Several recent decisions illustrate that Courts continue to grapple with the legal issues which arise as a result of the use of internet and email technology and the encroachment caused by developments in this technology upon traditional areas of law.
One of the first areas in which this has been tested is through defamation which occurs via the Internet or by Email. Courts have had to consider the threshold jurisdictional question of where matters should be heard when a cause of action arises in "cyberspace" as opposed to in a geographic location.
Australian decisions
Australian Courts have so far been willing to hear claims where it appears that harm may have been suffered within the jurisdiction. The Supreme Courts of Victoria[1] and New South Wales[2] have recently heard matters concerning allegedly defamatory internet and email publications.
At common law it is well settled that publication of defamatory material occurs when and where the content of the publication, whether oral or spoken, is seen and heard (ie, made manifest to) and comprehended by the reader or hearer[3] .
Gutnick v Dow Jones
In the widely publicised case of Gutnick v Dow Jones [4], the Supreme Court of Victoria held that the plaintiff was entitled to institute proceedings for defamation in Victoria. The Court found that although the allegedly defamatory article was made available on the Internet through the defendant's web server in the United States, the material had been downloaded by a number of persons in Victoria. In applying the general principle in relation to publication[5], the Court found that the downloading of the material by readers in Victoria constituted publication in Victoria and that entitled the plaintiff to bring his claim there.
Special leave has been granted for an appeal to the High Court, which should be heard later this year.
Following Gutnick
The decision has been followed recently by the Supreme Court of New South Wales. In Airways Corporation of NZ v Pricewaterhouse Coopers Legal [6], Simpson J was asked to consider an application for preliminary discovery, in which the plaintiffs sought to ascertain the identity of the publishers of allegedly defamatory statements before instituting proceedings. The evidence was that those statements were made by Email and published to two witnesses, both of whom resided in New Zealand. The identity of the author(s) and the transmitter(s) had not been established.
Her Honour was asked to consider whether it was appropriate to commence proceedings in New South Wales, as the evidence disclosed no connection with New South Wales. The defendants sought to rely upon Gutnick to argue that the matters should be heard in New Zealand.
In making the order for preliminary disclosure, Her Honour found that:
1. Gutnick established that "Internet publications take place in the location where they are read and not in the place where they are transmitted" ;
2. on the evidence, as the Email transmissions were received in New Zealand, publication took place in New Zealand; and
3. whilst New Zealand may ultimately be the appropriate forum if the action is to proceed, that could not "be finally determined until the author(s) and/or transmitter(s) of the material is known" .
It is interesting to note that Her Honour was faced with a similar question in the earlier case of Macquarie Bank v Berg [7]. Consistent with her reasoning, in that case she remarked that where a defamatory message is placed on the Internet, defamation may occur in any place where it is accessed. She also pointed out the inconvenient result which this may cause where the law of defamation differs between countries and states.
With some degree of foresight she noted the difficult practical consequence which may arise where a defendant, who may well be entitled to make statements in another jurisdiction, (by posting them to the Internet or through Email), is faced with defending a claim in a jurisdiction where those statements may be defamatory. That is the situation which the Court faced in Gutnick .
Queensland and the UCPR
In Queensland, the Supreme Court has jurisdiction to the extent "that is necessary for the administration of justice in Queensland"[8]. The Court will not lightly refuse to exercise its jurisdiction[9]. However, the refusal to exercise jurisdiction remains within the discretion of the Court and may be exercised in cases such as Voth v. Manildra Flower Mills Pty Ltd [10], where the tort was committed entirely in the United States.
It appears that some further guidance may be taken from rule 124 UCPR. Although the rule is concerned with service of documents, it causes parties to consider whether there is a sufficient nexus to warrant the commencement of an action within the jurisdiction[11]. The Court seems to have identified the relevant question to be: "where does the act giving rise to the claim occur?[12]". However, the position remains unclear as some of the authorities suggest that the fact that damage is suffered in Queensland may not be sufficient to found jurisdiction[13].
Conclusion
Both Gutnick and Airways Corporation of New Zealand support the proposition that any material posted onto the Internet or sent by Email in Australia may be the subject of proceedings anywhere in the world. Conversely, it appears (at least until the High Court hears the appeal in Gutnick ) that Australian Courts are prepared to hear claims where material is downloaded and published in Australia.
The law will remain uncertain at least until the High Court considers the appeal in Gutnick . It is hoped that the Court will take some steps toward resolving the application of traditional legal areas to developments in technology. In particular, the High Court will be asked to determine whether Australian Courts should assume jurisdiction over what are arguably extraterritorial internet disputes.
Regardless of whether the approach taken in Gutnick is a correct application of the existing law, the effect of the decision is that persons who may be otherwise entitled to post material onto the internet may find themselves the subject of an action for defamation anywhere in the world. It may be that legislative intervention (at international level[14]) is required to consider the particular problems generated by the widespread use of electronic media. Otherwise it is not difficult to foresee that the application of traditional legal remedies in a hitech environment may produce an inequitable result.
Footnotes
[1] Gutnick v Dow Jones & Co Inc [2001] VSC 305 Return to text
[2] Airways Corp of NZ Limited v PricewaterhouseCoopers Legal [2002] NSWSC 138 Return to text
[3] Duke of Brunswick and Luneberg v Harmer [1849] 14 QB 184 and see Gutnick at para 60 Return to text
[4] loc cit Return to text
[5] [2002] NSWSC 138 Return to text
[6] loc cit; heard 8 March 2002. Return to text
[7] [1999] NSWSC 526 Return to text
[8] s8 Supreme Court of Queensland Act 1991. Similar provisions apply in other states. See: s 23 Supreme Court Act 1970 NSW; s 85 Constitution Act 1975 Vic; s 48A Australian Capital Territory (Self-Government) Act 1988 (Cth). Note also the Jurisdiction of Courts (Cross-Vesting) Act 1987 Return to text
[9] Oceanic Sun Line Special Shipping Co Inv v. Fay (1988) 165 CLR 197 where the majority thought that a defendant would have to show that the proceedings were vexatious, oppressive or an abuse of process Return to text
[10] (1990) 171 CLR 538 Return to text
[11] Rule 124(1)(a). See also Voth v Manildra Flower Mills Pty Ltd (1990) 171 CLR 538 Return to text
[12] Voth at 566 Return to text
[13] Macgregor v Application Des Gas [1976] Qd R 175. That should be considered in light of the High Court's reasoning in Gorton v ABC (1973) 22 FLR 181. Return to text
[14] Advances in that regard were made at the Hague conference on Private International Law, which considered a draft convention on jurisdiction and foreign judgments in civil and commercial matters. See www.hcch.nl Return to text
April, 2002
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