extend the defamation to a dead person. They merely provide that imputations concerning a dead person may defame a living person.[203]

But the codes add a fourth aspect to the test that is not present in the common law test, that of 'injured in his profession or trade'. Watterson argues that this extension has had the effect of taking over the tort for injurious falsehood.[204] However, the courts have insisted that, in order for an imputation to be defamatory, it should not extend merely to criticism of goods and services but must reflect on the plaintiff or her or his family[205] thus leaving pure economic loss caused by wrongful statements about business to the tort of injurious falsehood and consumer legislation.[206]

None of these raises issues unique to cyberspace.

8.3 'Of and concerning' the plaintiff

This final requirement is a test to see who may bring an action in defamation. Corporations can be defamed.[207] The test is satisfied if the material 'would lead persons acquainted with the plaintiff to believe that he [sic] was the person referred to'.[208] It is only when a particular person can be identified that imputations concerning a class of people will be actionable.[209] It is not necessary to name the person[210] nor is it necessary that the publisher know of the existence of the defamed person.[211] Presumably then, in a cyberspace situation, identifying the defamed person with an e-mail address[212] would be sufficient. Readers of a particular news group would probably not constitute an identifiable class of people as it is impossible to identify all recipients but recipients of electronic mail which is specifically addressed would satisfy this test. In some situations, reference to a previous message (which is automatic in some news programs) or to their role[213] would also identify a person or persons sufficiently to found an action in defamation.

9. Other defences

Discussion of the law of defamation would not be complete without at least a cursory discussion of the available defences. In addition to the defence of innocent dissemination outlined above,[214] the major defences are truth (or justification), fair comment, and qualified privilege.

9.1 Truth or justification

In Victoria, South Australia, Western Australia[215] and the Northern Territory, truth is a complete defence regardless of the intent of the publisher. However it is truth of the imputations that is required, not truth that a statement which is republished was actually made.[216] In New South Wales,[217] Queensland,[218] Tasmania[219] and the A.C.T.,[220] the defendant must also show that the material was published for the 'public benefit', or for the 'public interest'.[221] It is a difficult defence to establish as the defendant has to establish the truth of all imputations,[222] although he or she can rely on imputations not presented by the plaintiff and establish the truth of those imputations.[223] This means that where the 'sting' of the true imputations far outweighs that of the incorrect facts or imputations,[224] the defendant may still be able to rely on the defence[225] despite the fact that the plaintiff does not plead the true imputations.[226] Note that:

it is presumed that defamatory material is false; to take advantage of the defence of justification or truth, the defendant must establish the truth of the defamatory material.[227]

This is contrasted to the U.S. position where the plaintiff bears the burden of proving the falsity of the imputations.[228]

Despite the fact that it has been held that reporting the fact that somebody has been charged with an offence is justified purely by proving that the charge was in fact made[229] extreme circumstances will override this presumption.[230]

9.2 Fair Comment

This defence is aimed at allowing public discussion free from threat of suit. It is available providing the comment is fair, is on a matter of public interest, is based on facts present or referred to in the material and the facts are true or absolutely privileged.[231] An unsupported allegation is more likely to be treated as factual.[232] For material to be a comment it must be an opinion, deduction, conclusion, or inference.[233] Fair means the opinion could be honestly held[234] and was honestly held by the publisher[235] except that, in Queensland and Tasmania, it need only be fair and published in good faith -not necessarily honestly held.[236] In other jurisdictions, malice on the part of the publisher at least goes to establishing a lack of fairness[237] but has been held to remove the defence entirely.[238] The subject of the opinion must be of public interest, either because it is a literary, artistic or dramatic work which has a public viewing and is designed to provoke a public reaction,[239] or because it relates to public office.[240] Lord Denning went as far as to say that the defence applies where the subject matter would

affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others.[241]

It seems that this defence may be activated by opinion on the performance of an operator of a computer network service, or the abilities of a moderator of a particular news group, as these activities would certainly concern the 'public' that would receive the publication. The position is codified in New South Wales,[242] Queensland,[243] Western Australia,[244] Tasmania,[245] and the Northern Territory.[246] The position under the various codes does not appear to vary greatly from that under the common law.

It is asserted that the First Amendment to the US Constitution causes a great difference of practice in defamation law between Australia and the U.S. greatly reducing the coverage of the law for matters of public interest.[247] However, the US exception has been limited to expressions of opinion and not those of fact.[248] If this is the case, then its operation will not differ substantially from the defence of fair comment here and in England. This seems to be supported by comparison of the actual numbers of successful actions.[249]

9.3 Privilege

There are two levels of privilege afforded to publishers. That of absolute privilege, which is attached to statements in parliamentary proceedings, judicial proceedings and parliamentary papers, and protects the making of those statements in the course of proceedings[250] or the official reporting of those proceedings.[251] Even though these statements may be made electronically in the future, their operation will be limited to a handful of authorized agencies and the operation will not be substantially different from that which applies to the paper services.

The other concerns qualified privilege which is activated by publication in the performance of a duty or to protect an interest, fair reporting of selected proceedings, extracts from certain documents and official notices. There is great variance even between Australian jurisdictions as to what statements are covered by this defence. For a tabulated summary of the Australian law on privilege the reader is referred to the Australian Law Reform Commission Report.[252] The first of these requires a reciprocal duty on the part of the receiver[253] severely limiting the operation of the defence. Publication to a trade union (of matters relating to the union)[254] or similar body[255] has brought this defence into operation. Presumably similar situations could arise in cyberspace. For instance, while defamatory matter is unlikely given their present role, publication of deliberations of ISOC, the governing body of the Internet, to system operators may attract this privilege. Broader defences requiring public interest but not a reciprocal duty are available in New South Wales,[256] Queensland,[257] and Tasmania.[258] Providing there is no malice, qualified privilege entitles one to make defamatory statements.[259]

9.4 Apology

In some circumstances an apology published by the defendant can be a complete statutory defence providing there was no malice[260] or gross negligence[261] in the publication and that the words and placement of the apology are appropriate for the damage done by the defamation.[262] In South Australia the statutory defence applies to any libel[263] which means heightened interest in the discussion in Section 6. In other jurisdictions it applies only to material in a newspaper or periodical which is of little relevance to cyberspace. In a common law context, an apology or correction is still relevant to assessment of damages as it may reduce or eliminate the damage to reputation caused by the publication,[264] however it may not eliminate the distress and hurt experienced by the plaintiff or his or her vindication, which are all relevant to calculation of damages.[265] An apology published during the course of the trial may even lead to a reduction in the costs awarded.[266]

Given the wide public access to the Internet, it would seem that the most effective way of mitigating the loss to the victim of defamatory electronic communications is to encourage the publication of apologies. Legislation which extends this defence to defamation and apologies published via the same delivery mechanism at least in cyberspace would seem a sensible extension, potentially saving the courts and parties some expensive litigation.

The News South Wales Law Reform Commission has suggested extensive changes to the law of defamation to encourage potential plaintiffs to seek a published apology or a court declaration of untruth rather than damages.[267] These suggestions although criticised[268] go some way to achieving appropriate redress for wrongful publication. Widespread adoption of these or similar proposals would do much to alleviate the fears of cyberspace citizens.

10. Criminal Defamation

In Victoria, South Australia, and the Northern Territory the common law still determines criminal liability also.[269] Any libel[270] providing it is sufficiently serious[271] can also lead to criminal proceedings. Originally the defamatory material needed to have a tendency to breach the peace but this is no longer required[272] (except in the Northern Territory as a substitute for intent[273]). Despite these changes the links with breaching the peace remain as there is:

• no need for publication to a third person or

• for the defamed person to be alive;

• truth is not a complete defence - an element of public benefit is required; and

• a group can be criminally defamed but not tortiously.[274]

This leaves the somewhat unsatisfactory result that criminal liability is imposed in some situations where civil liability would not be.

