Arnold-Moore, Timothy --- "Legal Pitfalls in Cyberspace: Defamation on Computer Networks" [1994] JlLawInfoSci 12; (1994) 5(2) Journal of Law, Information and Science 165
[#] An electronic version can be found on the World Wide Web at http://www.kbs.citri.edu.au/law/defame.html
[*] LL.B.(Melb.) B.Sc.(Hons)(Melb.). L.Mus.A.(AMEB). Studying to complete a Ph.D. in Computer Science from RMIT, Melbourne at the Collaborative Information Technology Research Institute. email: tja@kbs.citri.edu.au
[1] Gibson, W, Neuromancer (1984).
[2] Branscomb, A W 'Common law for the electronic frontier' [Sep. 1991] 165 Scientific American 112, 112.
[3] A computer network is created as soon as two computers are linked together in a way which allows them to communicate information between them.
[4] Branscomb, op. cit. quoting John P. Barlow co-founder of the Electronic Frontier Foundation.
[5] See for example: Gilbert, J 'Computer bulletin board operator liability for user misuse' (1985) 54 Fordham Law Review 439; Beall, R 'Developing a coherent approach to the regulation of computer bulletin boards' (1987) 7 Computer/Law Journal 499; Faucher, J D 'Let the chips fall where they may: choice of law in computer bulletin board defamation cases' (1993) 26 University of California, Davis, Law Review 1045. Most assume connection is from a personal computer through the public telephone system to the service provider (this is technically a computer network as the computer providing the service and the computer viewed by the user of the service create a temporary network) but more permanent links can be established through leased lines (available from Telecom in Australia), satellite, microwave, and private lines depending on the location of and the resources available to the user and provider of the service.
[6] Becker, L E 'The liability of computer bulletin board operators for defamation posted by others' (1989) 22 Connecticut Law Review 203, 206; Anne Branscomb warns against treating all electronic media alike (Branscomb, op. cit. 114-5) and commenting that bulletin board services are a hybrid of private and public and should be treated according to the intents of the users (Ibid. 116).
[7] Kroll, E The whole Internet: user's guide & catalog (1992), Chapter 8, 127-154.
[8] Becker, op. cit. 211. Jensen, E C 'An electronic soapbox: computer bulletin boards and the First Amendment' (1987) 39 Federal Communications Law Journal 217, 218; or 'messaging' (Beall, op. cit. 499).
[9] 'Commercial services have scores of sections, arranged by topics ranging from politics, sex, and religion through literary criticism to tropical fish.' Becker, op. cit. 211.
[10] Kroll, op. cit. Chapter 7, 91-126; Becker, op. cit. 211-2; Jensen, op. cit. 218-9.
[11] Although this can only be ensured by using some form of encryption which is not currently widely used for various reasons.
[12] Jensen, op. cit. 218; Becker, op. cit. 212; The Internet does not support this in a general way but the same effect can be achieved by remote login or telnet to physically remote machines and using the commands available on the machine itself, see Kroll, op. cit. Chapter 5, 45-58.
[13] Becker, op. cit. 212.
[14] A user is said to be able to login to a computer when they have been allocated a user name and a password and are specifically authorized to use that computer. This applies primarily to computers which allow more than one user at a time and not to personal computers.
[15] Kroll, op. cit. Chapter 6, 59-90.
[16] Becker, op. cit. 213. Conferencing is usually limited to simple text although technology is under development to handle audio and video connections.
[17] E.g. LEXIS, or WestLaw in which case there is usually a user interface provided to access more advanced facilities than just transferring the file.
[18] Jensen, op. cit. 218; Becker, op. cit. 207-9.
[19] A device which allows computers to communicate over conventional telephone lines.
[20] Writers differ over what they consider to be the Internet - Kroll, op. cit. 13. For the current purposes, any computer which is currently able to communicate with the Internet (whether by the original Internet Protocol or via some translation process) will be considered part of the network. For a brief description (with very helpful diagrams) of the Internet for the uninitiated see Cerf, V G 'Networks' [Sep. 1991] 165 Scientific American 42 (Vint Cerf is president of ISOC, see note 37). For a more comprehensive description see Kroll op. cit.
[21] Again writers differ. Often 'cyberspace' refers to any form of computer based communication but it is used interchangeably with 'Internet' - Press, L 'The Net: progress and opportunity' (1992) 35(12) Communications of the Association of Computing Machinery (ACM) 21, 21 note 1.
[22] Kroll, op. cit. 16. A conservative estimate. It is more likely over 100 and continually growing especially into poorer countries Press, op. cit.
[23] E.g. CSIRO, NASA, Australian universities.
[24] This is quite widespread in the affluent U.S. schools and in Latin America (Press, op. cit. 23) and the first Australian example, Wesley College, Melbourne has been connected since 1990.
[25] Kroll, op. cit. 16-7. For instance the commercial networks Prodigy, DECNet, CompuServe and ClariNET. While large businesses can afford their own national and international computer networks, small business is increasingly realizing that, by connecting each of their offices to the Internet for a small fee they can obtain similar advantages for a fraction of the cost.
[26] Press, L op. cit. 21; Solensky, F 'The growing Internet', (1992) 6(5) ConneXions 46.
[27] Not necessarily in physical distance but more often in terms of number of computers it needs to go through before reaching its destination.
[28] Kroll, op. cit. 19ff.
[29] A sub-network connection usually requires a translation from the language used by the sub-network to a language understood by the existing network. This service is provided by a 'gateway'. There may be many gateways from one subnetwork to another. See Cerf op. cit
[30] Kroll, op. cit. Chapter 5, 45-58.
