Privacy Law and Policy Reporter
(Unreported, NSW Sup Ct, Simpson J, 2 June 1999)
The NSW Supreme Court recently refused to restrain the publication of material over the internet on the basis that to do so would be to superimpose the NSW law relating to defamation on every other state, territory and country in the world.
Material, including information in relation to litigation between Macquarie Bank Limited (MBL) and Mr Berg, appeared on an internet site, <macquarieontrial.com>, on 24 May 1999. The site is accessible on the worldwide web, including from internet-connected computers located in New South Wales.
On 26 May, MBL and one of its executive directors, Mr Andrew Downe, filed a summons in the Supreme Court of NSW seeking an order to restrain the publication of the material which they alleged was defamatory of each of them. The case, Macquarie Bank Ltd v Charles Joseph Berg (unreported, 2 June 1999), was heard on 28 May and 1 June by Justice Caroline Simpson who handed down her judgment on 2 June.
Her Honour refused to make the orders sought despite being satisfied that the material on the site conveyed defamatory imputations about MBL and Andrew Downe.
The case proceeded on an ex parte basis because Mr Berg, who was thought to be living in the US, was absent from court. Justice Simpson proceeded on the basis that it was reasonably clear that Berg’s actions, which resulted in the publication of the material in NSW, were done from outside the State. This raised a significant jurisdictional question.
Although her Honour accepted that a court is empowered to restrain conduct which is occurring or expected to occur outside the territorial boundaries of its jurisdiction, she refused to grant the orders as a matter of discretion. Factors relevant to the exercising of such discretion include the potential enforceability of any orders made, and whether another court is a more appropriate forum. Although noting that any order she made would be enforceable only if Berg voluntarily returned to NSW, Justice Simpson stressed that unenforceability was not a determining factor in her decision.
Her Honour said that the fundamental issue at stake concerned the nature of the internet itself:
It is reasonably plain, I think, that once published on the internet, material is transmitted anywhere in the world that has an internet connection. It may be received by anybody, anywhere, having the appropriate facilities. Senior counsel conceded that to make the order as initially sought would have had the effect of restraining publication of all the material presently contained on the website to any place in the world. Recognising the difficulties associated with orders of such breadth he sought to narrow the claim by limiting the order sought to publication or dissemination ‘within New South Wales’. The limitation, however is ineffective ... Once published on the internet material can be received anywhere, and it does not lie within the competence of the publisher to restrict the reach of the publication.
Justice Simpson noted that the difficulties this causes are obvious:
An injunction to restrain defamation in NSW is designed to ensure compliance with the laws of NSW ... Such an injunction is not designed to superimpose the laws of New South Wales relating to defamation on every other state, territory and country of the world. Yet that would be the effect of an order restraining publication on the internet. It is not to be assumed that the law of defamation in other countries is co-extensive with that of NSW, and indeed, one knows that it is not. It may very well be that according to the law of the Bahamas, Tazhakistan, or Mongolia, the defendant has an unfettered right to publish the material. To make an order interfering with such a right would exceed the proper limits of the use of the injunctive power of this court.
Her Honour’s conclusion in relation to jurisdiction is questionable. In a case where the material complained of is obviously directed to readers in NSW and would be of no interest to readers in Tazhakistan, a fair and reasonable exercise of the discretion would seem to favour the court using its power to restrain the defendant’s conduct. Certainly, care must be taken with the internet not to unfairly or unreasonably impose Australian law on the rest of the world. However, the effect of Justice Simpson’s judgment is to elevate to a statement of principle a matter which should simply be one of a number that are taken into account when deciding whether or not to exercise the court’s power.
Zoe Parry, Solicitor, Clayton Utz, Sydney.