Defamation and the internet

Abstract

The Internet is a unique and revolutionary medium of communication. The objective of this dissertation is to identify whether there are areas in which reform of the rules of Australian civil defamation law needs to be undertaken to meet the challenges posed by this new medium and, if so, to advocate desirable reforms.

The methodology by which the dissertation sets out to achieve its objective is a systematic analysis of how the defamation cause of action, defences and remedies, as well as relevant jurisdiction and choice of law rules, apply, or are likely to apply, to material published via the Internet.

It is possible to distil five features of communication via the Internet which are of relevance to the operation of the rules of civil defamation law:

- Internet communications do not respect geographical boundaries: they involve the transfer of signals from computers in indeterminate locations, to other computers in indeterminate locations, via routes which are indeterminate;

- intermediaries, in the form of Internet service providers and network operators, play a central role in all Internet communications;

- material published via the Internet can be republished to a wide and geographically diverse audience more easily than material published via other means;

- material on the Internet is organised through the use of hyperlinks which blur the distinction between where one publication ends and the next begins;

- the Internet can be used in a wide variety of ways, to resemble almost any other medium, including the telephone, the postal service, radio, television, newspapers or libraries.

Once the way in which the Internet works and is used is understood, it is possible to predict how most of the rules of defamation law would apply to material published via the Internet. The outcome of the research undertaken in this dissertation is that most of those rules are capable of being applied without the need for reform.

In other areas, however, the existing rules give rise to uncertainty, or undesirable outcomes, when applied to Internet publications. In those areas, reform is desirable. Ultimately, four areas of reform of the existing rules of defamation law are identified, and desirable reforms suggested:

1 Reform to clarify whether different types of Internet publication are libel or slander.

2 Reform to ensure that intermediaries of Internet publications are only liable for civil defamation where their conduct is sufficiently culpable to warrant the attribution of liability.

3 Expansion of the remedies available in civil defamation law to provide successful plaintiffs with more effective means of vindicating their reputations where they have been damaged by defamatory Internet publications.

4 Reform of the choice of law rules applicable to intra-Australian publications, by adoption of a rule that substantive rights and liabilities are determined by applying solely the law of the place (or places) of publication, regardless of the place in which proceedings are brought and determined.