[31] These need to be encoded in some way before transmitting them. All of the encoded forms of sound or pictures require large numbers of bits to store them, which means that they require huge amounts of storage and have a slow transfer rate. For this reason, the use of such services has previously been limited by the capabilities of the networks, but as the networks become faster, and able to handle more traffic, such uses are becoming more widespread. See Macedonia, M. R. and Bratzman, D. P., 'MBone provides audio and video across the Internet' (1994) 27 IEEE Computer 30.
[32] A global co-operative endeavour initiated by the Counseil Europeen pour la Recherche Nucleaire (CERN) - European Laboratory for Particle Physics. See Kroll, op. cit. Chapter 13, 227ff.
[33] A method of presenting information where selected words or icons (small pictures) can be 'expanded' at any time to provide further information. The information might be a description or definition of the word, or possibly an illustration or diagram, or even full video with sound.
[34] For future directions of the Internet and accessible discussion of some emerging technologies see generally the special edition on 'Communications, Computers and Networks' [Sep. 1991] 165 Scientific American.
[35] General Instrument signed agreements this year with Microsoft and Intel to incorporate software into domestic televisions allowing a wireless mouse to point at the screen and choose movies, home shop or play computer games - ACM, 'Converting television' (June 1993) 36(4) Communications of the ACM 9. Major newspaper publishers including Gannett, Knight-Ridder, and Times-Mirror have established a consortium to research new ways of delivering news involving computer networks and electronic distribution - Fox, R 'Future news' (July 1993) 36(7) Communications of the ACM 11.
[36] Gore, Al 'Infrastructure for the Global Village' [Sep. 1991] 165 Scientific American 108 (then Senator Gore) referring to the so-called 'data-highway'.
[37] Geoff Huston, Technical Manager of the Australian Academic and Research Network (AARNet - the major Australian sub-network of the Internet) and secretary of the Internet Society (ISOC - the closest there is to a governing body of the Internet), Campus Review (University of Melbourne), 30 September - 6 October, 1993.
[38] See generally Faucher, J D 'Let the chips fall where they may: choice of law in computer bulletin board defamation cases' (1993) 26 University of California, Davis, Law Review 1045. Although the writer incorrectly suggests that a new federal law would solve the conflicts problem ignoring the international nature of the Internet, ibid. 1068.
[39] Rindos v. Hardwick Unreported Judgement 940164, Delivered 31 March 1994, Supreme Court of Western Australia, Ipp J.
[40] In fact only three, all on the issue of whether separate publications should be considered together for the purposes of a defamation suit.
[41] Cubby, Inc. v. CompuServe 776 F. Supp 135 (1991). CompuServe is now connected to the Internet.
[42] The suit was settled for $US 500,000, ACM, 'Dressed for success' (Dec. 1992) 35(12) Communications of the ACM 7.
[43] Becker, op.cit. 205.
[44] Private communication with David Rindos 21/4/94.
[45] Walker, S The Law of Journalism in Australia (1989), 135.
[46] Defamation Law of Qld 1889 s.9 applying the Criminal Code Act 1899 (Qld) ss 365-89 to civil actions also.
[47] Defamation Act 1957 (Tas).
[48] Criminal Code Act 1913 (WA) ss 345-69 and Newspaper Libel and Registration Act 1884. See the Law Reform Commission of Western Australia, Report on Defamation, Project No. 8, 1979.
[49] Wrongs Act 1958 (Vic).
[50] Wrongs Act 1936 (SA).
[51] NSW Act Application Ordinance (ACT) No. 41 1984 Schedule 2 Parts 11 and 12 applying the Defamation Act 1901 (NSW) and the Defamation (Amendment) Act 1909 (NSW).
[52] Defamation Act 1938 (NT).
[53] Defamation Act 1974 s.3(2) affirms that this is only a partial codification. A more complete codification was in force between 1958 and 1974.
[54] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, par.46.
[55] Faucher, op. cit.
[56] Carson v. John Fairfax & Sons Ltd [1993] HCA 31; (1992) 113 ALR 577, 589 (per Mason CJ, Deane, Dawson and Gaudron JJ).
[57] Aldridge v. John Fairfax & Sons Ltd [1984] 2 NSWLR 544, 551.
[58] Watterson, R., 'What is defamatory today?' (1993) 67 Australian Law Journal 811, 812.
[59] Walker, S The Law of Journalism in Australia (1989), 142.
[60] Webb v. Beavan [1883] UKLawRpKQB 87; (1883) 11 QBD 609; D & L Caterers Ltd v. D'Ajou [1945] KB 210.
[61] Carslake v. Mapledoran [1788] EngR 148; (1788) 2 TR 473; 100 ER 255.
[62] Slander of Women Act 1891 (UK); now s.8 Wrongs Act 1958 (Vic), s.5 Wrongs Act 1936-75 (SA), s.4 Defamation Ordinance 1938-64 (NT).
[63] Chomley v. Watson [1907] ArgusLawRp 50; [1907] VLR 502.
[64] Criminal Code (Qld) s.368.
[65] Defamation Act 1957 (Tas) s.6.
[66] Defamation Act 1901 (NSW) s.3(2).
[67] Defamation Act 1974 (NSW) s.8.
[68] Youssoupoff v. MGM Pictures Ltd (1934) 50 TLR 581, 583, 587, words spoken on film are libel.
[69] Wainer v. Rippon [1980] VicRp 15; [1980] VR 129, 134 and Meldrum v. ABC Ltd [1932] ArgusLawRp 78; [1932] VLR 425, 426. This is the test adopted in the U.S. - Stevens, G E & Hoffman, H M 'Tort liability for defamation by computer' (1977) 6 Rutgers Journal of Computers and the Law 91, 93 note 11.
[70] Meldrum v. ABC Ltd [1932] ArgusLawRp 78; [1932] VLR 425, 438-9 per McArthur J, Mann J agreeing (this decision has been highly criticized as inconsistent with English authority - see Redmond, J A 'Reading from script into broadcasting apparatus - libel or slander' (1933) 7 Australian Law Journal 257; 'Reading from script into broadcasting apparatus - libel or slander' (1932) 6 Australian Law Journal 301) and Mitchell v. ABC (1958) 60 WALR 38 per Jackson J.
[71] Wainer v. Rippon [1980] VicRp 15; [1980] VR 129, 132 affirming the centrality of the permanence test in the light of the legislation discussed below.
[72] Broadcasting Act 1942 (Cth) s.120. Now Broadcasting Services Act 1992 (Cth) s.206.
[73] Burns v. Collins [1968] VicRp 88; [1968] VR 667, 670 where Mennhennitt J suggesting the two tests were alternatives and that the legislation did not reflect this. This decision is discussed in Miller, R H 'The Commonwealth broadcasting power and defamation by radio and television' (1972) 4 University of Tasmania Law Review 70.
[74] Kasic v. ABC [1964] VicRp 90; [1964] VR 702, 705; Wainer v. Rippon [1980] VicRp 15; [1980] VR 129, 134-5 (not restricted to operators of broadcasting stations); Church of Scientology Inc v. Anderson [1980] WAR 71,76-7; and Gorton v. ABC (1973) 227 FLR 181, 184.
[75] Broadcasting Services Act 1992 (Cth) s.6(1).
[76] Macedonia & Bratzman, op. cit. Note: that this exception raises the question of the legality under the Broadcast Services Act of this service even being provided to Australia.
[77] Redmond, J A 'Reading from script into broadcasting apparatus - libel or slander' (1933) 7 Australian Law Journal 257, 258.
[78] Perhaps the dissenting judgment of Lowe J in Meldrum v. ABC [1932] ArgusLawRp 78; [1932] VLR 425, 442-3 provides some support.
[79] Miller, op. cit. 71-2; Hayes R A, 'Section 124 of the Broadcasting and Television Act and the Defamatory Broadcast' [1971] Australian Current Law Review 218, 219-20; Redmond, J A 'Reading from script into broadcasting apparatus - libel or slander' (1933) 7 Australian Law Journal 257, 258-9.
[80] Pullman v. Walter Hill and Co Ltd [1890] UKLawRpKQB 193; [1891] 1 QB 524, 527, 529, 530; Burrows v. Knightley (1987) 10 NSWLR 651, 654; Defamation Act 1957 (Tas) s.7; Criminal Code (Qld) s.369; Criminal Code (WA) s.349.
[81] Adams [1888] UKLawRpKQB 183; (1889) 22 QBD 66, 69.
[82] Sadgrove v. Hole [1901] UKLawRpKQB 42; [1901] 2 KB 1.
[83] O'Connor v. Skehan [1903] QWN 43 and Wennhak v. Morgan [1888] UKLawRpKQB 29; (1888) 20 QBD 635.
[84] Evatt v. Australian Consolidated Press Ltd (1969) 90 WN(Pt 1) (NSW) 384,385; Webb v. Bloch [1928] HCA 50; (1928) 41 CLR 331, 362-6; Criminal Code (Qld) s. 387 and Defamation Law of Queensland 1889 ss 34 and 36; Defamation Act 1957 (Tas) ss 26-7. Contrast the U.S. position where secondary publishers need to have actual or constructive knowledge - Becker, op. cit. 226-7.
[85] Thiess v. TCN Nine (No. 5) [1994] 1 Qld R 156, 194-5 citing Webb v. Bloch [1928] HCA 50; (1928) 41 CLR 331, 345.
[86] Walker, S The Law of Journalism in Australia (1989), 149; Whitney v. Moignard [1890] UKLawRpKQB 57; (1890) 24 QBD 630, 631, 632; dicta in Speight v. Gosnay (1891) 60 LJQB 231, 232, 233; Sims v. Wran [1984] 1 NSWLR 317, 320. There are significant implications for pleading however: Thiess v. TCN Nine (No.5) [1994] 1 Qld R 156, 195-6.
[88] Ibid. 363-6.
[89] Hewitt v. West Australian Newspapers Ltd (1976) 17 ACTR 15, 20 allaying the fears expressed in Cooper, J 'Defamation by satellite' (1988) 132 Solicitors Journal 1021.
[90] McLean v. David Syme & Co (1970) 72 SR (NSW) 513, 517; Toomey v. Mirror Newspapers Ltd (1985) 1 NSWLR 173, 177-8.
[91] Indeed in New South Wales, one can only plead a separate cause against the same defendant for the same material by leave of the court - Defamation Act 1974 (NSW) s.9.
[92] McLean v. David Syme & Co (1970) 72 SR (NSW) 513, 528; Toomey v. Mirror Newspapers Ltd (1985) 1 NSWLR 173, 178.
[93] Gorton v. ABC (1973) 22 FLR 181, 183; Jenner v. Sun Oil [1952] 2 DLR 526, 537.
[94] Toomey v. Mirror Newspapers Ltd (1985) 1 NSWLR 173, 179; Burrows v. Knightley (1987) 10 NSWLR 651, 655.
[95] Harper and Jones, The Law of Torts Vol 1 (1956) 394-8. The Faulks Committee (Report of the Committee on Defamation (1975) Cmnd 5909 par.290) recommended one proceeding for the same material against the same defendant and further proceedings only with leave of the court similar to that now implemented in New South Wales (Defamation Act 1974 (NSW) s.9. The Australian Law Reform Commission recommended a single publication rule like that in the U.S. (Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, par.113-5) however there has been no change in Australia other than in NSW.