Queensland, Western Australia and Tasmania have codified the criminal liability in identical terms providing for a misdemeanour where there is no knowledge of the falsity of the imputations or, where there is knowledge of falsity, a more serious penalty.[275] The A.C.T. requires malice (and knowledge for the more serious offence).[276] NSW abolished punitive damages and substituted a new offence which requires either 'intent to cause serious harm' or a probability known to the accused that there will be serious harm before imposing liability.[277]

What is needed to find a mens rea[278] for these offences is unclear.[279]

11. Similar Actions

Related actions include that of injurious falsehood and the consumer protection action for misleading and deceptive conduct. Commentators suggest that the distinction between the three is being blurred[280] as do some judicial comments:

There is no definable boundary between conduct which is misleading or deceptive or likely to mislead or deceive and material which is defamatory.[281]

To found an action in injurious falsehood the plaintiff must establish that the statement was untrue,[282] that she or he suffered actual financial loss,[283] and that the defendant acted with malice.[284] Malice is founded where the publisher knew that the statement was likely to injure the plaintiff and knew the statement to be false or was reckless as to its truth.[285] There is some scope for use of this action in the context of cyberspace, particularly where a service provided by the plaintiff receives adverse publicity by news or e-mail.

The provisions of Part V of the Trade Practices Act[286] have found wide and flexible application in numerous areas of the law. Control of publication is no exception. Subsection 85(3) protects media organisations with no actual or constructive knowledge of the false claims of an advertisement but this is not so of other publications. The conduct must be related to 'trade and commerce' but a very wide interpretation is taken.[287] The effect this would have had on the Internet is limited given its earlier non-commercial nature, but as the service is increasingly commercialized, and with respect to commercial services like those of LEXIS and CompuServe (both now connected to the Internet) there was no doubt scope for the operation of these provisions.

This application was seen as undesirable and s.65A[288] was added to exclude application of s.52 and related sections to a 'prescribed publication' or 'prescribed information provider' but not with respect to the supply of their own goods, services and land. The object was to exclude the media from the operation of these sections.[289] On this basis it is likely that Internet and similar services can be made immune from prosecution as primary publishers under this legislation unless the publication concerns their own goods and services, however this will require proclamation that the Internet and similar services are prescribed publications which has not yet occurred.

Where there is actual or constructive knowledge of another's misleading or deceptive conduct, the second publisher may be held liable as an ancillary.[290] This may lead to liability of an operator of a computer for the statements of others published by his or her service in circumstances similar to those where liability might be attached as a republisher of defamatory material.

12. Conclusion

Cyberspace covers a broad spectrum of services including transfer of files, electronic mail and news, and conferencing services. Each of these should be considered separately when assessing the appropriateness of the law which applies to them. Defamation law is equally applicable to the Internet and cyberspace as it is to any other media. While the law is largely appropriate for dealing with abuses in cyberspace, there is need for some reform, primarily to clarify the law as it applies to this growing medium. With lawyers taking their first steps into cyberspace it is important for users, owners and operators to be aware of their responsibilities.

12.1 Advice to owners and operators

It is appropriate that the operators of computer networks should bear some liability as there needs to be some method of compensating injured people and a means of deterring abuse,[291] but only where it can be shown that they acted unreasonably and failed to take precautions.[292] However, the law as it stands may impose a higher duty of care than many owners or operators realize.

The law at present with regard to owners and operators can be summarized as follows:

• if an owner or operator of a computer which is part of a network (or one of their authorized agents) writes and causes defamatory material to be published on the network they will be liable; and

• if another person writes defamatory material, gives it to the owner or operator of a computer and the owner or operator (or one of their authorized agents) causes the material to be published on the network they will be liable; and

• if another person publishes defamatory material on the network and the computer redistributes that material its owner or operator may be liable but only if either:

- they (or one of their authorized agents) knew the material was defamatory; or

- they (or one of their authorized agents) had reason to be suspicious that some or all of the material was defamatory.

Some situations which might give rise to such suspicions include:

• the nature and previous history of the news group or mailing list in which the defamatory material was posted (e.g. an operator who continues to distribute a group notorious for containing defamatory messages may be liable);

• the previous history of the person posting the message (e.g. suspicion of a message might arise where it is authored by a person who has a history of using the network to publish defamatory material);

• actually reading material which is likely to engender hatred, contempt or ridicule of a person, lower their estimation in the sight of other readers, or cause other readers to shun or avoid the subject of the material.

Where any of these situations arise operators and owners of computers on networks should put in place mechanisms to prevent themselves and the computer systems under their control being involved in the further publication.

While it might seem prudent for operators and moderators to monitor messages to ensure that defamatory material (or material in breach of intellectual property rights) is not published by them, quite apart from the privacy issues, this imposes a considerable burden on the operator as the sheer volume of material is unmanageable (especially where encoded).[293] This solution is inadvisable as the operator with the responsibility for screening messages is unlikely to be a skilled defamation lawyer (and even they make mistakes in this area) leading to defamatory material slipping through. This active screening also means that the operator and hence the owner assumes some of the risk, and is in no better position than the editor and owner of a newspaper. Automatic screening of messages suffers from similar problems except that mistakes are even more likely.[294]

In any case, an operator or owner of a computer connected to a network which might redistribute defamatory material who reads a defamatory message or its defamatory nature is otherwise made known to her or him should take all possible steps to avoid publishing that item to any other person. Despite the strong convention on the Internet against 'killing' items except in extreme circumstances, the potential liability for a widely published defamatory news post warrants such an action. Given a fairly typical damages award of $40,000 dollars in the Rindos case, the certain liability of a person who has control over the media and knowledge of the defamation, and the usually 'deep pockets' of owners and operators of computer networks, removing defamatory messages is only prudent. In any case it is only fair to notify the original publisher of the message (presumably this will be possible by email) of the defamatory nature of their post, and any steps that were taken to avoid republication. For similar reasons, serious thought should be given by operators wishing to avoid liability for defamation to dropping news groups and mailing lists which are likely to contain defamatory material (e.g. 'flame' groups).

It is important for operators and owners of computers on networks to make sure misusers can be identified (i.e. have an account for every user).[295] At the very least this will allow them to join the user as a co-defendant in an action against them for defamation. Owners and operators, when providing services particularly to employees should also ensure that they clearly inform users that posting of defamatory material is not authorized (which may avoid vicarious liability as an employer and will go some way to establishing the innocent dissemination defence). Although there may be ethical reasons for avoiding this measure (by analogy with the relationship between newspapers and their contributors either from the public or on staff), some thought should be given to obtaining indemnities from users of cyberspace for owner's or operator's liability arising from defamatory posts made by the user. This could be imposed as a condition of access to the services provided by the owner or operator of the system, both on users and owners and operators of other computers on the same network.

12.2 Suggested law reform

The general policy issues and hence the basic principles of defamation law are no different in cyberspace but the medium does expose some weaknesses in the current law.

The major weakness exposed by cyberspace is its total disregard for political or geographical borders. Previously international and even intranational cross-jurisdictional publication was mostly limited to publishers with large financial resources and hence access to adequate legal advice in many jurisdictions. The most severely financially disadvantaged can gain free access through community service providers so cross-jurisdictional publication to a large audience is no longer the preserve of national and multi-national media giants. Great attention must be paid to making the law uniform across state and national borders, requiring the pursuit of international conventions like those in the area of intellectual property. Such international conventions would also give the Federal Government power to enact uniform defamation law throughout Australia, which is currently unconstitutional. Within Australia, particular attention should be paid to s.11 of the cross-vesting scheme. It is necessary to clarify that courts which have now been given the power to exercise the jurisdiction of any superior courts in the land, should apply the law of the place of the wrong whether or not the cross-vesting scheme is invoked. This would bring the wording of the legislation in-line with its stated aims of providing parties with access to the laws of every Australian jurisdiction regardless of the court in which they happen to find themselves, and would eliminate the gross anomaly that courts can exercise each other's jurisdiction unfettered when there is no transfer under the scheme but cannot where there has been a transfer.

Some clarification of the test to distinguish libel and slander would also be advisable. For uniformity, the Federal Government could enact an equivalent of s.206 Broadcasting Services Act 1992 (Cth) applying not to broadcasts but to electronic services. Such a provision must address the two extremes of transitory comments made in conferencing and more permanent and widely publicized electronic news, and the vast spectrum in between. Drafting adequate clauses may prove difficult. The alternative is to prescribe the permanent form test for all defamation cases rather than specifically targeting computer networks, however each State government would need to independently legislate leading to likely inconsistencies.

12.3 Epilogue

The present law has a number of solutions to abuse of cyberspace. There are many problems of crossing jurisdictions and lack of uniformity, but these can be resolved, indeed, will be forced to be resolved as cyberspace turns us into a truly global community.


[#] An electronic version can be found on the World Wide Web at http://www.kbs.citri.edu.au/law/defame.html

[*] LL.B.(Melb.) B.Sc.(Hons)(Melb.). L.Mus.A.(AMEB). Studying to complete a Ph.D. in Computer Science from RMIT, Melbourne at the Collaborative Information Technology Research Institute. email: tja@kbs.citri.edu.au

[1] Gibson, W, Neuromancer (1984).

[2] Branscomb, A W 'Common law for the electronic frontier' [Sep. 1991] 165 Scientific American 112, 112.

[3] A computer network is created as soon as two computers are linked together in a way which allows them to communicate information between them.

[4] Branscomb, op. cit. quoting John P. Barlow co-founder of the Electronic Frontier Foundation.

[5] See for example: Gilbert, J 'Computer bulletin board operator liability for user misuse' (1985) 54 Fordham Law Review 439; Beall, R 'Developing a coherent approach to the regulation of computer bulletin boards' (1987) 7 Computer/Law Journal 499; Faucher, J D 'Let the chips fall where they may: choice of law in computer bulletin board defamation cases' (1993) 26 University of California, Davis, Law Review 1045. Most assume connection is from a personal computer through the public telephone system to the service provider (this is technically a computer network as the computer providing the service and the computer viewed by the user of the service create a temporary network) but more permanent links can be established through leased lines (available from Telecom in Australia), satellite, microwave, and private lines depending on the location of and the resources available to the user and provider of the service.

[6] Becker, L E 'The liability of computer bulletin board operators for defamation posted by others' (1989) 22 Connecticut Law Review 203, 206; Anne Branscomb warns against treating all electronic media alike (Branscomb, op. cit. 114-5) and commenting that bulletin board services are a hybrid of private and public and should be treated according to the intents of the users (Ibid. 116).

[7] Kroll, E The whole Internet: user's guide & catalog (1992), Chapter 8, 127-154.

[8] Becker, op. cit. 211. Jensen, E C 'An electronic soapbox: computer bulletin boards and the First Amendment' (1987) 39 Federal Communications Law Journal 217, 218; or 'messaging' (Beall, op. cit. 499).

[9] 'Commercial services have scores of sections, arranged by topics ranging from politics, sex, and religion through literary criticism to tropical fish.' Becker, op. cit. 211.

[10] Kroll, op. cit. Chapter 7, 91-126; Becker, op. cit. 211-2; Jensen, op. cit. 218-9.

[11] Although this can only be ensured by using some form of encryption which is not currently widely used for various reasons.

[12] Jensen, op. cit. 218; Becker, op. cit. 212; The Internet does not support this in a general way but the same effect can be achieved by remote login or telnet to physically remote machines and using the commands available on the machine itself, see Kroll, op. cit. Chapter 5, 45-58.

[13] Becker, op. cit. 212.

[14] A user is said to be able to login to a computer when they have been allocated a user name and a password and are specifically authorized to use that computer. This applies primarily to computers which allow more than one user at a time and not to personal computers.

[15] Kroll, op. cit. Chapter 6, 59-90.

[16] Becker, op. cit. 213. Conferencing is usually limited to simple text although technology is under development to handle audio and video connections.

[17] E.g. LEXIS, or WestLaw in which case there is usually a user interface provided to access more advanced facilities than just transferring the file.

[18] Jensen, op. cit. 218; Becker, op. cit. 207-9.

[19] A device which allows computers to communicate over conventional telephone lines.

[20] Writers differ over what they consider to be the Internet - Kroll, op. cit. 13. For the current purposes, any computer which is currently able to communicate with the Internet (whether by the original Internet Protocol or via some translation process) will be considered part of the network. For a brief description (with very helpful diagrams) of the Internet for the uninitiated see Cerf, V G 'Networks' [Sep. 1991] 165 Scientific American 42 (Vint Cerf is president of ISOC, see note 37). For a more comprehensive description see Kroll op. cit.

[21] Again writers differ. Often 'cyberspace' refers to any form of computer based communication but it is used interchangeably with 'Internet' - Press, L 'The Net: progress and opportunity' (1992) 35(12) Communications of the Association of Computing Machinery (ACM) 21, 21 note 1.

[22] Kroll, op. cit. 16. A conservative estimate. It is more likely over 100 and continually growing especially into poorer countries Press, op. cit.

[23] E.g. CSIRO, NASA, Australian universities.

[24] This is quite widespread in the affluent U.S. schools and in Latin America (Press, op. cit. 23) and the first Australian example, Wesley College, Melbourne has been connected since 1990.

[25] Kroll, op. cit. 16-7. For instance the commercial networks Prodigy, DECNet, CompuServe and ClariNET. While large businesses can afford their own national and international computer networks, small business is increasingly realizing that, by connecting each of their offices to the Internet for a small fee they can obtain similar advantages for a fraction of the cost.

[26] Press, L op. cit. 21; Solensky, F 'The growing Internet', (1992) 6(5) ConneXions 46.

[27] Not necessarily in physical distance but more often in terms of number of computers it needs to go through before reaching its destination.

[28] Kroll, op. cit. 19ff.

[29] A sub-network connection usually requires a translation from the language used by the sub-network to a language understood by the existing network. This service is provided by a 'gateway'. There may be many gateways from one subnetwork to another. See Cerf op. cit

[30] Kroll, op. cit. Chapter 5, 45-58.

[31] These need to be encoded in some way before transmitting them. All of the encoded forms of sound or pictures require large numbers of bits to store them, which means that they require huge amounts of storage and have a slow transfer rate. For this reason, the use of such services has previously been limited by the capabilities of the networks, but as the networks become faster, and able to handle more traffic, such uses are becoming more widespread. See Macedonia, M. R. and Bratzman, D. P., 'MBone provides audio and video across the Internet' (1994) 27 IEEE Computer 30.

[32] A global co-operative endeavour initiated by the Counseil Europeen pour la Recherche Nucleaire (CERN) - European Laboratory for Particle Physics. See Kroll, op. cit. Chapter 13, 227ff.

[33] A method of presenting information where selected words or icons (small pictures) can be 'expanded' at any time to provide further information. The information might be a description or definition of the word, or possibly an illustration or diagram, or even full video with sound.

