The internet has spawned a new age of unprecedented mass publication. Vast amounts of content is uploaded to the internet on a daily basis. By the end of 2009, Google reported that every minute, about 24 hours worth of content was uploaded to its internet service YouTube alone.
The ease with which material can be uploaded to the world wide web, or an email transmitted through cyberspace, and the capacity for such material to be accessed by a potentially huge audience, has created an environment in which defamatory content can flourish. Furthermore, defamers seek to hide behind the shield of anonymous personas and fictitious usernames when posting their offensive material.
The courts and lawyers practising in the defamation area have been adjusting to the new content delivery platforms. Well-entrenched defamation principles are being moulded and applied to the internet landscape.
'Anonymous' publishers of offensive content who think they can remain unidentified should think again. They are being tracked down from the electronic trails they leave behind and sued.
This article examines some of the developments in the area of defamation and the internet.
Internet defamation – where is the material published?
In 2002, the High Court delivered an important decision in the internet defamation area in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575.
The case concerned global news and information provider Dow Jones publishing an item about well?known Victorian businessman Joseph Gutnick in its online publication, Barron’s. Gutnick claimed the item was defamatory of him and issued proceedings in Victoria.
Dow Jones’ publication process involved content for the item being initially uploaded on to servers housed in New Jersey in the United States. The item was ultimately made available to subscribers of the Barron’s online e-zine around the world, including subscribers in Victoria.
Dow Jones argued that New Jersey – and not Victoria – was the proper forum for the case to be heard because publication of the item occurred where it was uploaded on to Dow Jones’ server, namely in New Jersey. Strategically, Dow Jones sought to fight the case in the USA rather than Australia and so argued that Australia was not the proper forum for the dispute to be litigated.
The High Court unanimously upheld Gutnick’s contention that the place of publication of the item should be determined in accordance with well?established defamation principles on this issue, that is, the place where online material is read or heard in a comprehensible form. Accordingly, the High Court found that publication of online material occurs at the point of download of information by end-users, not at the place of its upload. In so doing, Victoria was found to be a convenient forum in which Gutnick could litigate his defamation claim.
Protection for ISPs, and anonymous posters on the internet
Anyone involved in the process or chain of publication is potentially liable for the publication of defamatory material. In the newspaper setting, everyone from the corporate owner of the business, to the editor, down to the paperboy, is potentially within the defamation liability loop.
This applies equally to the internet context where an internet service provider or web host is potentially liable. However, it is likely that ISPs or web hosts will be able to bring themselves within the operation of the innocent dissemination defence that has been codified in the uniform defamation legislation which now applies across all Australian states and territories. The object of this defence is to protect newsagents, booksellers, librarians and ISPs who unwittingly publish defamatory matter without negligence on their part. In simple terms, entities which are mere conduits for the transmission or dissemination of defamatory material are likely to be able to rely on this defence and so escape liability.
A potential plaintiff who confronts difficulty in suing an ISP because of the innocent dissemination defence may also have to deal with the issue of the primary culprit having posted defamatory material anonymously. Anonymous posters may, for example, post material using fictitious usernames or false email details to avoid detection. An anonymous poster may hide behind a Hotmail or Gmail address that does not readily identify the user. In such cases, a potential plaintiff will have to uncover the identity of the anonymous poster before taking steps to enforce their rights.
Operators of internet forums generally require users to register as a member or subscriber and provide personal information for that purpose. The internet forum operator, or web host, will maintain records that evidence connection usage data by the user using the online forum or website. Such information may assist in the process of identifying the user who posts defamatory content to the forum, discussion thread or website.
The recent Supreme Court case of Moir & Datamotion v Gladman
In January 2010, Lavan Legal issued proceedings on behalf of IT company Datamotion Asia Pacific Limited (Datamotion), and its managing director, Mr Ron Moir in relation to defamatory material published about them on the internet forum HotCopper Australia (HotCopper). HotCopper is a forum in which online discussions take place in relation to companies whose securities are traded on the Australian Securities Exchange.
The defamatory material consisted of a serious of defamatory posts by an anonymous user in various HotCopper discussion threads about the company and Mr Moir.
Due to its privacy and confidentiality policy, HotCopper would not voluntarily disclose details it held in relation to the anonymous poster. The potential plaintiffs obtained court orders by consent against HotCopper’s owner which required disclosure of information about the anonymous poster under a pre?action discovery process (discussed in more detail below).
The information provided by HotCopper to Lavan Legal under the Supreme Court’s pre?action discovery orders started a train of inquiry which led to the uncovering of the anonymous poster’s identity, proceedings for defamation being issued against him and the case quickly being resolved. The defendant, eastern states based Graeme Gladman, agreed to resolve the defamation action by paying a fine of $30,000, providing apologies and giving undertakings not to repeat the defamatory publications.
Removal of online defamatory content is not always enough
The terms of use of websites and online discussion forums - such as HotCopper - generally include provisions prohibiting users engaging in certain conduct, including posting defamatory material. Although operators of such sites may act responsibly in response to defamation complaints by removing offending material, the damage has been done and often has a lingering effect.
Moderation of online content may not be enough for many people impacted by the publication of defamatory material.
Lavan Legal has shown in the Datamotion case that directors and small companies can pursue online defamers and obtain appropriate relief to help restore a hard?earned reputation.
Pre?action discovery to ascertain the description of a potential defendant – Order 26A(3) of the Rules of the Supreme Court of Western Australia
The rules of court in Western Australia include a process by which a person can apply for pre?action discovery against a person who is understood to be in possession of information that will assist the potential claimant identify another person against whom the potential claimant may have a cause of action.
This pre?action discovery process can be utilised by a person to obtain information from an intermediary – such as a website owner or online discussion forum operator – to obtain documents that contain information which may assist in ascertaining the identity of a person who has been posting defamatory material on the internet anonymously.
This process was successfully pursued in the Datamotion case.
Pursuing a defendant domiciled outside Australia
Situations may be encountered by a potential claimant where defamatory content is downloaded in Australia (and so published here) but the potential defendant responsible for posting the content, or the website host or online forum operator, is domiciled outside of Australia.
Such cases may provide additional layers of complexity, including jurisdictional issues concerning enforcement of orders and judgments in overseas jurisdictions, and potentially high costs, but the processes which are available – such as the pre?action discovery procedure used with the aim of identifying an anonymous poster of defamatory material – can still be pursued.
$80,000 awarded to Beecroft Primary School Principal
Another recent defamation case in the email context has seen a Sydney primary school principal awarded more than $80,000 in compensation.
The New South Wales Supreme Court in Ryan v Premachandran [2009] NSWSC 1186, awarded the sum in circumstances where a disgruntled parent sent an email defamatory of the principal to 14 parents who the defendant identified from a list of students in his daughter's Beecroft Primary School class.
The Court found that the defamatory email was motivated by the defendant’s perception that the principal was responsible for what the defendant claimed was inadequate teaching following his daughter’s poor performance in a selective school test. The Court also found that the email was aimed at forcing the principal to resign by discrediting and denigrating her before the 14 parents.
There was no evidence found to be capable of establishing the substantial truth of any of the imputations conveyed by the email that the principal was incompetent, dishonest, untrustworthy and not fit to hold office as principal. A defence of qualified privilege was also rejected on the basis that the defendant was not under any duty nor had any interest in publishing the email, nor did the 14 recipients have a relevant interest in knowing of defamatory statements relating to his personal concerns in support of his call for the principal’s resignation.
The award of damages took into account harm occasioned by what the court found was the malicious conduct of the defendant in publishing the email.
Maximum damages
The $80,000 damages award in the Ryan v Premachandran case while high, is well short of the current statutory maximum award of general (or non?economic) damages that may be made of $294,500. This statutory award is adjusted from time to time under the uniform defamation legislation.
The Court has a discretion to order the defendant to pay damages that exceed the statutory cap if satisfied that the circumstances of the publication warrant an award of aggravated damages.
A court may also award damages in respect of any economic loss found to have been suffered by reason of the publication of the defamatory material.