[96] Faucher, op. cit. 1067.
[97] Toomey v. Mirror Newspapers Ltd (1985) 1 NSWLR 173, 186.
[99] Ibid. 729 per Slesser LJ, Scott LJ agreeing.
[100] The forum is not convenient - in England a court will only try an issue if there is a real and substantial connection with the jurisdiction. See Spiliada Maritime Corp. v. Cansulex Ltd [1986] UKHL 10; [1987] 1 AC 460.
[101] [1952] 2 DLR 526, 537-8, 540 distinguishing Kroch as applying forum non conveniens.
[102] Ibid. 538-41.
[103] Oceanic Sunshine Special Shipping v. Fay [1988] HCA 32; (1988) 165 CLR 197, 247-8. Voth v. Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, 570.
[104] Ibid. See also Kawasaki Steel Corporation v. Owners of Ship Daeyong Hong (1993) 120 ALR 109.
[105] Oceanic Sunshine Special Shipping v. Fay [1988] HCA 32; (1988) 165 CLR 197, 248. See also CV Bankinvest AG v. Seabrook (1988) 14 NSWLR 711.
[106] See also Cooper, op.cit. 1022. The provisions for service out in Australian superior courts provide similar difficulties.
[107] (1870) LR 6 QB 1, 28-9 as followed by the High Court in Koop v. Bebb [1951] HCA 77; (1951) 84 CLR 629, 642.
[108] Although there has been recent debate as to whether forum shopping is an evil to be avoided ( Jueger, F, 'What's wrong with forum shopping?' [1994] SydLawRw 1; (1994) 16 Sydney Law Review 5; Opeskin, B, 'The price of forum shopping: a reply' [1994] SydLawRw 2; (1994) 16 Sydney Law Review 14; Jueger, F 'Forum shopping: a rejoinder' [1994] SydLawRw 3; (1994) 16 Sydney Law Review 28) the Australian courts and legislatures seem united in opposition to allowing unfettered forum shopping.
[109] Breavington v. Godleman [1988] HCA 40; (1988) 169 CLR 41, 78-9 (Mason CJ), 99 (Wilson and Gaudron JJ), 126 (Deane J) relying on s.118 of the Constitution.
[110] S.384. Faucher, op. cit. 1056-66 discusses the history of U.S. approaches to this problem.
[111] Breavington v. Godleman [1988] HCA 40; (1988) 169 CLR 41, 99. See also ABC v. Waterhouse (1991) 25 NSWLR 519, 525-6.
[112] Ibid. 531 where Samuels JA summarizes the majority conclusions of the High Court in Breavington (Priestley JA and Meagher JA agreeing).
[113] (1971) s.145.
[114] McKain v. RW Miller & Co (SA) [1991] HCA 56; (1992) 174 CLR 1, 35, 37-40 (joint judgment of Brennan, Dawson, Toohey and McHugh JJ). Since reaffirmed twice by the High Court all in personal injury claims: Stevens v. Head [1993] HCA 19; (1993) 176 CLR 433 and Goryl v. Greyhound Australia Pty Ltd [1994] HCA 18; (1994) 120 ALR 605. In all three cases Deane and Gaudron JJ have maintained that s.118 of the Constitution prevents anything but lex fori within Australia.
[115] Waterhouse v. ABC Hunt J, NSW Supreme Court, 7 February 1992, unreported. Affirmed by Hunt J in Waterhouse v. ABC (1992) 27 NSWLR 1.
[116] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth, and States). This cooperative legislative scheme allows any State or Territory Supreme Court or the Federal Court or Family Court in Australia to exercise the jurisdiction of any another of these courts. Transfer provisions allow the case to be transferred to a more appropriate court to prevent forum shopping. None of the previously mentioned High Court cases consider the impact of this scheme!
[117] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth, and States), s.11(1)(a) except that for Federal Courts they must apply the jurisdiction of the State or Territory from which the case was transferred (s.11(2)).
[118] Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth, and States), s.11(1)(b).
[120] Ibid. 6. This flexibility was admitted in both Breavington and McKain.
[121] Ibid. 7 quoting Mason CJ in Breavington [1988] HCA 40; (1988) 169 CLR 41, 258.
[122] Woodger (1992) 107 ACTR 1, 7.
[123] Ibid. 8.
[124] See paragraph (b) of the preamble to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth, and States).
[125] Hepburn v. TCN Channel 9 [1983] 2 NSWLR 664; McCauley v. John Fairfax & Sons [1933] NSWStRp 65; (1933) 34 SR (NSW) 339,1341-2; "Truth" (NZ) Ltd v. Philip North Holloway [1960] 1 WLR 997, 1002-3.
[126] The Koursk [1924] P. 140, 155 with Cairns, BC Australian Civil Procedure (3rd Edition 1992) 241.
[127] Walker, S The Law of Journalism in Australia (1989), 158-61 par's 3.8.17-8.
[128] "Truth" (NZ) Ltd v. Philip North Holloway [1960] 1 WLR 997, 1003.
[129] Heerey, P C 'Publishing the defamatory statements of others' (1985) 59 Australian Law Journal 371. For talk-back radio see Window v. 3AW Broadcasting Co., Lazarus J, 5 March 1986, unreported.
[130] "Truth" (NZ) Ltd v. Philip North Holloway [1960] 1 WLR 997, 1002-3; Hughes v. WA Newspapers [1940] WALawRp 13; (1940) 43 WALR 12, 13; Wake v. John Fairfax & Sons [1973] 1 NSWLR 43, 49-50; and ABC v. Comalco Ltd [1986] FCA 300; (1986) 68 ALR 259, 265-9, 316-8, 335-7.
[131] Australian Ocean Line Pty Ltd v. West Australian Newspapers Ltd [1985] FCA 37; (1985) 58 ALR 549, 617.
[132] Tobin v. City Bank (1878) 1 SCR NS (NSW) 267 (Full Court of the Supreme Court).
[133] Becker, op. cit. 217, note 66 commenting at 218 that these cases all seem to imply approval by the operator of the posting.
[135] Ibid. 829, 834-5, 837-8.
[136] Ibid. 835.
[137] Where one or more people approve postings before they are distributed.
[138] Emmens v. Pottle (1885) 16 QBD 354, 357-8. Thompson v. Australian Capital Television Pty Ltd [20 Dec. 1993] (Unreported), per Gallop J, 12.
[139] The test used by Lord Bridge was is the material 'likely to contain' defamatory imputations. Lord Denning dissented arguing people will refuse to carry controversial material - Goldsmith v. Sperring [1977] 2 All ER 566, 581-2. See also Emmens v. Pottle (1885) 16 QBD 354, 357, 358; Sun Life Assurance of Canada v. W H Smith and Son (1933) 150 LT 211, 212, 214, 215-6; Thompson v. Australian Capital Television Pty Ltd [20 Dec. 1993] (Unreported), per Gallop J, 16-8 (Gallop J declining to choose between the majority and dissenting judgments).
[140] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 97.
[141] Goldsmith v. Sperring [1977] 2 All ER 566, 583-4 per Scarman LJ
[142] Lord Denning strongly dissented for this reason - Ibid. 572.
[143] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 99.
[144] Ibid. 97 but not wholesalers (at 98) or printers (at 98-9).
[145] Ibid. 98-9.
[146] New York Times Co. v. Sullivan [1964] USSC 40; 376 US 254 (1964), 279-80.
[147] The application of Sullivan is limited to certain kinds of speech - Philadelphia Newspapers Inc. v. Hepps [1986] USSC 73; 106 S.Ct. 1558 (1986), 1563; Gertz v. Robert Welch Inc [1974] USSC 144; 418 US 323 (1974).
[148] Beall, op. cit. 508-9.
[149] Restatement (Second) on Torts s.621 and Anderson v. New York Telephone Co 35 NY 2d 756 (1974).
[150] Jensen, op.cit. 250-1.
[151] 525 F2d 630 (1976).
[152] Ibid. 640.
[153] Contrary to the Australian position.
[154] Farmers Union v. WDAY 36 US 525 (1959).
[155] Gilbert, op. cit. 443-5; Beall, op. cit. 506. Jensen, op.cit. 251-2.
[156] 776 F. Supp 135 (1991).
[157] Ibid. 139 (quoting Cianci v. New Times Publishing [1980] USCA2 902; 639 F2d 54, (1977), 61).
[158] Ibid. (quoting Lerman v. Chuckleberry Publishing 521 F.Supp 228 (1981), 235).
[159] Ibid. 139-40.
[160] Ibid. 140.
[161] Western Union Telegraph Co. v. Lesene [1950] USCA4 104; 182 F2d 135 (1950), 137.
[162] Jensen, op.cit. 251-2.
[163] Walker, S The Law of Journalism in Australia (1989), 146 par.3.8.04.
[164] Thompson v. Australian Capital Television Pty Ltd [20 Dec. 1993] (Unreported), per Gallop J, 14-5.
[165] Ibid. 13.
[166] Ibid. 14.
[167] Keeping the 'signal-to-noise ratio' low.
[168] See above, section 7.4.
[169] Further detail can be found in Watterson, op. cit.
[170] Hadzel v. De Waldorf (1970) 16 FLR 174.
[171] Boyd v. Mirror Newspapers [1980] 2 NSWLR 449, 452.
[172] David Syme & Co v. Canavan [1918] HCA 50; (1918) 25 CLR 234, 238.
[173] Gorton v. ABC (1973) 22 FLR 181, 187; John Fairfax & Sons v. Hook [1983] FCA 83; (1983) 47 ALR 477, 481.
[174] Hepburn v. TCN Channel 9 [1983] 2 NSWLR 664, 667; Baltinos v. Foreign Language Publications (1986) 6 NSWLR 85, 90.
[175] Gorton v. ABC (1973) 22 FLR 181, 186-7; ABC v. Comalco Ltd (1986) 698 ALR 259, 263-4.
[176] Morosi v. Broadcasting Station 2GB [1980] 2 NSWLR 418, 420 where a radio broadcast at 7:15a.m. implied a low level of concentration in the listeners - per Samuels JA delivering the judgment of the NSW Court of Appeal.
[177] Jones v. Skelton (1963) 63 SR (NSW) 644, 650; 1 WLR 1362, 1370-1.
[178] John Fairfax & Sons v. Hook [1983] FCA 83; (1983) 72 FLR 190, 192 (Full Court of the Federal Court).
[179] Ibid.
[180] ABC v. Comalco [1986] FCA 300; (1986) 12 FCR 510, 515 (Full Court of the Federal Court).
[181] Bik v. Mirror Newspapers [1979] 2 NSWLR 679, 682, 683-4.
[182] Sergi v. ABC [1983] 2 NSWLR 669, 673-4.
[183] Middle East Airlines Airliban SAL v. Sungravure [1974] 1 NSWLR 323, 340 per Glass JA; Hepburn v. TCN Channel 9 [1983] 2 NSWLR 682, 686 per Hutley JA, 693-4 per Glass JA.
[184] Reader's Digest Services v. Lamb [1982] HCA 4; (1982) 150 CLR 500, 504-5 (Brennan J delivering the judgment of the High Court).
[185] Ibid.