[34] For future directions of the Internet and accessible discussion of some emerging technologies see generally the special edition on 'Communications, Computers and Networks' [Sep. 1991] 165 Scientific American.

[35] General Instrument signed agreements this year with Microsoft and Intel to incorporate software into domestic televisions allowing a wireless mouse to point at the screen and choose movies, home shop or play computer games - ACM, 'Converting television' (June 1993) 36(4) Communications of the ACM 9. Major newspaper publishers including Gannett, Knight-Ridder, and Times-Mirror have established a consortium to research new ways of delivering news involving computer networks and electronic distribution - Fox, R 'Future news' (July 1993) 36(7) Communications of the ACM 11.

[36] Gore, Al 'Infrastructure for the Global Village' [Sep. 1991] 165 Scientific American 108 (then Senator Gore) referring to the so-called 'data-highway'.

[37] Geoff Huston, Technical Manager of the Australian Academic and Research Network (AARNet - the major Australian sub-network of the Internet) and secretary of the Internet Society (ISOC - the closest there is to a governing body of the Internet), Campus Review (University of Melbourne), 30 September - 6 October, 1993.

[38] See generally Faucher, J D 'Let the chips fall where they may: choice of law in computer bulletin board defamation cases' (1993) 26 University of California, Davis, Law Review 1045. Although the writer incorrectly suggests that a new federal law would solve the conflicts problem ignoring the international nature of the Internet, ibid. 1068.

[39] Rindos v. Hardwick Unreported Judgement 940164, Delivered 31 March 1994, Supreme Court of Western Australia, Ipp J.

[40] In fact only three, all on the issue of whether separate publications should be considered together for the purposes of a defamation suit.

[41] Cubby, Inc. v. CompuServe 776 F. Supp 135 (1991). CompuServe is now connected to the Internet.

[42] The suit was settled for $US 500,000, ACM, 'Dressed for success' (Dec. 1992) 35(12) Communications of the ACM 7.

[43] Becker, op.cit. 205.

[44] Private communication with David Rindos 21/4/94.

[45] Walker, S The Law of Journalism in Australia (1989), 135.

[46] Defamation Law of Qld 1889 s.9 applying the Criminal Code Act 1899 (Qld) ss 365-89 to civil actions also.

[47] Defamation Act 1957 (Tas).

[48] Criminal Code Act 1913 (WA) ss 345-69 and Newspaper Libel and Registration Act 1884. See the Law Reform Commission of Western Australia, Report on Defamation, Project No. 8, 1979.

[49] Wrongs Act 1958 (Vic).

[50] Wrongs Act 1936 (SA).

[51] NSW Act Application Ordinance (ACT) No. 41 1984 Schedule 2 Parts 11 and 12 applying the Defamation Act 1901 (NSW) and the Defamation (Amendment) Act 1909 (NSW).

[52] Defamation Act 1938 (NT).

[53] Defamation Act 1974 s.3(2) affirms that this is only a partial codification. A more complete codification was in force between 1958 and 1974.

[54] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, par.46.

[55] Faucher, op. cit.

[56] Carson v. John Fairfax & Sons Ltd [1993] HCA 31; (1992) 113 ALR 577, 589 (per Mason CJ, Deane, Dawson and Gaudron JJ).

[57] Aldridge v. John Fairfax & Sons Ltd [1984] 2 NSWLR 544, 551.

[58] Watterson, R., 'What is defamatory today?' (1993) 67 Australian Law Journal 811, 812.

[59] Walker, S The Law of Journalism in Australia (1989), 142.

[60] Webb v. Beavan (1883) 11 QBD 609; D & L Caterers Ltd v. D'Ajou [1945] KB 210.

[61] Carslake v. Mapledoran [1788] EngR 148; (1788) 2 TR 473; 100 ER 255.

[62] Slander of Women Act 1891 (UK); now s.8 Wrongs Act 1958 (Vic), s.5 Wrongs Act 1936-75 (SA), s.4 Defamation Ordinance 1938-64 (NT).

[63] Chomley v. Watson [1907] ArgusLawRp 50; [1907] VLR 502.

[64] Criminal Code (Qld) s.368.

[65] Defamation Act 1957 (Tas) s.6.

[66] Defamation Act 1901 (NSW) s.3(2).

[67] Defamation Act 1974 (NSW) s.8.

[68] Youssoupoff v. MGM Pictures Ltd (1934) 50 TLR 581, 583, 587, words spoken on film are libel.

[69] Wainer v. Rippon [1980] VicRp 15; [1980] VR 129, 134 and Meldrum v. ABC Ltd [1932] ArgusLawRp 78; [1932] VLR 425, 426. This is the test adopted in the U.S. - Stevens, G E & Hoffman, H M 'Tort liability for defamation by computer' (1977) 6 Rutgers Journal of Computers and the Law 91, 93 note 11.

[70] Meldrum v. ABC Ltd [1932] ArgusLawRp 78; [1932] VLR 425, 438-9 per McArthur J, Mann J agreeing (this decision has been highly criticized as inconsistent with English authority - see Redmond, J A 'Reading from script into broadcasting apparatus - libel or slander' (1933) 7 Australian Law Journal 257; 'Reading from script into broadcasting apparatus - libel or slander' (1932) 6 Australian Law Journal 301) and Mitchell v. ABC (1958) 60 WALR 38 per Jackson J.

[71] Wainer v. Rippon [1980] VicRp 15; [1980] VR 129, 132 affirming the centrality of the permanence test in the light of the legislation discussed below.

[72] Broadcasting Act 1942 (Cth) s.120. Now Broadcasting Services Act 1992 (Cth) s.206.

[73] Burns v. Collins [1968] VicRp 88; [1968] VR 667, 670 where Mennhennitt J suggesting the two tests were alternatives and that the legislation did not reflect this. This decision is discussed in Miller, R H 'The Commonwealth broadcasting power and defamation by radio and television' (1972) 4 University of Tasmania Law Review 70.

[74] Kasic v. ABC [1964] VicRp 90; [1964] VR 702, 705; Wainer v. Rippon [1980] VicRp 15; [1980] VR 129, 134-5 (not restricted to operators of broadcasting stations); Church of Scientology Inc v. Anderson [1980] WAR 71,76-7; and Gorton v. ABC (1973) 227 FLR 181, 184.

[75] Broadcasting Services Act 1992 (Cth) s.6(1).

[76] Macedonia & Bratzman, op. cit. Note: that this exception raises the question of the legality under the Broadcast Services Act of this service even being provided to Australia.

[77] Redmond, J A 'Reading from script into broadcasting apparatus - libel or slander' (1933) 7 Australian Law Journal 257, 258.

[78] Perhaps the dissenting judgment of Lowe J in Meldrum v. ABC [1932] ArgusLawRp 78; [1932] VLR 425, 442-3 provides some support.

[79] Miller, op. cit. 71-2; Hayes R A, 'Section 124 of the Broadcasting and Television Act and the Defamatory Broadcast' [1971] Australian Current Law Review 218, 219-20; Redmond, J A 'Reading from script into broadcasting apparatus - libel or slander' (1933) 7 Australian Law Journal 257, 258-9.

[80] Pullman v. Walter Hill and Co Ltd [1891] 1 QB 524, 527, 529, 530; Burrows v. Knightley (1987) 10 NSWLR 651, 654; Defamation Act 1957 (Tas) s.7; Criminal Code (Qld) s.369; Criminal Code (WA) s.349.

[81] Adams (1889) 22 QBD 66, 69.

[82] Sadgrove v. Hole [1901] 2 KB 1.

[83] O'Connor v. Skehan [1903] QWN 43 and Wennhak v. Morgan (1888) 20 QBD 635.

