Last Updated: 14 Jan 2006

“It is not reasonable to expect editors, producers and journalists to know and apply eight separate defamation laws in publishing newspapers and magazines circulating throughout Australia and in selecting material for transmission on national broadcasting and television programs.”

– Australian Law Reform Commission, 1979

Defamation laws have developed over several centuries to provide recourse for people whose reputation is or is likely to be harmed by publication of information about them.

In theory, the objective of defamation laws is to balance protection of individual reputation with freedom of expression. In practice, defamation laws are frequently used as a means of chilling speech. A threat of (costly) defamation proceedings and damages, whether or not a plaintiff’s claim is likely to be upheld by a court, is often used to silence criticism not only by a particular person or group but also as a threat to others.

Like almost all other laws to date, defamation is defined within jurisdictions that are based on geographical areas. The Internet is inherently trans-border in nature, with both push technologies like email and pull technologies like the web unconstrained and indeed unconstrainable by state or national borders. The cyberspace era presents challenges to longstanding laws far greater than did the broadcast media of radio and TV.

This document provides an introduction to defamation laws, focusing primarily on Australian civil defamation laws, and the applicability of those laws to material published via the Internet. For legal advice on particular defamation claims, EFA strongly suggests you consult a solicitor. Introductions to qualified legal advice may be provided by the Law Society in each State or Territory of Australia.

Contents


2006 Amendments to Australian Defamation Laws

In May 2005 it was announced that State and Territory Governments had finally reached agreement on enacting uniform defamation laws, and intended to do so by 1 January 2006, and that Federal Attorney General Philip Ruddock had told the States he would no longer insist on changes to their model code (Defamation goes national, Michael Pelly, Sydney Morning Herald, 20 May 2005).

On 25 October 2005, the Queensland Attorney General Linda Lavarch announced that a Bill (Defamation Bill 2005) to amend Queensland’s defamation laws, in accord with proposed uniform national laws, had been introduced into Parliament and was expected to become effective from 1 January 2006. In a media release titled Queensland Moves To Adopt National Uniform Defamation Laws the Queensland Attorney General stated that key features of the legislation include:

On 15 December 2005, the Federal Attorney General announced that all six States had enacted substantially uniform defamation laws.

EFA has not yet had sufficient time/resources available to undertake a detailed analysis of the new laws. However, our brief review of the Queensland Bill indicates the new laws are a major improvement on the previous situation.


Australian Defamation Laws pre 2006

Note: This section was originally written in 2002 and provides information about defamation laws prior to enactment of amended laws in late 2005 or 2006. EFA has not yet had sufficient time/resources to review the new laws and update this section. While some of the information below will continue to be relevant to the amended laws, some will not. For example, two significant differences are the establishment of a defence of “truth” to replace the previous defences of “truth and public benefit” or “truth and public interest” and preventing most business corporations from being able to sue for defamation.

Introduction

In Australia, there is no legislation dealing specifically with defamation on the Internet. Defamation laws are applicable to publications generally, rather than specifically to particular media. Hence, the laws applicable to offline material are also applicable, in principle, to online material. However, the courts are being called on to work out how existing principles are to be applied to new contexts.

The first reported trial concerning the application of defamation laws to online publications occurred in relation to posts on an Internet bulletin board in Western Australia in 1993 (Rindos v Hardwick).

Lack of uniformity in Australian jurisdictions’ defamation laws

Australian defamation laws are primarily State and Territory laws (not Federal) and the law, including available defences, was different in each jurisdiction until 2006. (Some Federal statutes include provisions relative to defamation of, or by, a narrow range of persons and in particular circumstances, but these are beyond the scope of this document.)

Attempts to establish national uniform defamation laws over the past 150 years had failed. In 1979, the Australian Law Reform Commission (ALRC) stated, in its report Unfair Publication: Defamation and Privacy:

“[Defamation laws] are partly contained in statutes, and partly in judge-made rules of common law. The laws are complex and conflict from one part of the country to another. It is not reasonable to expect editors, producers and journalists to know and apply eight separate defamation laws in publishing newspapers and magazines circulating throughout Australia and in selecting material for transmission on national broadcasting and television programs. In most jurisdictions the content of the law has been substantially unrevised this century. The law takes little account of changed social conditions, technological advances and the growth of national consciousness and national communication.”