[186] Grapelli v. Dereck Block [1981] 1 WLR 822, 825, 831; Burrows v. Knightley (1987) 10 NSWLR 651, 654.
[187] Consolidated Trust v. Browne [1948] NSWStRp 71; (1948) 49 SR (NSW) 86, 89; Cross v. Denley (1952) 52 SR (NSW) 112, 116 applies to identification also.
[188] Hough v. London Express Newspaper Ltd [1940] 2 KB 507, 513 where a photo of a lady accompanying a man wrongly described as his wife was held to convey the imputation that the wife was dishonestly presenting herself as the his wife.
[189] '"Calculated" means likely. The term draws attention to the tendency of the material rather than to its actual effect or the publisher's intention.' Walker, S The Law of Journalism in Australia (1989), 1551.
[190] Hunt J suggests that these tests are to be used in the alternative Boyd v. Mirror Newspapers [1980] 2 NSWLR 449, 452.
[191] Parmiter v. Coupland [1840] EngR 168; (1840) 151 ER 340, 342 per Baron Parke.
[192] Sim v. Stretch (1936) 52 TLR 669, 671 per Lord Atkin.
[193] Youssoupouff v. MGM (1934) 50 TLR 581, 587 per Slesser LJ.
[194] Boyd v. Mirror Newspapers [1980] 2 NSWLR 449, 452-3.
[195] Sim v. Stretch (1936) 52 TLR 669, 671 per Lord Atkin.
[196] Youssoupouff v. MGM (1934) 50 TLR 581, 587 per Slesser LJ; Boyd v. Mirror Newspapers [1980] 2 NSWLR 449, 452-3.
[197] Monti-Haitsma Enterprises Pty Ltd v. Lord [1980] Aust. Torts R. 67,967 (NSW Ct of Appeal); Ermin v. Southdown Press [1976] VicRp 31; [1976] VR 353; Kean v. Consolidated Press (1956) 73 WN (NSW)387.
[198] Criminal Code (Qld) s.366.
[199] Defamation Act 1957 (Tas) s.5.
[200] Defamation Act 1957 (Tas) s.5(1). Note that the Defamation Act 1958 (NSW)s.5 was also worded in this form but has since been repealed by the 1974 Act.
[201] Murphy v. Australian Consolidated Press [1968] 3 NSWR 200, 204 per Walsh JA.
[202] Ibid.
[203] Walker, S The Law of Journalism in Australia (1989), 154. The common law rule is that an action for defamation terminates on the death of the defamed person (at 163).
[204] Watterson, op. cit. 813.
[205] Sungravure Pty Ltd v. Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1, 6, 10, 21-5; Mirror Newspapers Ltd v. World Hosts Pty Ltd (1979) 141 CLR 632, 640; Dawson Bloodstock Agency v. Mirror Newspapers [1979] 1 NSWLR 16, 18.
[206] See below, section 11.
[207] Church of Scientology of California Inc v. Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344, 354-6. In particular, the Defamation Act 1974 (NSW) s.5 does not require that the plaintiff be capable of having a family member and can be a corporation - World Hosts Pty Ltd v. Mirror Newspapers [1978] 1 NSWLR 189, 195 (NSW Court of Appeal).
[208] David Syme & Co v. Canavan [1918] HCA 50; (1918) 25 CLR 234, 238 per Isaacs J. See also Godhard v. James Inglis & Co [1904] HCA 37; (1904) 2 CLR 78.
[209] David Syme & Co v. Canavan [1918] HCA 50; (1918) 25 CLR 234, 238. So defamation occurs where the group is small enough to identify all of its members (e.g. the Queensland cabinet - Bjelke-Petersen v. Warburton [1986] 2 Qd R 465 - or a shire Council - Somerville v. Cliff (1942) 15 LGR 40) or a particular person is singled out - Knupffer v. London Express Newspapers [1944] UKHL 1; [1944] AC 116.
[210] David Syme & Co v. Canavan [1918] HCA 50; (1918) 25 CLR 234, 238.
[211] Cassidy v. Daily Mirror Newspapers [1929] 2 KB 331 (where a reference to a lady's husband in the company of another lady 'whose engagement has been announced' was held to defame the wife); E Hulton & Co v. Jones [1909] UKLawRpAC 57; [1910] AC 20 (where an article intended to be fictitious but using the name of a real person.)
[212] Each user on a computer system which supports e-mail has a unique address, usually incorporating the address of a computer on the network together with the user name (a unique code for each user on a particular machine).
[213] The system administrator (sysop) or moderator (of a particular newsgroup) would be sufficient for receivers of a publication to identify a defamed person.
[214] See above, section 7.4.
[215] Australian Ocean Line Pty Ltd v. West Australian Newspapers Ltd [1985] FCA 37; (1985) 58 ALR 549, 597 held that the common law defence still applies in Western Australia despite the narrower defence in Criminal Code (WA) s.356.
[216] Thompson v. Australia Consolidated Press [1968] 3 NSWR 642. See also Smith [1876] SALawRp 35; (1876) 10 SALR 213.
[217] Defamation Act 1974 (NSW) s.15 although Defamation, Discussion Paper No.32, August 1993, New South Wales Law Reform Commission, par.6.22 suggests a return to truth alone as a defence.
[218] Criminal Code (Qld) s.376.
[219] Defamation Act 1957 (Tas) s.15.
[220] Defamation Act 1901 (NSW) s.6.
[221] NSW only. See Bleyer v. TCN Nine (No. 5) [1993] Aust. Tort Reports 62 for a recent example.
[222] Mutch v. Sleeman [1928] NSWStRp 104; (1928) 29 SR (NSW) 125 where the judgment of the Full Court of the Supreme Court was affirmed by the High Court on other grounds - (1929) 2 ALJ 403.
