Australia: Print Media versus Online

Last Updated: 6 October 2008
Article by Peter Karcher

Originally Published January 2008

Publishers obviously have a great interest in the online space, although the fear that "new" media will supersede the "old" media of print has not, as yet, materialised. Nevertheless a strong online presence is an important part of most publishers' arsenal. A general rule of thumb when considering legal issues in online publishing is that the law doesn't suddenly change when you move to the online space.1 We have on more than one occasion told clients that their proposed (or active!) website is likely to constitute an infringement of other parties' rights, to be met with a response along the lines of "well, we're only doing what Publisher XYZ is doing, and they are much bigger than us, so it must be ok, right?". There is a perception that, because digital material is so readily available on the Internet and is easy to appropriate, re-use or link to, copyright law doesn't, or shouldn't apply. That perception is incorrect.

Get the Rights You Need

The most important thing for a publisher is to ensure that it has the necessary rights in its content to publish the material online. Just because a publisher has the right to publish content in the print edition of a magazine does not automatically mean that it has the right to publish that content in a corresponding online version. In publishing online, the publisher is exercising a different copyright right to publishing in print, namely the right to "communicate [the material] to the public". Any content licence should therefore expressly include the right to publish or communicate the material online. The scope of the online licence could be for a limited duration, or might allow publication in defined electronic "issues" that correspond to particular print issues.

Situations in which a Licence may not be required

So does a publisher need to obtain a licence for all material that they have not created themselves, before posting it to a website? The Copyright Act 1968 does permit the unlicensed use of copyright material in certain limited circumstances, if such use can be shown to constitute "fair dealing" within the meaning of the Act. Fair dealing exceptions include use for the purpose of reporting news, for criticism and review, and, more recently, for parody or satire.2

Fair Dealing for the purpose of Reporting News

The "reporting of news" exception in particular tends to crop up in an online environment, where many websites have a "News" section. What constitutes "news" is not rigidly defined, although courts have tended not to imply any special meanings to the term, rather expressing the view that the reporting of any event or situation can be "news"3. News doesn't need to relate to a current event, but it does have to have some element that makes it "newsworthy".

It is surprising what turns up in the "News" section of some publishers' websites. Publishers need to be aware that re-packaging entertainment content as "news" is unlikely to bring them within the scope of the exception. For instance, reports on the latest transgression of a well-known professional footballer, or what Reese Witherspoon was wearing at last week's Oscars, are likely to have a sufficient element of newsworthiness. Theoretically a publisher could reproduce content on stories such as this from other sources without permission, subject to that use also being "fair" (an additional requirement discussed below). On the other hand, posting a snippet from a popular television show under the "News" tab, or linking to an infamous YouTube video that is doing the rounds on the Internet, are examples of subject matter that is probably not properly classified as news. Ask yourself if the copyright owner of the content you are reproducing is likely to feel entitled to a licence fee for the use you want to undertake, and keep in mind the old adage that "if its worth copying, its worth protecting". While these aren't legal tests, they are good rules of thumb that often point you in the right direction legally.

Criticism and Review

Similarly, to successfully rely on the "criticism and review" defence, a user must show that what they did genuinely involved analysing or judging the quality of the work, or passing judgment on it. In a television context, the difficulties involved in applying this defence were demonstrated by the court decisions in the "Panel" cases between Channel Nine and Channel Ten, in which Ten 's "The Panel" ostensibly critiqued excerpts from a number of Nine programs. In a number of instances, it was held that Ten's real purpose was entertainment, or "poking fun" at either Channel Nine or the subjects of the programs, rather than genuine criticism and review. The legal principles are no different in the context of online publishing.

Fair in all the Circumstances

Even if you can show that you have, for instance, genuinely used material for reporting of news, or criticism and review, your use still needs to be "fair" in all the circumstances. Providing appropriate credit to the source goes along way to satisfying this element, so if you have taken a news item from another publisher, a credit that is reasonably proximate to the content itself should be given.

Linking

We have mentioned above the prevalence of websites linking to other sites, or alternatively, content from other sites being "embedded" into a publisher's website. Copyright issues aside, if this is done without permission of the other site, a publisher risks breaching trade practices law relating to misleading and deceptive conduct. Such conduct could occur for instance if the manner in which a link was displayed on a website implied the permission of, or an association with, the other site. Content from sources such as YouTube, MySpace and other "social networking" sites seem immensely popular in this regard. While the YouTube model is ostensibly founded on the principle of sharing content, a review of YouTube's terms and conditions of use is instructive. Their terms include that users of the website may not distribute any content (including user submissions) without YouTube's permission, and may not use them for any commercial purpose.

No Territorial Boundaries

One major difference in online publishing is its potential to simultaneously reach audiences in many different territories. This throws up a number of legal challenges. Whereas rights are very often licensed on a territory-by-territory basis, making content available on the Internet means that just about anyone in any country can view it and/or download it. The law has wrangled with the issue of "where" something is published when it appears on the Internet. Is it the place from which it was originally uploaded? Is it the location of the ISP where it is hosted? Where these are different, which country's law does one look to and apply? In Australia the High Court established in Dow Jones v Gutnick4 that, at least for defamation purposes, "publication" occurs wherever someone can receive and view material online. This allowed Joseph Gutnick to sue Dow Jones for defamation in Victoria, even though Dow Jones' web server, which hosted the material in question, was located in New Jersey. That principle allows a plaintiff a lot more options in terms of where they can sue publishers for defamation committed online. In practice however, a person aggrieved by defamatory material is likely to have to take action in the territory in which the material is being hosted, at least if the object is to get the material taken down in the short term. The threat of proceedings in New South Wales is less likely to cause an ISP in New Jersey to remove defamatory content than starting proceedings in the ISP's own backyard.

Blogging, Forums and UGC

User-generated content (or "UGC") is increasing in popularity online, and many publishers see it as an untapped source of content, especially given the quality of what someone can produce with a webcam or some graphic design software. And not to mention, it's usually cheap! We have touched on some of the legal issues that arise in this context, including the need for rights acquisition. You still need to have terms and conditions in place between you and the contributor that grant you the right to publish the material.

On another level, the defamation aspects of UGC are substantial. A publisher will be responsible for defamatory remarks published by it, even if it is only reproducing verbatim the comment of a website user. This is particularly dangerous where numerous users participate in an ongoing forum or "chat" session, often without sufficient real-time scrutiny by the publisher. This was illustrated in a recent defamation claim against the publisher of the Daily Telegraph by a number of persons who had provided character references for disgraced Crown prosecutor Patrick Power. While an initial print article referring to them as "Pervert's Mates" sparked the controversy, the claimants in fact took greater exception to allegedly defamatory comments published in reader "blogs" on the Telegraph website. Media reports suggested that the claims were informally resolved with substantial compensation being paid to the claimants.

Footnotes

1. As far as content regulation goes, new laws regulating online content are in the process of being introduced by virtue of the Communications Legislation Amendment (Content Services) Act 2007 (Cth). Previously a lot of online content "fell between the gaps" in the regulatory scheme comprised mainly of the Broadcasting Services Act 1992 (Cth) and the Telecommunications Act 1997 (Cth).

2. Copyright Act ss 41, 41A, 42.

3. See De Garis v Neville Jeffress Pidler Pty Limited (1990) 18 IPR 292.

4. 210 CLR 575.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions