Application of Defamation Laws in New Media
The defamation laws in Australia used to vary from one state to another until even 2006 but this lack of uniformity has been worked upon with the introduction of UDA which has brought together the state and territory governments on defamation laws into an agreement. But in Australia, there is still no particular legislation in place to deal with defamation issues of the new internet media. In general, the defamations laws are applied to publications including print and electronic media. The defamation laws aim to serve two purposes; 1) to protect the reputation of organizations and individuals subjected to slandering and 2) to protect the freedom of expression. Just as USA gives more primacy to freedom of expression over any other fundamental right, Australia too has provisions to reduce and prevent restrictions on freedom of speech. In last one decade after the boom of internet technologies, there have been a lot of defamation charges brought into Australian courts in connection with spiteful emails, websites and publications on both traditional and the new media. But in the absence of any concrete defamation laws particularly meant for internet media, there are a lot of challenges surfacing in the application of the traditional defamation laws in solving disputes online. This paper has discussed in depth these challenges related to determining jurisdiction, place of publication and freedom of expression in references to the cases of Dow Jones v Gutnick and Cullen v White.
Under the traditional concept of jurisdictions, any law, defamation or otherwise, is formulated for a defined group of people staying in a particular territory and therefore, laws and regulations are reliant on where one is located. In the past, the impact of a defamatory statement was limited within a specific segment of audience such as the readers of a local newspaper or viewers of a particular local TV broadcast and therefore, the defamation actions were restricted within the boundary of a local jurisdiction (Dare, 2004). But the evolution of internet technologies has enabled people and publishers to reach out to a larger segment of audience with the help of emails, chat windows, social media, electronic journals and web pages. With every piece of news becoming instantaneously available in the internet world, needless to say, defamatory statements and publications can spread across quickly, like wildfire, in a minute but the question remains that under whose jurisdiction the defamation laws will be applicable. Since internet is an open virtual world, in times of defamatory publication the most difficult issue is to determine courts of which country and places should have jurisdiction and claim in the matter. Dow Jones & Company Inc. v Gutnick was a landmark case that brought into picture the need of determining the place of publication and what jurisdiction laws would be applicable for online publication.
Joseph Gutnick, a well-known businessman brought defamation charges against Dow Jones & Co Inc. in the Supreme Court of Victoria for an online defamatory article published in Barron’s Online in 2000. The article titled 'Unholy Gains' made a slew of imputations harming the image of Gutnick. Majority of the subscribers to Barron’s Online were based in USA but at least 300 subscribers were estimated to be in Victoria. The conflicting point hovered around the issue of how to determine the place of publication and whether the litigation could be pursued in the courts of Victoria where the defamations laws were more stringent than that of USA (Rolph, 2010). Gutnick presented the argument that the place of publication should be determined on the basis of where the article was received and read by people in Victoria but Dow Jones argued that the place of publication should be the place where the servers are located and where the publication was first made online and that is in this case was New Jersey. Furthermore, Dow Jones argued that the article published was lawful at the time when it was uploaded online in the USA and therefore, any attempt of enforcing local jurisdiction by an Australian court would prevent the internet from being a medium of transnational discussion. This brought to the fore another point which competes with defamation laws and that is the freedom of expression.
The freedom of expression though politically implied into the constitution is not fundamentally protected by the constitution of Australia unlike USA where the freedom of speech is the fundamental right constitutionally protected by the US Constitution. Since internet pioneers like Barlow and EEF or the Electronic Frontier Foundation promote freedom of speech on the internet actively, demonstrating their opposition to any legislative regulation proposed by the government and since internet has its origin set in the US which supports and protects freedom of expression constitutionally, internet has become a forum saturated with First Amendment principles and therefore, it has become increasingly difficult to solve an online dispute through the help of traditional defamation laws. Another defamation case Cullen v White brings out the drawbacks and challenges of applying traditional defamation laws to solve problems in the new media.
