[ Edit: it appears that the Court struck out a preliminary motion to close down the site and rejected the original claim. The Plaintiffs seem to have indicated that they will re-file the claim. ]

The good news is that yesterday, the Supreme Court struck out the ($42M) defamation suit against the operator of ZGeek.

While we're very thankful that this defamation action went no further, the fact that it got as far as it did shows a serious problem with a lack of certainty in Australian law. The non-profit website operator had to expend significant funds donated by the site's members in order to defend the action, and is now saying that the organisation will no longer be able to operate in Australia, given the stress and risk of further legal action:

But now, some even worse news. ZGeek is abandoning Australia. ZGeek as a company has been shut down and any future of the site conducting business in Australia is just not going to happen until the laws change as they offer no protection for internet content hosts based in Australia. Basically, if you allow comment on your website and you live here, you are open for the same troubles as I am having. Even if your site is hosted OS. Got your own blog? Be very worried. Even after we complied with their lawyers demands they are still coming after me and the Broadcasting Act allows them.

Unfortunately, this lack of certainty is a recurring theme in Australian internet laws. Our copyright laws are unclear enough that companies like iiNet are exposed to risky litigation because the movie industry alleges that some of its customers infringed copyright and that iiNet has an obligation to disconnect subscribers based upon unsubstantiated allegations of infringement. The safe harbours are complicated and their scope is unclear. Our defamation laws provide only partial and uncertain protection for website operators, as this case demonstrates. Our censorship laws hold Australian hosts who even link to potentially prohibited material liable for fines of up to $11,000 a day. This level of uncertainty and risk is driving business off-shore and harming our competitive advantage, not to mention the ability of Australians to express themselves online.

16 comments

  1. Actually the case is still progressing, yesterday's hearing was an motion to close the site. Which was happily quashed however as far as I've heard as a member of the site the defamation case is still going.

    Comment by Twitch on 15 July 2009 at 21:49
  2. Thanks Twitch - I'll edit the post. I'm stick looking for a bit more confirmation - the forum thread seems to suggest that the defamation proceeding was struck out: "The request to have ZGeek closed was denied and the summons for the 17th of August", but it's not really clear.

    Comment by Nic on 15 July 2009 at 22:13
  3. ZGeek should simply move its servers out of Australia, that would prevent them from being close down by an Australian court. If the SERVERS are not in Australia, then they are NOT SUBEJCT to Australian laws.

    Comment by Jimmy Ribbit on 15 July 2009 at 22:45
  4. Zgeek is wrong about sites hosted offsore. If a site is hosted, say, in the United States, then the content becomes subject UNITTED STATES law. Contrary to what Zgeek might think, a server that is hosted in the United States would be NOT SUBJECT to Australian law, case closed.

    Comment by Jimmy Ribbit on 15 July 2009 at 22:49
  5. Sorry Jimmy, but that's absolutely false. Because the people who run the site are still in Australia, they are still exposed to Australian law.

    Comment by Nic on 15 July 2009 at 22:51
  6. All current proceedings were struck out. The claimant has been told to re-file (properly this time) if he wishes to proceed.

    Comment by Gabriel Buckley on 16 July 2009 at 01:35
  7. Excellent, didn't see that update

    Comment by Twitch on 16 July 2009 at 02:09
  8. IANAL, but I do know that there are major and essential differences between TV Law and Australian Law. Australian law also includes, by precedence, much British case law.

    First some background;
    Under TV law (i.e US Federal and most US State law), an act of Libel occurs occurs once, at the home or registered office of the person or corporation who published the Libel. Short, simple, sweet.

    For Australian law, I refer you to Duke of Brunswick v Harmer [1849]. This is the original source of the principle that a single publication is sufficient to be actionable for Libel in the UK (and therefore Australia and many other Commonwealth countries).

    Now, how does this apply to zgeeks ?
    The Duke of Brunswick v Harmer principle was followed, in the Australian State of Victoria, in Gutnik v Dow Jones [2002] HCA 56, essentially extending the original principle so that not just each print copy sold, but also each internet hit constituted a publication, and therefore a possible Libel.

    However as a corollary, we now have the situation that a Libel, if proven, would occur not just when a web site is read, but WHEREVER that website is read. In fact this IS the interpretation that has apparently been adopted by most Commonwealth jurisdictions.

    What this means is that regardless of wherever zgeek host their sites OR them registered offices, they can be sued for Libel in Australia, and any other nation of the Commonwealth.

    Comment by martin english on 16 July 2009 at 05:59
  9. Hi Greg,
    I'm not sure what you're saying. Has an Australian court determined that a US located site contain Libelous material ? FWIW, Gutnick v Dow Jones was exactly that. The chances of getting enforced depend very much on what Australian presence the defendant has, AND what efforts they are willing to go to.

    An example is where you and I reside in Australia and one of us is found to have Libeled the other, under Australian law via a server located ANYWHERE. The plaintiff has a very large chance of receiving the damages awarded, and / or having a take down notice enforced, because of the physical proximity of the defendant to the court in question. Compare this to a situation where a US resident is deemed to have Libeled me (an Australian resident) via a US based Server. I believe you're suggesting (and I would agree) that I would have little chance of getting the orders of an Australian court enforced, certainly in a civil case.

    But what if the situation is reversed ? In other words, I am defending myself against a take-down notice (or worse) from a US based organization. I know it's not quite a random choice :), but lets say its the RIAA. Their legal right to enforce such things as Anton Pillar orders (sp ?) on Australian premises is pretty much enshrined in the U.S.-Australia Free Trade Agreement of 2004.

    In other words, regardless of the location of your servers, if you are in Australia, then you are bound by the terms of the FTA. And the Australian courts have and will enforce it wherever and whenever they are called upon to do so.

    Comment by martin english on 17 July 2009 at 01:44
  10. FWIW, a link to an analysis of Gutnick V Dow Jones - http://www.murdoch.edu.au/elaw/issues/v11n3/beyer...

    Comment by martin english on 17 July 2009 at 01:45
  11. i'm a bit of a newbie to all this but i see all kinds of accusations like 'is going to sue', 'has sued', 'has issued a writ' etc.

    I guess that the plaintiff goes to the court, pays a fee, lodges documents outlaying his complaint and then serves notice on the other party to appear on the date the court aranges.

    what actually is the writ is that the documents lodged at the court or the documents lodged on the party being sued.

    Did a quick net search and didn't find the exact answer.

    The pieces on screenhub / smh are pretty general

    Comment by daniel atkins on 17 July 2009 at 01:54
  12. As much as I hate to say it, Martin English has hit the nail right on the head!

    Unfortunately, defamation does not occur in the jurisdiction it is produced, it occurs in the jurisdiction it is read, heard or viewed. This means that having off shored servers would not protect operators from litigation.

    I think the real crux of it is - Is the operator responsible for the postings of its members?

    The Tort of Defamation has to be one of the messiest areas of law, and I really hope that Tony dodges this bullet, but the only real solution is for our Government to recognise that this is the 21'st century and to legislate some protection for our online operators.

    Comment by Ben on 17 July 2009 at 02:30
  13. Hi Greg, yes we are going back to court on the 28th of August.

    Comment by Tony on 23 July 2009 at 17:34
  14. I know Greg Smith personally and this entire lawsuit is one more weird attempt to gain attention for himself. In the past he has come up with most outlandish stories without any real credible evidence to support them.

    His reputation has not been damaged by comments on zgeek.com and any one who knows Greg would understand that no serious financial backers would dare spend money on his projects. In fact, everything I have seen from All Pieces Media has been poorly produced with no substance to them at all.

    Jonathan Nolan is far from an acclaimed director and there is so little information on his achievements, outside his own boasts on his website and by Greg Smith, that I can't see any court taking him with any seriousness at all. The simple fact that these two individuals are suing for $42.5 million odd dollars in damages is even more hilarious.

    As far as I know, Jonathan Nolan lives in Canberra and has only managed to produce poor quality short films (Fortunate Suns, Sweet Cyanide) and Greg Smith lives in Sydney with no prospects other than making trouble for zgeek.com.

    Really, they have no reputation to damage. They should be suing themselves. No one with any sense would offer these two "film-makers" any serious money, based on the films they have produced so far.

    More than likely, the "European Backers", if they even existed, simply figured out how bad these guys were and walked off. If you visit the All Pieces Media website, alarm bells should ring for anyone. If you watched any of their films, sirens would be ringing.

    I am sorry to hear the guys at zgeek.com have been harrasssed by these two and I wish Tony all the best in court. I am pretty sure this won't go much further or all sanity has been taken out of courts in this country.

    Comment by Yves on 6 August 2009 at 03:20
  15. Jonathon Nolan is an ex-lawyer and probably thought he stod a chance of getting something out of harassing zgeek.com

    Comment by Tess on 12 November 2009 at 01:11
  16. Ok Gabriella, I'm closing this thread, take this argument elsewhere.

    Comment by Nic on 4 January 2010 at 01:04