The law continues to struggle to keep up with technology, particularly the internet.
We now have a shiny new uniform Defamation Act. It came into force on January 1 throughout Australia.
It resolved, at last, a great hang-up between the states left over from convict heritage, but meanwhile, information continues to travel fast and furious from destinations unknown to recipients unknown over the net, and the law is having difficulty catching up.
This week the NSW Supreme Court produced a couple of judgments showing how difficult it is to fit the restrictive English view of publication into a modern world.
In one case a teacher sued the State of NSW, which runs the schools, over something offensive put on the internet. But get this, the offensive material was posted on an external site over which the school had not control.
The teacher argued that he had complained to the principal so the principal should have either shut down every computer at the school or somehow barred access to the internet site in question from any computer in the school. The court held that because the principal did neither of these things the school had “published” the defamatory material. The court relied on old cases where taking part in publication, acquiescing in or even being an agent in distribution is deemed to be publishing. The internet was akin to a school noticeboard.
Well, that is a whopping big whiteboard, out of even Ros Kelly’s domain. The whole internet is deemed to be the noticeboard of the school (workplace or other organisation), even though the school has no control over 99.99 per cent of what is posted on the internet.
It is a bizarre application of last century’s law to this century’s information society.
The other case was about a consumer website that pasted a used car dealership, accusing it of overpricing and other wrongs against consumers. Unfortunately for the car dealer most of the offending material disappeared from the net fairly quickly. Nonetheless the court allowed the dealer to continue the action against the internet service provider.
Unfortunately, for the internet service providing company, it had no way of knowing what was being put on the site. It cannot possibly monitor everything that goes on the site for defamation or pornography come to that. It is so easy to post material on a website these days. There are literally millions of servers (just boxes that store data).
Picture millions of filing cabinets with drawers facing the street and anyone can come along and take copies of whatever is in them – except is is done down the phone lines at the speed of light. The owners of the filing cabinets allow people (for a small fee) to put documents, pictures, sound and video bites and the like into the cabinets for the world to access. And they can post them from any computer that connected to the internet in seconds.
In this world, the owner of the filing cabinets cannot know what is being put in them. The criminal law recognises this. In the case of pornography, the internet service provider escapes criminal liability, provided he expunges the material upon being made aware of it. Not so in defamation. The courts will go to illogical lengths to protect reputation.
Notice how in these two cases the plaintiffs went for the defendant with the deepest pocket: the state of NSW and the internet service provider; not the person who posted the material on the internet, who is probably a penniless scallywag.
It is absurd. The courts should hold the real publisher liable. The new defamation law does not define publication. It leaves it to the common law, which, as we have seen, is absurdly wide in this information age.
It took a lot of time and effort (and cajoling by the Commonwealth) to get the states and territories to agree to a uniform law. One or more jurisdictions might now want to revisit the definition of “publication”.
In agreeing to uniformity the states with the big convict pasts – particularly NSW – agreed to drop the requirement for “public interest” as well as truth in defending a publication. The public interest test was originally there to prevent people digging up convict pasts. At common law and in Victoria and South Australia, for example, truth alone has always been a defence.
Not a great deal turns on it because the media (and their consumers) are not especially interested in the private lives of nobodies, whereas the private lives of public figures usually of themselves contain a public interest component. But it stymied attempts at uniform defamation laws for decades.
The question now is whether uniformity will prevail in the face of new wider liability for “publication” of material over which you have very little control, particularly if state governments themselves are sued over defamatory material accessible from their computers.
Usually politicians like strict defamation laws because they benefit from them, but it might be a different story if they become defendants. Further, the big end of town which also likes strict defamation laws might change their tune when they, as employers, become liable for defamatory material about their employees put on external servers over which they have no control.
These two cases go much further than the Gutnick case in which Dow Jones, a US company (with assets in Australia), was held to be a publisher in Victoria of a newsletter stored on a server in the US. The critical difference was that the US company had an email subscription service for the clients in Victoria. And at least the actual author-collator-publisher was being sued.
The English common law (which Australia largely follows) has long stated that you “publish at your peril” It is a mentality which sees little benefit in the free flow of information.
Now the control of a computer server or the ownership of computers connected to the internet is to become perilous – unless the states and territories redefine the meaning of publication.