The ALRC recommended in 1979 that uniform defamation laws applicable throughout Australia be enacted. Since 1979, some jurisdictions had amended their defamation laws, but uniformity had been no closer and generally speaking the laws remained obscure, complex and confusing.

On 17 April 1998 the Federal Attorney-General Daryl Williams issued a media release stating inter alia:

“It is disappointing that the States and Territories have again failed to agree to the introduction of uniform defamation laws in Australia. … The situation which exists now is that there are different defamation laws for each State and Territory. This archaic system is bad for the general community and for business in Australia. At the Standing Committee of Attorneys-General in Perth today, there has again been a failure to reach an agreed path to progress towards uniform defamation laws. While there is general support for uniformity, there is an unfortunate lack of willingness to act. …Today’s disappointing lack of will on the part of the States and Territories leaves the Commonwealth having to consider ways to minimise differences in laws around Australia.”

Until 2005, there had been little, if any, evidence publicly available to indicate that either the Commonwealth or the States/Territories had further considered the issue of uniformity since 1998.

However, as outlined under 2006 Amendments earlier herein, in 2005 the jurisdictions finally reached agreement.

Civil and Criminal Defamation

Australian laws include offence provisions for civil defamation and criminal defamation.

Civil liability arises from publications likely to harm a person’s reputation and penalties are monetary.

Criminal liability arises from publications that affect the community, such as those that have a tendency to endanger the public peace, and penalties in most jurisdictions include imprisonment. Generally, proceedings for criminal defamation are commenced by law enforcement authorities. (In most jurisdictions, a private prosecution concerning criminal defamation requires the prior consent of, for example, the Director of Public Prosecutions, the Attorney-General, or a court order.)

Criminal prosecution for defamation is rare in Australia. However, within the last decade (since 1990) people have been imprisoned in Australia for criminal defamation (the most recently notorious being former WA Liberal Premier, Ray O’Connor).

There are signficant differences between civil and criminal defamation law relative to liability, defences, etc. The remainder of this document addresses civil, not criminal, defamation laws.

What is a defamatory publication?

The definition of “defamatory matter” varies among Australian jurisdictions. In some jurisdictions common law definitions apply, while in others (e.g. Queensland and Tasmania) the definition has been codified.

Very generally speaking, material that could be found to be defamatory includes that which has the tendency to lower the person in the estimation of others, or that would tend to result in the person being shunned or avoided or that is likely to expose the person to hatred, contempt or ridicule (trivial ridicule or good natured humour is less likely to be problematic than derisory ridicule).

In its 1996 report on defamation law, the A.C.T. Community Law Reform Committee outlined defamation as follows:

“Defamation is the publication of words or images to a person that damages the reputation of another [‘slander’ if spoken words, ‘libel’ if written words or images]. A defamatory statement is one that is likely to cause ordinary, reasonable people to think less of the person about whom the words or images are published. An inference that casts a defamatory imputation is enough to bring an action. The following are examples of defamation:

  • An imputation which may tend to cause a person to be hated or despised, or cause them to be treated with contempt by their peers;
  • The publication of material that renders a person to ridicule, even if involving humour. The publication of a photograph that contained an optical illusion giving the appearance that someone was guilty of indecent exposure is defamatory;
  • Certain caricatures have been held to be defamatory. Determining what is defamatory is notoriously difficult in these matters. The distinction between artistic freedom and defamation will no doubt remain the subject of litigation.”

For a defamation action to be successful, it must be established that the communication:

Who can sue?

In theory, any individual or entity who considers damage to their reputation has or is likely to occur, as a result of material published, may sue the publisher/s of the material.

In practice, the laws are inaccessible to ordinary individuals who are defamed due to the exhorbitant legal costs involved in bringing a defamation action.

Australia’s defamation laws are often used by politicians and corporations who consider the media, individuals or community groups have defamed them in publishing information critical of their activities.

Who is able to be sued and liable?

Defamation action may be brought, not only against the original publisher (writer/speaker), but also against anyone who takes part in the publication or re-publication of the material. Furthermore, re-publication by someone other than the original writer may result in an action against the original writer as well as the re-publisher.

In relation to defamatory material published on the Internet:

However, the fact that a person can be sued does not necessarily mean they would be found liable by a court. There are numerous aspects relevant to liability. Addressing all of these is beyond the scope of this document. As one example, the liability of the original publisher for re-publication by someone else depends on matters such as whether the original publisher authorised or intended the re-publication, whether the re-publisher was under a duty to repeat the statement, and/or whether the re-publication is the “natural or probable” result of the original statement.