[84] Evatt v. Australian Consolidated Press Ltd (1969) 90 WN(Pt 1) (NSW) 384,385; Webb v. Bloch [1928] HCA 50; (1928) 41 CLR 331, 362-6; Criminal Code (Qld) s. 387 and Defamation Law of Queensland 1889 ss 34 and 36; Defamation Act 1957 (Tas) ss 26-7. Contrast the U.S. position where secondary publishers need to have actual or constructive knowledge - Becker, op. cit. 226-7.

[85] Thiess v. TCN Nine (No. 5) [1994] 1 Qld R 156, 194-5 citing Webb v. Bloch [1928] HCA 50; (1928) 41 CLR 331, 345.

[86] Walker, S The Law of Journalism in Australia (1989), 149; Whitney v. Moignard (1890) 24 QBD 630, 631, 632; dicta in Speight v. Gosnay (1891) 60 LJQB 231, 232, 233; Sims v. Wran [1984] 1 NSWLR 317, 320. There are significant implications for pleading however: Thiess v. TCN Nine (No.5) [1994] 1 Qld R 156, 195-6.

[87] (1928) 841 CLR 331.

[88] Ibid. 363-6.

[89] Hewitt v. West Australian Newspapers Ltd (1976) 17 ACTR 15, 20 allaying the fears expressed in Cooper, J 'Defamation by satellite' (1988) 132 Solicitors Journal 1021.

[90] McLean v. David Syme & Co (1970) 72 SR (NSW) 513, 517; Toomey v. Mirror Newspapers Ltd (1985) 1 NSWLR 173, 177-8.

[91] Indeed in New South Wales, one can only plead a separate cause against the same defendant for the same material by leave of the court - Defamation Act 1974 (NSW) s.9.

[92] McLean v. David Syme & Co (1970) 72 SR (NSW) 513, 528; Toomey v. Mirror Newspapers Ltd (1985) 1 NSWLR 173, 178.

[93] Gorton v. ABC (1973) 22 FLR 181, 183; Jenner v. Sun Oil [1952] 2 DLR 526, 537.

[94] Toomey v. Mirror Newspapers Ltd (1985) 1 NSWLR 173, 179; Burrows v. Knightley (1987) 10 NSWLR 651, 655.

[95] Harper and Jones, The Law of Torts Vol 1 (1956) 394-8. The Faulks Committee (Report of the Committee on Defamation (1975) Cmnd 5909 par.290) recommended one proceeding for the same material against the same defendant and further proceedings only with leave of the court similar to that now implemented in New South Wales (Defamation Act 1974 (NSW) s.9. The Australian Law Reform Commission recommended a single publication rule like that in the U.S. (Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, par.113-5) however there has been no change in Australia other than in NSW.

[96] Faucher, op. cit. 1067.

[97] Toomey v. Mirror Newspapers Ltd (1985) 1 NSWLR 173, 186.

[98] [1937] 1 All ER 725.

[99] Ibid. 729 per Slesser LJ, Scott LJ agreeing.

[100] The forum is not convenient - in England a court will only try an issue if there is a real and substantial connection with the jurisdiction. See Spiliada Maritime Corp. v. Cansulex Ltd [1987] 1 AC 460.

[101] [1952] 2 DLR 526, 537-8, 540 distinguishing Kroch as applying forum non conveniens.

[102] Ibid. 538-41.

[103] Oceanic Sunshine Special Shipping v. Fay [1988] HCA 32; (1988) 165 CLR 197, 247-8. Voth v. Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, 570.

[104] Ibid. See also Kawasaki Steel Corporation v. Owners of Ship Daeyong Hong (1993) 120 ALR 109.

[105] Oceanic Sunshine Special Shipping v. Fay [1988] HCA 32; (1988) 165 CLR 197, 248. See also CV Bankinvest AG v. Seabrook (1988) 14 NSWLR 711.

[106] See also Cooper, op.cit. 1022. The provisions for service out in Australian superior courts provide similar difficulties.

[107] (1870) LR 6 QB 1, 28-9 as followed by the High Court in Koop v. Bebb [1951] HCA 77; (1951) 84 CLR 629, 642.

[108] Although there has been recent debate as to whether forum shopping is an evil to be avoided ( Jueger, F, 'What's wrong with forum shopping?' [1994] SydLawRw 1; (1994) 16 Sydney Law Review 5; Opeskin, B, 'The price of forum shopping: a reply' [1994] SydLawRw 2; (1994) 16 Sydney Law Review 14; Jueger, F 'Forum shopping: a rejoinder' [1994] SydLawRw 3; (1994) 16 Sydney Law Review 28) the Australian courts and legislatures seem united in opposition to allowing unfettered forum shopping.

[109] Breavington v. Godleman [1988] HCA 40; (1988) 169 CLR 41, 78-9 (Mason CJ), 99 (Wilson and Gaudron JJ), 126 (Deane J) relying on s.118 of the Constitution.

[110] S.384. Faucher, op. cit. 1056-66 discusses the history of U.S. approaches to this problem.

[111] Breavington v. Godleman [1988] HCA 40; (1988) 169 CLR 41, 99. See also ABC v. Waterhouse (1991) 25 NSWLR 519, 525-6.

[112] Ibid. 531 where Samuels JA summarizes the majority conclusions of the High Court in Breavington (Priestley JA and Meagher JA agreeing).

[113] (1971) s.145.

[114] McKain v. RW Miller & Co (SA) [1991] HCA 56; (1992) 174 CLR 1, 35, 37-40 (joint judgment of Brennan, Dawson, Toohey and McHugh JJ). Since reaffirmed twice by the High Court all in personal injury claims: Stevens v. Head [1993] HCA 19; (1993) 176 CLR 433 and Goryl v. Greyhound Australia Pty Ltd [1994] HCA 18; (1994) 120 ALR 605. In all three cases Deane and Gaudron JJ have maintained that s.118 of the Constitution prevents anything but lex fori within Australia.

[115] Waterhouse v. ABC Hunt J, NSW Supreme Court, 7 February 1992, unreported. Affirmed by Hunt J in Waterhouse v. ABC (1992) 27 NSWLR 1.

[116] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth, and States). This cooperative legislative scheme allows any State or Territory Supreme Court or the Federal Court or Family Court in Australia to exercise the jurisdiction of any another of these courts. Transfer provisions allow the case to be transferred to a more appropriate court to prevent forum shopping. None of the previously mentioned High Court cases consider the impact of this scheme!

[117] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth, and States), s.11(1)(a) except that for Federal Courts they must apply the jurisdiction of the State or Territory from which the case was transferred (s.11(2)).

[118] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth, and States), s.11(1)(b).

[119] (1992) 107 ACTR 1.

[120] Ibid. 6. This flexibility was admitted in both Breavington and McKain.

[121] Ibid. 7 quoting Mason CJ in Breavington [1988] HCA 40; (1988) 169 CLR 41, 258.

[122] Woodger (1992) 107 ACTR 1, 7.

[123] Ibid. 8.

[124] See paragraph (b) of the preamble to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth, and States).

[125] Hepburn v. TCN Channel 9 [1983] 2 NSWLR 664; McCauley v. John Fairfax & Sons [1933] NSWStRp 65; (1933) 34 SR (NSW) 339,1341-2; "Truth" (NZ) Ltd v. Philip North Holloway [1960] 1 WLR 997, 1002-3.

[126] The Koursk [1924] P. 140, 155 with Cairns, BC Australian Civil Procedure (3rd Edition 1992) 241.

[127] Walker, S The Law of Journalism in Australia (1989), 158-61 par's 3.8.17-8.

[128] "Truth" (NZ) Ltd v. Philip North Holloway [1960] 1 WLR 997, 1003.