Bill White who was an American lecturer at the Divine Word University in Madang, Papua New Guinea was dismissed after one semester and in order to take vengeance he started a spiteful campaign targeting the university, its staff, supporters and volunteers. He registered in many websites often using the name of the victims and started sending a deluge of defamatory faxes and emails vilifying a wide range of organizations and individuals. When Dr. Cullen who served in the same university with White saw some abusive messages in a forum, he wrote a mail urging the web maestro to take some action on the postings. But the website leaked that mail of Dr. Cullen in a public forum and within two days White started a defamatory campaign against him by creating a website in his name with a barrage of imputations hurled at him. After being harassed for years Dr. Cullen then residing in Australia approached the Federal police but the Federal Police were unable to take any action due to the absence of any law against cyber stalking and the fact that the culprit stayed in USA beyond the jurisdiction of Australian law. Due to the importance given to freedom of expression in the US, any attempt to remove White's sites failed because the US Communications Decency Act gives protections to ISPs from any liability and hence some ISPs removed White's sites upon complaints and some didn't. Finally Dr. Cullen filed a lawsuit in Australian Supreme Court which in recognition of his suffering and distress awarded him compensatory damages but the action could not leave White deterred as he opened new websites making fresh attacks of Dr. Cullen and his lawyer and ridiculing the legal proceedings of Australia. There are many critics like Brian Martin who believe defamation laws hinder freedom of speech and expression and therefore, in order to fight libels more writing and speech are required and this is what Dr. Cullen has fallen back upon to save his reputation by making his own webpage to rebut White's claims.
In conclusion, over the last one decade there have been a lot of court cases going on upon the charges of online defamation across the country of Australia and it is seen that the traditional defamation laws are not fruitful while solving online disputes because of many challenges faced in terms of determining the jurisdiction of courts, place of publication and freedom of expression. In both the cases of Dow Jones & Company Inc. v Gutnick and Cullen v White, we see the difficulties and legal complexities to fight an online defamation incident with the help of traditional defamation laws. In consideration of the suffering endured by the victims of defamation, it is necessary to impose some sort of restrictions on people trying to malign someone’s reputation by disseminating false information or else the internet world will soon be dominated by unethical mudslingers.
Works Cited
Dare, Julie. 2004. Online Defamation: A Case Study in Competing Rights, School of Communications and Multimedia, Edith Cowan University, Viewed on 25th July 2013 <http://wwwmcc.murdoch.edu.au/cfel/docs/Julie_Dare_FV.pdf>
Rolph, David. 2010. Publication, Innocent Dissemination and the Internet after Dow Jones & Co Inc. v Gutnick, UNSW Law Journal, Viewed on 25th July 2013 <http://ssrn.com/abstract=1699027>
Australian Defamation Law, Viewed on 25th July 2013 < http://www.hrcr.org/safrica/expression/defamation.html>
Defamation in Australia, The News Manual, Viewed on 25th July 2013 <http://www.thenewsmanual.net/Resources/medialaw_in_australia_02.html>
Defamation Laws & the Internet, Electronic Frontiers Australia (EFA). 2006. Viewed on 25th July 2013 <https://www.efa.org.au/Issues/Censor/defamation.html>
Humphries, Tim. 2011. Political Leprosy, Viewed on 25th July 2013 <http://www.menzieshouse.com.au/2011/11/tim-humphries-examines-the-legal-framework-surrounding-free-speech-defamation-and-a-bill-of-rights-youve-heard-the-mantra.html>
Martin, Brian. 1996. Defamation law and free speech, Viewed on 25th July 2013 <http://www.uow.edu.au/~bmartin/dissent/documents/defamation.html>
Chitsa, Sarudzai. 2011. Name Calling On The Internet: The Problems Faced by Victims of Defamatory Content in Cyberspace, Viewed on 25th July 2013 <http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1077&context=lps_clacp>
