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    Say No Evil - Defamation in Cyberspace

    Author: Simpson Grierson       

    How defamation law applies to the Internet has been in the spotlight around the world in recent years. With defamation laws varying from country to country, a New Zealand judgement on Internet defamation has been long awaited. Some questions have been answered by the recent reserved judgement of Judge Ross in the Patrick O'Brien defamation case.

    Cyberspace Offers No Immunity
    The case confirms that, in New Zealand, defamation law applies to cyberspace. The District Court found that ISP ("Internet Service Provider") director Alan Brown had defamed Patrick O'Brien and awarded damages of $42,000 to Patrick O'Brien. Patrick O'Brien filed the lawsuit against Alan Brown on the basis of alleged defamatory comments posted by Alan Brown on the ISOCNZ ("Internet Society of New Zealand")bulletin board (which was also available to any Internet user). In addition, the posted comments were automatically sent by e-mail to all members of ISOCNZ (about 170 in total at that time).

    Alan Brown admitted publication via a bulletin board and e-mail, so the Court did not need to consider whether such publication counted as "publication" (communication to a third party) for the purposes of defamation law. However, Judge Ross did comment that, while the issue of Internet publication has not been canvassed in New Zealand,
    "there can be no question that publication on the Internet counts as publication for defamation purposes". Issues of ISP liability for publication and dissemination did not arise in this case (as the ISP was not sued). However, the Court recognised that this would be an important issue.

    The question for the Court to decide was whether the statements made by Alan Brown were defamatory. Alan Brown claimed the defences of truth, honest opinion, and qualified privilege.

    Significant Findings
    The following findings of Judge Ross are particularly significant to Internet users:
    - The Internet is not a forum where there is immunity from defamation claims. Judge Ross said Alan Brown was "grossly mistaken" if he believed that use of Internet communications gave him greater freedom of expression than other forms of publication.
    - Publication on the Internet was one factor that justified a higher award of general damages ($30,000). The defamatory statements were published on
    "a site where the comments were far more likely to be seen by the plaintiff's colleagues and customers, with World Wide Web accessibility giving potentially infinite circulation".
    - Additional punitive damages of $12,000 were awarded based on what the Court described as Alan Brown's "contemptuous disregard" and "reckless audacity" towards Patrick O'Brien. Other factors which contributed to the award of punitive damages were; further postings that were critical of Patrick O'Brien and making Patrick O'Brien's solicitor's correspondence and the Statement of Claim available on the Internet.

    References to Defamatory Material Also Caught
    While it is significant, the O'Brien case was not the first New Zealand case to consider Internet related defamation issues. In the case of International Telephone Link Pty Ltd v IDG Communications Ltd (1998) the High Court considered that references in print article to a web site containing defamatory material could constitute re-publication of the defamatory material contained in the web site. A hyperlink to defamatory material could also constitute re-publication.

    Downloading is Publication
    In a recent Australian case, the Supreme Court of Victoria confirmed the century old principle that "publication" for defamation purposes takes place where the contents of the publication are seen or heard and comprehended by the reader or hearer.

    The alleged defamatory article was written in New York and stored on web-servers in New Jersey. It was downloadable in Australia and elsewhere by subscribers to Dow Jones' Wall Street Journal online service available through Several hundred of the 1,700 Australian subscribers were Victorian. As a resident of Victoria, Joseph Gutnick chose to sue in Victoria. He undertook not to sue Dow Jones in any other jurisdiction on the same issues.

    Dow Jones applied to stay the proceeding, arguing that the case should be heard in New York/New Jersey as Internet publication took place when the article was uploaded from the server in New Jersey. Dow Jones also argued that the downloading of the article in Victoria was the result of a user's independent actions (a click by the user) for which Dow Jones could not be held responsible.

    Justice Hedigan was not convinced by Dow Jones' attempts to rely on
    "the claims of scientific experts" and "the trumpeting of cyberspace miracles" to assert that established defamation law principles should be abandoned in this case.

    Justice Hedigan found that information is released (by the server) and received (by the user) almost instantaneously and the attempt to separate them for the law's purpose is a fallacy. "The fact that the relevant web-server responds to a request does not produce the result that the publication takes place only in the place where the request is received."

    Watch This Space
    While this issue has not been canvassed in New Zealand, the New Zealand Courts are unlikely to decide differently. In New Zealand we also await a decision or legislation which addresses whether ISP's would be liable for publication and dissemination of defamatory material posted by their subscribers. In the 1999 United Kingdom case Godfrey v Demon Internet Ltd the Court found that Demon could be liable for publishing a defamatory statement posted by a subscriber to Demon's newsgroup.
    Demon was unable to rely on the "innocent dissemination" defence which is available in certain circumstances to commercial publishers such as newspapers, printers, and the like, as Demon had not removed the defamatory posting from its server when notified by Godfrey. In the meantime, New Zealand ISP's need to take heed of any requests for removal of allegedly defamatory material from their servers.

    This is a general summary only and should not be taken as a substitute for specific advice.

    x-tech group Simpson Grierson Web site: x-tech group Simpson Grierson

    Earl Gray, Partner,
    Michael Sage, Partner,
    Jan Kelly, Partner,
    Tracey Walker, Partner,
    Lianne Young, Senior Associate,

    October 2001

    October, 2001
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