[129] Heerey, P C 'Publishing the defamatory statements of others' (1985) 59 Australian Law Journal 371. For talk-back radio see Window v. 3AW Broadcasting Co., Lazarus J, 5 March 1986, unreported.

[130] "Truth" (NZ) Ltd v. Philip North Holloway [1960] 1 WLR 997, 1002-3; Hughes v. WA Newspapers [1940] WALawRp 13; (1940) 43 WALR 12, 13; Wake v. John Fairfax & Sons [1973] 1 NSWLR 43, 49-50; and ABC v. Comalco Ltd (1986) 68 ALR 259, 265-9, 316-8, 335-7.

[131] Australian Ocean Line Pty Ltd v. West Australian Newspapers Ltd [1985] FCA 37; (1985) 58 ALR 549, 617.

[132] Tobin v. City Bank (1878) 1 SCR NS (NSW) 267 (Full Court of the Supreme Court).

[133] Becker, op. cit. 217, note 66 commenting at 218 that these cases all seem to imply approval by the operator of the posting.

[134] [1937] 1 KB 818.

[135] Ibid. 829, 834-5, 837-8.

[136] Ibid. 835.

[137] Where one or more people approve postings before they are distributed.

[138] Emmens v. Pottle (1885) 16 QBD 354, 357-8. Thompson v. Australian Capital Television Pty Ltd [20 Dec. 1993] (Unreported), per Gallop J, 12.

[139] The test used by Lord Bridge was is the material 'likely to contain' defamatory imputations. Lord Denning dissented arguing people will refuse to carry controversial material - Goldsmith v. Sperring [1977] 2 All ER 566, 581-2. See also Emmens v. Pottle (1885) 16 QBD 354, 357, 358; Sun Life Assurance of Canada v. W H Smith and Son (1933) 150 LT 211, 212, 214, 215-6; Thompson v. Australian Capital Television Pty Ltd [20 Dec. 1993] (Unreported), per Gallop J, 16-8 (Gallop J declining to choose between the majority and dissenting judgments).

[140] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 97.

[141] Goldsmith v. Sperring [1977] 2 All ER 566, 583-4 per Scarman LJ

[142] Lord Denning strongly dissented for this reason - Ibid. 572.

[143] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 99.

[144] Ibid. 97 but not wholesalers (at 98) or printers (at 98-9).

[145] Ibid. 98-9.

[146] New York Times Co. v. Sullivan [1964] USSC 40; 376 US 254 (1964), 279-80.

[147] The application of Sullivan is limited to certain kinds of speech - Philadelphia Newspapers Inc. v. Hepps [1986] USSC 73; 106 S.Ct. 1558 (1986), 1563; Gertz v. Robert Welch Inc [1974] USSC 144; 418 US 323 (1974).

[148] Beall, op. cit. 508-9.

[149] Restatement (Second) on Torts s.621 and Anderson v. New York Telephone Co 35 NY 2d 756 (1974).

[150] Jensen, op.cit. 250-1.

[151] 525 F2d 630 (1976).

[152] Ibid. 640.

[153] Contrary to the Australian position.

[154] Farmers Union v. WDAY 36 US 525 (1959).

[155] Gilbert, op. cit. 443-5; Beall, op. cit. 506. Jensen, op.cit. 251-2.

[156] 776 F. Supp 135 (1991).

[157] Ibid. 139 (quoting Cianci v. New Times Publishing [1980] USCA2 902; 639 F2d 54, (1977), 61).

[158] Ibid. (quoting Lerman v. Chuckleberry Publishing 521 F.Supp 228 (1981), 235).

[159] Ibid. 139-40.

[160] Ibid. 140.

[161] Western Union Telegraph Co. v. Lesene [1950] USCA4 104; 182 F2d 135 (1950), 137.

[162] Jensen, op.cit. 251-2.

[163] Walker, S The Law of Journalism in Australia (1989), 146 par.3.8.04.

[164] Thompson v. Australian Capital Television Pty Ltd [20 Dec. 1993] (Unreported), per Gallop J, 14-5.

[165] Ibid. 13.

[166] Ibid. 14.

[167] Keeping the 'signal-to-noise ratio' low.

[168] See above, section 7.4.

[169] Further detail can be found in Watterson, op. cit.

[170] Hadzel v. De Waldorf (1970) 16 FLR 174.

[171] Boyd v. Mirror Newspapers [1980] 2 NSWLR 449, 452.

[172] David Syme & Co v. Canavan [1918] HCA 50; (1918) 25 CLR 234, 238.

[173] Gorton v. ABC (1973) 22 FLR 181, 187; John Fairfax & Sons v. Hook [1983] FCA 83; (1983) 47 ALR 477, 481.

[174] Hepburn v. TCN Channel 9 [1983] 2 NSWLR 664, 667; Baltinos v. Foreign Language Publications (1986) 6 NSWLR 85, 90.

[175] Gorton v. ABC (1973) 22 FLR 181, 186-7; ABC v. Comalco Ltd (1986) 698 ALR 259, 263-4.

[176] Morosi v. Broadcasting Station 2GB [1980] 2 NSWLR 418, 420 where a radio broadcast at 7:15a.m. implied a low level of concentration in the listeners - per Samuels JA delivering the judgment of the NSW Court of Appeal.

[177] Jones v. Skelton (1963) 63 SR (NSW) 644, 650; 1 WLR 1362, 1370-1.

[178] John Fairfax & Sons v. Hook [1983] FCA 83; (1983) 72 FLR 190, 192 (Full Court of the Federal Court).

[179] Ibid.

[180] ABC v. Comalco (1986) 12 FCR 510, 515 (Full Court of the Federal Court).

[181] Bik v. Mirror Newspapers [1979] 2 NSWLR 679, 682, 683-4.

[182] Sergi v. ABC [1983] 2 NSWLR 669, 673-4.

[183] Middle East Airlines Airliban SAL v. Sungravure [1974] 1 NSWLR 323, 340 per Glass JA; Hepburn v. TCN Channel 9 [1983] 2 NSWLR 682, 686 per Hutley JA, 693-4 per Glass JA.

[184] Reader's Digest Services v. Lamb [1982] HCA 4; (1982) 150 CLR 500, 504-5 (Brennan J delivering the judgment of the High Court).

[185] Ibid.

[186] Grapelli v. Dereck Block [1981] 1 WLR 822, 825, 831; Burrows v. Knightley (1987) 10 NSWLR 651, 654.

[187] Consolidated Trust v. Browne [1948] NSWStRp 71; (1948) 49 SR (NSW) 86, 89; Cross v. Denley (1952) 52 SR (NSW) 112, 116 applies to identification also.

[188] Hough v. London Express Newspaper Ltd [1940] 2 KB 507, 513 where a photo of a lady accompanying a man wrongly described as his wife was held to convey the imputation that the wife was dishonestly presenting herself as the his wife.

[189] '"Calculated" means likely. The term draws attention to the tendency of the material rather than to its actual effect or the publisher's intention.' Walker, S The Law of Journalism in Australia (1989), 1551.

[190] Hunt J suggests that these tests are to be used in the alternative Boyd v. Mirror Newspapers [1980] 2 NSWLR 449, 452.

[191] Parmiter v. Coupland [1840] EngR 168; (1840) 151 ER 340, 342 per Baron Parke.

[192] Sim v. Stretch (1936) 52 TLR 669, 671 per Lord Atkin.

[193] Youssoupouff v. MGM (1934) 50 TLR 581, 587 per Slesser LJ.

[194] Boyd v. Mirror Newspapers [1980] 2 NSWLR 449, 452-3.