[223] Kennett v. Farmer [1988] VicRp 90; [1988] VR 991; followed in Gumina v. Williams (No 2) (1990) 3 WAR 351, 354-5.
[224] Note that where there are two or more distinct allegations, damages may still be available despite the fact that the reputation of the plaintiff is not harmed any more by the accompanying false imputation than by those that are true - Hepburn v. TCN Channel 9 [1984] 1 NSWLR 386; Jackson v. Australia Consolidated Press [1966] 2 NSWR 775.
[225] Sutherland v. Stopes [1925] AC 47, 79; Polly Peck (Holdings) v. Trelford [1986] 2 WLR 845, 869; Woodger v. Federal Capital Press (1992) 107 ACTR 1, 4. Modified in Tasmania (Defamation Act 1957 (Tas) s.18) and NSW (Defamation Act 1974 (NSW) s.16).
[226] Allaying Fleming's concerns about the Tasmanian provisions - Fleming, J G The Law of Torts 7th edition (1987) 529.
[227] Walker, S The Law of Journalism in Australia (1989), 136. Although the Court of Appeal (NSW) suggested that there was no presumption of either truth or falsity - Singleton v. French (1986) 5 NSWLR 425, 441-3.
[228] Garrison v. Louisiana [1964] USSC 217; 379 US 64 (1964), 74; and Philadelphia Newspapers v. Hepps 54 USLW 4373 (1986). United Kingdom, Report of the Committee on Defamation, (1975) Cmnd 5909, par.141 rejected a proposal to introduce this rule to England.
[229] Rochfort v. John Fairfax & Sons Ltd [1972] 1 NSWLR 16.
[230] Mirror Newspapers Ltd v. Harrison [1982] HCA 50; (1982) 149 CLR 293, 302 per Mason J (Court agreeing); Lewis v. Daily Telegraph Ltd [1964] AC 234.
[231] McLachlan v. Rural Press Ltd (No. 1) (1991) 105 FLR 369. Although Queensland and New South Wales require only an absence of belief that the facts are untrue: Pervan v. North Queensland Newspaper Co. Ltd [1993] HCA 64; (1993) 117 ALR 569, 578-9 (per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron JJ), 585 (McHugh dissenting).
[232] Smith's Newspapers Ltd v. Becker [1932] HCA 39; (1932) 47 CLR 279, 301-3 per Evatt J; Gorton v. ABC (1974) 22 FLR 181, 193.
[233] Renouf v. Federal Capital Press (1977) 17 ACTR 35, 43 (a prophecy of likely future events); Broadway Approvals v. Odhams Press [1964] 2 QB 683, 685-6; Defamation Act (NSW) s. 35.
[234] Bob Kay Real Estate Ltd v. Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505, 516-7; McQuire v. Western Morning News [1903] UKLawRpKQB 105; [1903] 2 KB 100, 109; Sims v. Wran [1984] 1 NSWLR 317, 325.
[235] Falke v. Herald & Weekly Times [1924] VicLawRp 95; [1925] VLR 56, 69 per McArthur J (Court agreeing).
[236] Pervan v. North Queensland Newspaper Co. Ltd [1993] HCA 64; (1993) 117 ALR 569, 581-2.
[237] Cawley v. Australian Consolidated Press [1981] 2 NSWLR 225, 231-7. See Howard, M 'Phillips v. Eyre - Jurisdiction test or choice of law rule?' [1982] UTasLawRw 6; 7 University of Tasmania Law Review 218.
[238] Renouf v. Federal Capital Press (1977) 17 ACTR 35, 53-9.
[239] Gardiner v. John Fairfax & Sons [1942] NSWStRp 16; (1942) 42 SR (NSW) 171, 173-4. Although extreme criticism may not attract the defence - O'Shaughnessy v. Mirror Newspapers Ltd [1970] HCA 52; (1970) 125 CLR 166 (a producer and actor); Newbury v. Triad Magazine Ltd [1921] NSWStRp 6; (1921) 21 SR (NSW) 189 (concerning a tenor); Ireland v. King (1874) 5 AJR 24 (concerning an actor).
[240] Renouf v. Federal Capital Press (1977) 17 ACTR 35, 41. Note that the private life of a public official is not normally covered by this exception - Broadbent v. Small [1876] VicLawRp 65; (1876) 2 VLR (L.) 121; Ward v. Derington (1880) 14 SALR 235; Mutch v. Sleeman [1928] NSWStRp 104; (1928) 29 SR (NSW) 125, 137.
[241] London Artists Ltd v. Littler [1968] EWCA Civ 3; [1969] 2 QB 375, 391.
[242] Defamation Act 1974 (NSW) s.31 adopting the common law.
[243] Criminal Code (Qld) s.375(1).
[244] Criminal Code (WA) s.355(1). However the common law defence is still available concurrently.
[245] Defamation Act 1957 (Tas) s.14.
[246] Defamation Act 1938 (NT) s.6A.
[247] Walker, S The Law of Journalism in Australia (1989), 136-8.
[248] Milkovitch v. Lorain Journal Co et al. [1990] USSC 117; 497 U.S. 1 (1990). Gregory v. McDonnell Douglas 131 Cal. Rptr 641 (1976). Stevens, G E & Hoffman, H M 'Tort liability for defamation by computer' (1977) 6 Rutgers Journal of Computers and the Law 91, 99-100.
[249] Walker, S The Law of Journalism in Australia (1989), 137 citing Strossen, N 'A defence of the aspirations - but not the achievements - of the US rules limiting defamation actions by public officials or public figures' (1986) 3 The Gazette of Law and Journalism 10.
