Legislation
The Hague Conference on Private International Law is in the process of drafting an international convention. At present the applicable laws are the common law or statute laws of the countries or states where material is downloaded.
Case History
Sean is a swimmer and a very good one of Olympic reputation. He is not only an Australian icon but an international one. He has attracted some notoriety in certain circles due to his alleged sexual preferences. He has at all times denied these allegations and largely the world press has respected his right to privacy. One international blog site has however persisted in making a continuing issue of Sean’s denials and has maintained a positive campaign in a clear attempt to convince its readership of legitimacy of its allegations of Sean’s sexuality. Although maintaining dignity and apparent composure it is arguable that such publication could damage Sean’s reputation before his colleagues, business associates, promoters and sponsors, leaving open a claim for damages in a defamation action.
What is defamation?
Defamation arises from published material that damages the reputation of an individual or an organisation. This covers material on the internet as well as radio broadcasts and telecasts. Even drama and fiction can be defamatory if they damage reputation. The only way to publish such material is via recognised legal defences such as justification, fair comment , opinion and privilege. (This area is very complex with many pitfalls and proper legal advice should be sought from competent practitioners).
Is there an action maintainable in defamation against a foreign website?
In short answer, there certainly is.
In 2002 the High Court of Australia delivered a seven judge unanimous decision (Gutnick v Dow Jones) which set a legal precedent around the world. In that case the court found that a Melbourne businessman was entitled to file a local libel suit against Dow Jones as publisher of the Wall Street Journal as a result of information that could be downloaded from Dow Jones’ New Jersey website. In other words the action could be brought in an Australian court. The decision has been followed by other courts. A UK court has found a UK boxing promoter could sue a boxer and his lawyer in a UK court for defamatory remarks published on two California based websites. In citing Gutnick’s case the UK court found there was no other test for jurisdiction other than where the article is downloaded. A similar ruling in Ontario found that the Washington post could be sued in virtually any court anywhere under the laws that apply in that jurisdiction for an allegedly defamatory story published only about the activities in Kenya of a UN official.
Does Sean have a right to sue and can this action be successfully defended ?
Assuming the fact that Sean will proceed in Australia which follows English rather than American precedent, the burden of proving truth and fair comment lies with author/publisher. The material published provides no proof of its allegation other than stating that Sean has been seen on several occasions with a certain person. A photograph of the two has been published on a blog. The photograph appears entirely innocent. There is little proof so far apparent upon which the website could rely on for the defence of truth. The website could rely on defence of opinion only which could be successful. It could even go to the extent of alleging it had taken a middle ground and effectively expressed no opinion at all. Given the frequency of publication, however, it is unlikely a court would find that submission would be accepted.
How can we help you?
This firm can provide up to date advice on defamation, libel and slander. It can correspond with the other parties to the issue in attempts to resolve the problem without the need for litigation. It can prepare court documentation, commence legal action and instruct competent barristers in the running of court based litigation. At all times, sympathy, privacy and confidentiality is assured.