[195] Sim v. Stretch (1936) 52 TLR 669, 671 per Lord Atkin.

[196] Youssoupouff v. MGM (1934) 50 TLR 581, 587 per Slesser LJ; Boyd v. Mirror Newspapers [1980] 2 NSWLR 449, 452-3.

[197] Monti-Haitsma Enterprises Pty Ltd v. Lord [1980] Aust. Torts R. 67,967 (NSW Ct of Appeal); Ermin v. Southdown Press [1976] VicRp 31; [1976] VR 353; Kean v. Consolidated Press (1956) 73 WN (NSW)387.

[198] Criminal Code (Qld) s.366.

[199] Defamation Act 1957 (Tas) s.5.

[200] Defamation Act 1957 (Tas) s.5(1). Note that the Defamation Act 1958 (NSW)s.5 was also worded in this form but has since been repealed by the 1974 Act.

[201] Murphy v. Australian Consolidated Press [1968] 3 NSWR 200, 204 per Walsh JA.

[202] Ibid.

[203] Walker, S The Law of Journalism in Australia (1989), 154. The common law rule is that an action for defamation terminates on the death of the defamed person (at 163).

[204] Watterson, op. cit. 813.

[205] Sungravure Pty Ltd v. Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1, 6, 10, 21-5; Mirror Newspapers Ltd v. World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632, 640; Dawson Bloodstock Agency v. Mirror Newspapers [1979] 1 NSWLR 16, 18.

[206] See below, section 11.

[207] Church of Scientology of California Inc v. Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344, 354-6. In particular, the Defamation Act 1974 (NSW) s.5 does not require that the plaintiff be capable of having a family member and can be a corporation - World Hosts Pty Ltd v. Mirror Newspapers [1978] 1 NSWLR 189, 195 (NSW Court of Appeal).

[208] David Syme & Co v. Canavan [1918] HCA 50; (1918) 25 CLR 234, 238 per Isaacs J. See also Godhard v. James Inglis & Co [1904] HCA 37; (1904) 2 CLR 78.

[209] David Syme & Co v. Canavan [1918] HCA 50; (1918) 25 CLR 234, 238. So defamation occurs where the group is small enough to identify all of its members (e.g. the Queensland cabinet - Bjelke-Petersen v. Warburton [1986] 2 Qd R 465 - or a shire Council - Somerville v. Cliff (1942) 15 LGR 40) or a particular person is singled out - Knupffer v. London Express Newspapers [1944] UKHL 1; [1944] AC 116.

[210] David Syme & Co v. Canavan [1918] HCA 50; (1918) 25 CLR 234, 238.

[211] Cassidy v. Daily Mirror Newspapers [1929] 2 KB 331 (where a reference to a lady's husband in the company of another lady 'whose engagement has been announced' was held to defame the wife); E Hulton & Co v. Jones [1910] AC 20 (where an article intended to be fictitious but using the name of a real person.)

[212] Each user on a computer system which supports e-mail has a unique address, usually incorporating the address of a computer on the network together with the user name (a unique code for each user on a particular machine).

[213] The system administrator (sysop) or moderator (of a particular newsgroup) would be sufficient for receivers of a publication to identify a defamed person.

[214] See above, section 7.4.

[215] Australian Ocean Line Pty Ltd v. West Australian Newspapers Ltd [1985] FCA 37; (1985) 58 ALR 549, 597 held that the common law defence still applies in Western Australia despite the narrower defence in Criminal Code (WA) s.356.

[216] Thompson v. Australia Consolidated Press [1968] 3 NSWR 642. See also Smith [1876] SALawRp 35; (1876) 10 SALR 213.

[217] Defamation Act 1974 (NSW) s.15 although Defamation, Discussion Paper No.32, August 1993, New South Wales Law Reform Commission, par.6.22 suggests a return to truth alone as a defence.

[218] Criminal Code (Qld) s.376.

[219] Defamation Act 1957 (Tas) s.15.

[220] Defamation Act 1901 (NSW) s.6.

[221] NSW only. See Bleyer v. TCN Nine (No. 5) [1993] Aust. Tort Reports 62 for a recent example.

[222] Mutch v. Sleeman [1928] NSWStRp 104; (1928) 29 SR (NSW) 125 where the judgment of the Full Court of the Supreme Court was affirmed by the High Court on other grounds - (1929) 2 ALJ 403.

[223] Kennett v. Farmer [1988] VicRp 90; [1988] VR 991; followed in Gumina v. Williams (No 2) (1990) 3 WAR 351, 354-5.

[224] Note that where there are two or more distinct allegations, damages may still be available despite the fact that the reputation of the plaintiff is not harmed any more by the accompanying false imputation than by those that are true - Hepburn v. TCN Channel 9 [1984] 1 NSWLR 386; Jackson v. Australia Consolidated Press [1966] 2 NSWR 775.

[225] Sutherland v. Stopes [1925] AC 47, 79; Polly Peck (Holdings) v. Trelford [1986] 2 WLR 845, 869; Woodger v. Federal Capital Press (1992) 107 ACTR 1, 4. Modified in Tasmania (Defamation Act 1957 (Tas) s.18) and NSW (Defamation Act 1974 (NSW) s.16).

[226] Allaying Fleming's concerns about the Tasmanian provisions - Fleming, J G The Law of Torts 7th edition (1987) 529.

[227] Walker, S The Law of Journalism in Australia (1989), 136. Although the Court of Appeal (NSW) suggested that there was no presumption of either truth or falsity - Singleton v. French (1986) 5 NSWLR 425, 441-3.

[228] Garrison v. Louisiana [1964] USSC 217; 379 US 64 (1964), 74; and Philadelphia Newspapers v. Hepps 54 USLW 4373 (1986). United Kingdom, Report of the Committee on Defamation, (1975) Cmnd 5909, par.141 rejected a proposal to introduce this rule to England.

[229] Rochfort v. John Fairfax & Sons Ltd [1972] 1 NSWLR 16.

[230] Mirror Newspapers Ltd v. Harrison [1982] HCA 50; (1982) 149 CLR 293, 302 per Mason J (Court agreeing); Lewis v. Daily Telegraph Ltd [1964] AC 234.

[231] McLachlan v. Rural Press Ltd (No. 1) (1991) 105 FLR 369. Although Queensland and New South Wales require only an absence of belief that the facts are untrue: Pervan v. North Queensland Newspaper Co. Ltd [1993] HCA 64; (1993) 117 ALR 569, 578-9 (per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron JJ), 585 (McHugh dissenting).

[232] Smith's Newspapers Ltd v. Becker [1932] HCA 39; (1932) 47 CLR 279, 301-3 per Evatt J; Gorton v. ABC (1974) 22 FLR 181, 193.

[233] Renouf v. Federal Capital Press (1977) 17 ACTR 35, 43 (a prophecy of likely future events); Broadway Approvals v. Odhams Press [1964] 2 QB 683, 685-6; Defamation Act (NSW) s. 35.

[234] Bob Kay Real Estate Ltd v. Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505, 516-7; McQuire v. Western Morning News [1903] 2 KB 100, 109; Sims v. Wran [1984] 1 NSWLR 317, 325.

[235] Falke v. Herald & Weekly Times [1925] VicLawRp 8; [1925] VLR 56, 69 per McArthur J (Court agreeing).

[236] Pervan v. North Queensland Newspaper Co. Ltd [1993] HCA 64; (1993) 117 ALR 569, 581-2.

[237] Cawley v. Australian Consolidated Press [1981] 2 NSWLR 225, 231-7. See Howard, M 'Phillips v. Eyre - Jurisdiction test or choice of law rule?' [1982] UTasLawRw 6; 7 University of Tasmania Law Review 218.