[250] Browne v. M'Kinley [1886] VicLawRp 60; (1886) 12 VLR 240, 242; Givens v. David Syme & Co (No2) [1917] ArgusLawRp 65; [1917] VLR 437, 445.
[251] See Holding v. Jennings [1979] VicRp 29; [1979] VR 289.
[252] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 82-4.
[253] Horrocks v. Lowe [1975] AC 135, 149; Anderson v. Fairfax [1883] NSWLawRp 29; (1883) 4 LR NSW 183, 321-3; Mallan v. A.M. Bickford & Sons [1915] SALawRp 5; [1915] SALR 47, 83-4.
[254] Duane v. Granrott [1982] VicRp 76; [1982] VR 767; Brown v. Federated Miscellaneous Workers Union (1981) 9 NTR 33. Compare Cole v. Operative Plaster's Federation of Australia [1927] NSWStRp 85; (1927) 28 SR (NSW) 62.
[255] Chapman v. Ellesmere [1932] 2 KB 431 (publication of the results of Jockey Club stewards' deliberations in a racing journal); Thompson v. Amos (1949) 23 ALJ 98 (High Court - church synod meeting for disciplinary proceedings).
[256] Defamation Act 1974 (NSW) s.20(1)(c). Available in addition to the common law defence.
[257] Criminal Code s.377.
[258] Defamation Act 1957 (Tas) s.16 and Criminal Code (Tas) s.208.
[259] Toyne v. Everingham [1993] NTSC 55; (1993) 91 NTR 1.
[260] Wrongs Act 1958 (Vic) s.7; Wrongs Act 1936 (SA) s.10; Defamation Law of Queensland 1889 (Qld); Defamation Act 1901 (NSW) s.8 - applying in the ACT only; Defamation Act 1938 (NT) s.9; Defamation Act 1974 (NSW) s.37 which is slightly different in operation.
[261] Jackson v. Australia Consolidated Press [1966] 2 NSWR 775.
[262] Lafone v. Smith (1885) 28 LR Ex 33, 34-5.
[263] Wrongs Act 1936 (SA) s.10.
[264] Humphries v. TWT Ltd [1993] FCA 577; (1993) 120 ALR 693.
[265] Ibid. esp. 701.
[266] Ibid. although, in this case the reduction in costs was overturned as the apology and damages award did not take sufficient notice of the vindication aspect of damages.
[267] Defamation, Discussion Paper No.32, August 1993, New South Wales Law Reform Commission.
[268] Walker, S, 'The NSWLRC's Discussion Paper on defamation' (1993) 2 Torts Law Journal 69.
[269] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 102.
[270] Slander of itself cannot bring criminal sanction - Langley [1728] EngR 336; (1704) Holt KB 654; 90 ER 126 but if the material is blasphemous, seditious, obscene or tends to provoke a breach of peace there is still criminal liability - Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 102.
[271] Gleaves v. Deakin [1980] AC 477 quoting Lord Denning in Goldsmith v. Sperrings [1977] 1 WLR 478, 485.
[272] Wicks [1936] All ER 384; Goldsmith v. Pressdram Ltd [1976] 3 WLR 191.
[273] Criminal Code (NT) s.204.
[274] Unfair Publication: Defamation and privacy, Report 11, 1979, Australian Law Reform Commission, 102.
[275] Criminal Code (Qld) s.380; Criminal Code (WA) s.360; Defamation Act (Tas) s.9. Defamation Act 1901 (NSW) ss 11-2 applying by virtue of the Seat of Government Acceptance Act 1909 (Cth) s.6.
[276] Defamation Act 1974 (NSW) s.50(1).
[277] Criminal intent.
[278] Walker, S The Law of Journalism in Australia (1989), 218-9.
[279] Ibid. 138 par.3.7.03. Watterson, op. cit. 811.
[280] Global Sportsman Pty Ltd v. Mirror Newspapers Ltd [1984] FCA 180; (1984) 55 ALR 25, 29 (Full Ct, Fed. Ct).
[281] Mansard Developments v. Town of Armadale (1985) 3 B.C.L. 400.
[282] Chamberlain v. Boyd [1883] UKLawRpKQB 44; (1883) 11 QBD 407, 412; Ratcliffe v. Evans [1892] UKLawRpKQB 131; [1892] 2 QB 524, 532-3.
[283] Decor Corporation Pty Ltd v. Bo-Water Scott (1985) 5 FCR 432, 436-7.
[284] Clarke v. Meigher [1917] NSWStRp 72; (1917) 17 SR (NSW) 617.
[285] 1974 (Cth) and the related State legislation - Fair Trading Act 1985 (Vic); Fair Trading Act 1987 (NSW); Fair Trading Act 1987 (SA).
[286] Selling a newspaper is sufficient - Australian Ocean Line v. West Australian Newspapers [1985] FCA 37; (1985) 58 ALR 549.
[287] This was the first case where a publisher was made liable for infringing the Trade Practices Act 1974 (Cth) s.52.
[288] The State legislation has similar amendments.
[289] Lovatt v. Consolidated Magazines Ltd (1988) 12 IPR 261, 272-4.
[290] Ss 82 and 75B(1). Australian Ocean Line v. West Australian Newspapers [1985] FCA 37; (1985) 58 ALR 549.
[291] Gilbert, op. cit. 441.
[292] Ibid. 452-3. See also Becker, op. cit. 207.
[293] Gilbert, op. cit. 447-9; Beall, op. cit. 511.
[294] Gilbert, op. cit. 449-500.
[295] Ibid. 446 commenting that there is no First Amendment right for anonymity in expressing an opinion. Jensen, op.cit. 253-5 suggests a misuser could be required to be identified in the US but not generally any member.