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CyberDefamation. The Impact of the Uniform Defamation Laws. Agenda. Uniform defamation laws - key cyberdefamation issues: jurisdiction online intermediaries Intermediaries - previous Australian position Statutory innocent dissemination defence Position in other major jurisdictions.

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cyberdefamation

CyberDefamation

The Impact of the Uniform Defamation Laws

agenda
Agenda
  • Uniform defamation laws - key cyberdefamation issues:
    • jurisdiction
    • online intermediaries
  • Intermediaries - previous Australian position
  • Statutory innocent dissemination defence
  • Position in other major jurisdictions
uniform defamation laws
Uniform defamation laws
  • Previously fragmented by state/territory
  • Proposals to standardise
    • Federal proposals (March 2004)
    • State/territory model – SCAG
  • Defamation Act 2005 (NSW) (commenced 1 January 2006)
    • Now implemented in all states and territories
uniform defamation laws cont
Uniform defamation laws (cont)
  • Jurisdiction and choice of law in Australian defamation law
    • Dow Jones v Gutnick (2002 HCt)
    • Previous forum-shopping
    • Uniform Defamation Act position:
      • Multiple publications – closest connection test (s 11)
      • Statutory lis alibi pendens rule (s 23)
online intermediaries
Online intermediaries
  • Range of levels of “involvement” with publication
    • Mere “common carrier”
    • Host
    • Online publisher of anonymous content
      • Chat room operator
      • Review publisher
      • Blog publisher
    • Online newspaper/portal publishing third party content
online intermediaries cont
Online intermediaries (cont)
  • “Publication” in defamation law
    • Breadth of concept
    • Application in online context:
      • Common carrier: Bunt v Tilley (2006 UK HCt)
      • Frawley v State of NSW (2006 NSW S Ct)
online intermediaries cont1
Online intermediaries (cont)
  • Previous law – common law innocent dissemination defence
    • Three-part test:
      • Innocent of knowledge of defamatory nature of material
      • Nothing in material or circumstances which should have led defendant to suspect it contained a defamation
      • No negligence in dissemination
    • Thompson v ACTV (1996 – HCt)
online intermediaries cont2
Online intermediaries (cont)
  • Previous law:
    • Broadcasting Services Act 1992 (Cth) Schedule 5 clause 91
      • Law of state or territory has no effect if
        • subjects ISP or ICH to liability where not aware of the nature of the Internet content; or
        • requires ISP or ICH to monitor/make inquiries about or keep records of the Internet content
      • Effect on defamation liability?
      • Federal report (2004) accepts relevance
      • Defamation Act 2005 s 6(2): act does not affect the general law unless provides otherwise
statutory innocent dissemination
Statutory innocent dissemination
  • Defamation Act 2005 – s 32
    • Three-part test:
      • Defendant published matter merely in capacity of a “subordinate distributor”
      • Defendant neither knew, nor ought reasonably to have known, that the matter was defamatory
      • Defendant’s lack of knowledge was not due to negligence
statutory innocent dissemination cont
Statutory innocent dissemination (cont)
  • “Subordinate distributor”
    • Three-part test:
      • Not the “first or primary distributor”
      • Not the author or originator
      • Did not have the capacity to exercise editorial control over the matter before it was first published
statutory innocent dissemination cont1
Statutory innocent dissemination (cont)
  • “First or primary distributor”:
    • Will not be considered to be first or primary distributor merely because involved in capacity of:
      • Newsagent, librarian etc
      • Broadcaster of live programme where no effective control
      • Provider of services by means of which matter is made available in electronic form
      • Operator of communications system whereby matter is “made available by another person over whom…the provider has no effective control”
position in other jurisdictions
Position in other jurisdictions
  • US
    • Early cases (Cubby, Stratton Oakmont)
    • Communications Decency Act 1996 (US) s 230
position in other jurisdictions cont
Position in other jurisdictions (cont)
  • UK
    • Defamation Act 1996 (UK) s 1
    • Godfrey v Demon Internet (2001)