A recent US Court case highlights the dangers of online
and social media opinion and shows that even those who make
anonymous posts on bulletin boards can be held to
In Texas a couple has been awarded a total of almost $14 million
in damages from defendants who were identified after a judge
ordered online company, Topix.com, to hand over internet protocol
The six defendants were found to be responsible for 70% of 179
posts that accused the couple of sexual molestation and drug
pushing – accusations deemed to have caused the couple
mental anguish, loss of reputation and loss of business.
The case highlights the conflict between an individual's
right to freedom of expression and the laws protecting privacy and
reputation. This conflict underpins current legal challenges in
dealing with use of digital media worldwide.
As it stands, there are no uniform global defamation laws,
meaning that plaintiffs can shop for the forum with laws most
likely to favour their legal action.
In 2002 the High Court of Australia ruled that Joseph Gutnick
could sue for defamation in Australia, where the material was
downloaded and read, and that he did not need to go to the US where
the material was produced by Dow Jones. This was the first time
that an Australian court had clarified that if material is
downloaded from the internet on an Australian computer our courts
have jurisdiction, regardless of the material's country of
Apart from the turf war, the 2002 decision was important because
US defamation laws are more liberal, and a case that is winnable in
Australia might be hopeless in the US.
In 2005, and after more than 20 years of prevaricating, the
Australian States and Territories reached agreement on a
restatement of defamation laws that now apply relatively uniformly
throughout Australia. But national uniformity only gets us some of
The Gutnick decision was 10 years ago and while technology has
moved on, and new social media tools such as Facebook and Twitter
have boomed, the law has largely stood still. Our current laws,
which were drafted to cover traditional print and broadcast media,
struggle to deal with social media. In particular, the lightning
speed at which material is passed from one user to another, across
borders, can quickly cause global damage to reputation.
As social media has become more pervasive, other important legal
questions, particularly privacy issues, have emerged.
In recent months we have seen a number of important government
inquiries into the media, including the Finkelstein Report and the
Convergence Review. Meanwhile in the UK, the Leveson Inquiry
It remains to be seen whether this process of scrutiny,
analysis, criticism and self justification will achieve anything.
So far there has been no progress in terms of clarifying the
liability of servers and social media ISP providers, or any real
consideration of whether principles of liability and the ambit of
defences need to be amended to cater for social media.
There are a number of international treaties and conventions
that aim to harmonise key aspects of intellectual property and
copyright laws. It is time for the issues raised by the explosion
of social media technologies to be addressed on a global scale as
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.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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