There are many circumstances in which persons who can be sued receive credible threats of defamation proceedings against them, but some are pure bluff, and some fall at the first hurdle. For example, some threats are dropped when it becomes apparent that the respondant is aware that they have a legitimate defence, or there is risk of a counter-claim such as ‘abuse of process’, etc. In any case, ultimately only the court can determine whether any one or other respondent is liable.

What defences are available?

Defences that may be successfully pleaded in relation to a defamation action vary throughout Australian jurisdictions. Depending on the jurisdiction, these may include:

The circumstances in which the above defences may be applicable varies among Australian jurisdictions. For example, truth alone is not a defence in all jurisdictions. In some, the defendant must also prove that the publication of a true statement or imputation was made for the ‘public benefit’ (Queensland, Tasmania, A.C.T.) or relates to a matter of ‘public interest’ (NSW).

In addition to defences available under State and Territory laws, the High Court has determined that the Australian Constitution provides protection for some types of communications for political purposes. Such protection overrides the provisions of State/Territory defamation laws.

Defences available to Internet Service Providers/Content Hosts

Clause 91(1) of the Broadcasting Services Act (C’wlth)

The Broadcasting Services Act (C’wlth) (“the BSA”) provides a statutory defence to an ISP/ICH who carries/hosts Internet content in Australia and who was not aware that they were carrying/hosting a defamatory publication.

Clause 91(1) of Schedule 5 to the BSA provides that a law of a State or Territory, or a rule of common law or equity, has no effect to the extent to which it:

(i) subjects, or would have the effect (whether direct or indirect) of subjecting, an internet content host/internet service provider to liability (whether criminal or civil) in respect of hosting/carrying particular internet content in a case where the host/provider was not aware of the nature of the internet content; or (ii) requires, or would have the effect (whether direct or indirect) of requiring, an internet content host/internet service provider to monitor, make inquiries about, or keep records of, internet content hosted/carried by the host/provider.

The definition of “internet content” in the BSA excludes “ordinary electronic mail”, information that is transmitted in the form of a broadcasting service and information that is not “kept on a data storage device”. Hence, the Clause 91 defence will not be available in cases involving such material. In these cases, ISPs/ICHs may be able to rely on the defence of innocent dissemination (see below).

As at 7 January 2002, to EFA’s knowledge, there had not been any court decisions involving use of the Clause 91 defence. (The defence may be considered in a case pending in the NSW Supreme Court Murphy v Stockhouse Media Pty Ltd & Ors, SC 20652 of 2000, which involves postings on an Internet bulletin board.)

Innocent Dissemination

The common law defence of innocent dissemination has historically applied to re-distributors such as newsagents, booksellers, libraries, etc. An ISP or ICH may also be able to rely on the common law defence of innocent dissemination in circumstances where they did not know that the publication was defamatory or likely to contain defamatory matter and their absence of knowledge was not due to negligence on their part.

Whether the common law defence of innocent dissemination can be relied upon by ISPs/ICHs has not yet been determined by Australian courts.

The 1996 High Court decision in Thompson v Australian Capital Television Pty Ltd suggested the defence may apply to “mere distributors of electronic material”. However, this may depend on whether courts determine that an ISP/ICH’s part in publishing Internet content created by other persons is the same as that of a television station that broadcasts television programs created by others. Television stations broadcast a limited number of programs per day at selected times and according to the decision in Thompson v Australian Capital Television Pty Ltd are expected to check the content prior to broadcast. However, requiring ISPs/ICHs to check the content of thousands, in some cases millions, of items published via their systems each day without their specific knowledge is a significantly different matter.


Which jurisdiction’s law applies?

Defamation action under Australian law may be commenced in any State or Territory in which the allegedly defamatory material was published.

However, there are other factors relevant to where a final decision on a particular case will be made.

A uniform scheme of cross-vesting jurisdiction was enacted by the Commonwealth and the States/Territories in 1987. Under this scheme, an action commenced in the Supreme Court of one State/Territory can be transferred by the court to another jurisdiction’s court when such a transfer would be “in the interests of justice”.

Furthermore, a publisher may have grounds to make an application to the court to stay the proceedings on the basis of “forum non-conveniens”. This involves showing that the jurisdiction in which the proceedings have been been instituted is “clearly inappropriate”. To show this in an Australian court, the defendant must “satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious” to the defendant (Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197).

In relation to material published on the Internet, there have been few Australian court decisions to date addressing where or when material made available via the Internet is “published”. Hence, a plaintiff may choose to commence a defamation action in the State or Territory with laws most favourable to the plaintiff’s case, that is, irrespective of the location of the server/system used to make the material accessible or the location of the defendant/s or plaintiff. (However, the outcome of the action could be decided in a different jurisdiction as outlined above).

Moreover, as defamation laws in other countries (as well as in Australia) enable a defamation action to be brought under their laws if material was published in their jurisdiction, persons who publish/distribute material on the Internet may find themselves facing defamation action under the laws of a country other than their country of residence.


Info Sheets on minimising risks & dealing with threats


Australian Cases involving the Internet

(This section does not attempt to list all cases and those listed below are not necessarily finalised. Some, for example, the Gutnick v Dow Jones case, may not be finalised for several years.)

See also links to articles discussing the above and other Australian cases.


Law Reform Commission Inquiries and Reports


Defamation laws in other countries

This section provides a brief overview of some other countries’ laws as at December 2001. It does not cover any changes that may have been made to the laws since that date.

USA Defamation Laws and the First Amendment

From time to time, it is claimed that the USA First Amendment protects the speech of Americans to the extent that they can say anything they wish about another person without risk of a successful defamation action against them. However, the First Amendment does not protect all speech, for example, there is no constitutional protection for false statements of fact.

Defamation laws in the USA are significantly less restrictive of speech than the laws of most (probably all) other countries because the US First Amendment provides strong protection for freedom of speech. The rules governing when defamatory speech is actionable have been developed by the US Supreme Court primarily since 1964 (the New York Times Co. v. Sullivan case) and are complex.

In order for a statement to be defamatory under US laws it must be false (and how much of it is false is a relevant aspect). Whether a defamation action can succeed also depends on whether the speech is a statement of fact or an opinion (there are rules concerning what is an “opinion”). Generally speaking, pure opinions are protected, while factual assertions or opinions which imply an assertion of objective fact are actionable (Milkovich v. Lorain Journal Co., (1990)). There are also other factors relevant to when defamatory speech is actionable, including whether it is about a public or private figure and/or about a matter of public concern, etc.

To recover actual damages in a defamation action, a plaintiff is required to prove some degree of fault, at least negligence. (The Supreme Court has ruled that the First Amendment prevents the imposition of liability without fault). Different standards of liability apply depending on whether the plaintiff is a private individual, or a public official or a public figure. Briefly:

For more detailed information about US defamation laws and constitutional restrictions, see Basic Elements of Defamation Law by Greg Abbott, Attorney-At-Law, St Paul/Minneapolis.

A number of examples of USA defamation cases are summarised in Perkins Coie LLP’s Internet Defamation Case Digests.

ISP/ICH liability

USA

Section 230 of the USA Communications Decency Act 1996 (“the CDA”), often referred to as the “Good Samaritan” clause, immunises interactive computer service providers from liability as a publisher. (Although other parts of the CDA were struck down by the US Supreme Court, S230 was not). The relevant portion of S230 states:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

In the first case testing this provision, Zeran v America Online Inc (1997) the U.S. 4th Circuit Court of Appeals stated:

“By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.”

UK

The UK Defamation Act 1996 was intended, among other things, to clarify the defence of innocent dissemination for Internet service providers. Such provisions are contained in Section 1(1) and 1(3) of the Act:

1(1) In defamation proceedings a person has a defence if he shows that-
(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
… 1(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved-

(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;

(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.

The usefulness of these provisions appears questionable. As Lilian Edwards comments in Defamation and the Internet: Name Calling in Cyberspace:

“It is clear that section 1(3)(e) was intended by Parliament to be the umbrella under which ISPs could shelter themselves from liability. But this sub-section is problematic in that it seems to require, in a style rather reminiscent of the Prodigy decision, that to get the benefit of the s 1(1) defence, the ISP must only provide Internet access, and not do anything else – not, for example, exercise editorial control or spot-check content – for if they do, it would seem they will be exercising “effective control” over the maker of the defamatory statement. Yet it seems unlikely that an ISP which neither monitors nor edits can succeed in proving, as s 1(1)(b) requires, that it took “reasonable care” to prevent the publication of the defamatory statement. There is thus an inherent catch 22.”


Other Resources