[238] Renouf v. Federal Capital Press (1977) 17 ACTR 35, 53-9.

[239] Gardiner v. John Fairfax & Sons [1942] NSWStRp 16; (1942) 42 SR (NSW) 171, 173-4. Although extreme criticism may not attract the defence - O'Shaughnessy v. Mirror Newspapers Ltd [1970] HCA 52; (1970) 125 CLR 166 (a producer and actor); Newbury v. Triad Magazine Ltd [1921] NSWStRp 6; (1921) 21 SR (NSW) 189 (concerning a tenor); Ireland v. King (1874) 5 AJR 24 (concerning an actor).

[240] Renouf v. Federal Capital Press (1977) 17 ACTR 35, 41. Note that the private life of a public official is not normally covered by this exception - Broadbent v. Small [1876] VicLawRp 77; (1876) 2 VLR (L.) 121; Ward v. Derington (1880) 14 SALR 235; Mutch v. Sleeman [1928] NSWStRp 104; (1928) 29 SR (NSW) 125, 137.

[241] London Artists Ltd v. Littler [1968] EWCA Civ 3; [1969] 2 QB 375, 391.

[242] Defamation Act 1974 (NSW) s.31 adopting the common law.

[243] Criminal Code (Qld) s.375(1).

[244] Criminal Code (WA) s.355(1). However the common law defence is still available concurrently.

[245] Defamation Act 1957 (Tas) s.14.

[246] Defamation Act 1938 (NT) s.6A.

[247] Walker, S The Law of Journalism in Australia (1989), 136-8.

[248] Milkovitch v. Lorain Journal Co et al. [1990] USSC 117; 497 U.S. 1 (1990). Gregory v. McDonnell Douglas 131 Cal. Rptr 641 (1976). Stevens, G E & Hoffman, H M 'Tort liability for defamation by computer' (1977) 6 Rutgers Journal of Computers and the Law 91, 99-100.

[249] Walker, S The Law of Journalism in Australia (1989), 137 citing Strossen, N 'A defence of the aspirations - but not the achievements - of the US rules limiting defamation actions by public officials or public figures' (1986) 3 The Gazette of Law and Journalism 10.

[250] Browne v. M'Kinley [1886] VicLawRp 56; (1886) 12 VLR 240, 242; Givens v. David Syme & Co (No2) [1917] ArgusLawRp 65; [1917] VLR 437, 445.

[251] See Holding v. Jennings [1979] VicRp 29; [1979] VR 289.

[252] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 82-4.

[253] Horrocks v. Lowe [1975] AC 135, 149; Anderson v. Fairfax [1883] NSWLawRp 29; (1883) 4 LR NSW 183, 321-3; Mallan v. A.M. Bickford & Sons [1915] SALawRp 5; [1915] SALR 47, 83-4.

[254] Duane v. Granrott [1982] VicRp 76; [1982] VR 767; Brown v. Federated Miscellaneous Workers Union (1981) 9 NTR 33. Compare Cole v. Operative Plaster's Federation of Australia [1927] NSWStRp 85; (1927) 28 SR (NSW) 62.

[255] Chapman v. Ellesmere [1932] 2 KB 431 (publication of the results of Jockey Club stewards' deliberations in a racing journal); Thompson v. Amos (1949) 23 ALJ 98 (High Court - church synod meeting for disciplinary proceedings).

[256] Defamation Act 1974 (NSW) s.20(1)(c). Available in addition to the common law defence.

[257] Criminal Code s.377.

[258] Defamation Act 1957 (Tas) s.16 and Criminal Code (Tas) s.208.

[259] Toyne v. Everingham [1993] NTSC 55; (1993) 91 NTR 1.

[260] Wrongs Act 1958 (Vic) s.7; Wrongs Act 1936 (SA) s.10; Defamation Law of Queensland 1889 (Qld); Defamation Act 1901 (NSW) s.8 - applying in the ACT only; Defamation Act 1938 (NT) s.9; Defamation Act 1974 (NSW) s.37 which is slightly different in operation.

[261] Jackson v. Australia Consolidated Press [1966] 2 NSWR 775.

[262] Lafone v. Smith (1885) 28 LR Ex 33, 34-5.

[263] Wrongs Act 1936 (SA) s.10.

[264] Humphries v. TWT Ltd [1993] FCA 577; (1993) 120 ALR 693.

[265] Ibid. esp. 701.

[266] Ibid. although, in this case the reduction in costs was overturned as the apology and damages award did not take sufficient notice of the vindication aspect of damages.

[267] Defamation, Discussion Paper No.32, August 1993, New South Wales Law Reform Commission.

[268] Walker, S, 'The NSWLRC's Discussion Paper on defamation' (1993) 2 Torts Law Journal 69.

[269] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 102.

[270] Slander of itself cannot bring criminal sanction - Langley [1728] EngR 336; (1704) Holt KB 654; 90 ER 126 but if the material is blasphemous, seditious, obscene or tends to provoke a breach of peace there is still criminal liability - Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 102.

[271] Gleaves v. Deakin [1980] AC 477 quoting Lord Denning in Goldsmith v. Sperrings [1977] 1 WLR 478, 485.

[272] Wicks [1936] All ER 384; Goldsmith v. Pressdram Ltd [1976] 3 WLR 191.

[273] Criminal Code (NT) s.204.

[274] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 102.

[275] Criminal Code (Qld) s.380; Criminal Code (WA) s.360; Defamation Act (Tas) s.9. Defamation Act 1901 (NSW) ss 11-2 applying by virtue of the Seat of Government Acceptance Act 1909 (Cth) s.6.

[276] Defamation Act 1974 (NSW) s.50(1).

[277] Criminal intent.

[278] Walker, S The Law of Journalism in Australia (1989), 218-9.

[279] Ibid. 138 par.3.7.03. Watterson, op. cit. 811.

[280] Global Sportsman Pty Ltd v. Mirror Newspapers Ltd [1984] FCA 180; (1984) 55 ALR 25, 29 (Full Ct, Fed. Ct).

[281] Mansard Developments v. Town of Armadale (1985) 3 B.C.L. 400.

[282] Chamberlain v. Boyd (1883) 11 QBD 407, 412; Ratcliffe v. Evans [1892] 2 QB 524, 532-3.

[283] Decor Corporation Pty Ltd v. Bo-Water Scott (1985) 5 FCR 432, 436-7.

[284] Clarke v. Meigher [1917] NSWStRp 72; (1917) 17 SR (NSW) 617.

[285] 1974 (Cth) and the related State legislation - Fair Trading Act 1985 (Vic); Fair Trading Act 1987 (NSW); Fair Trading Act 1987 (SA).

[286] Selling a newspaper is sufficient - Australian Ocean Line v. West Australian Newspapers [1985] FCA 37; (1985) 58 ALR 549.

[287] This was the first case where a publisher was made liable for infringing the Trade Practices Act 1974 (Cth) s.52.

[288] The State legislation has similar amendments.

[289] Lovatt v. Consolidated Magazines Ltd (1988) 12 IPR 261, 272-4.

[290] Ss 82 and 75B(1). Australian Ocean Line v. West Australian Newspapers [1985] FCA 37; (1985) 58 ALR 549.

[291] Gilbert, op. cit. 441.

[292] Ibid. 452-3. See also Becker, op. cit. 207.

[293] Gilbert, op. cit. 447-9; Beall, op. cit. 511.

[294] Gilbert, op. cit. 449-500.

[295] Ibid. 446 commenting that there is no First Amendment right for anonymity in expressing an opinion. Jensen, op.cit. 253-5 suggests a misuser could be required to be identified in the US but not generally any member.


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