Law in the Information Age 2.0 Research Paper

Introduction

Many jurisdictions around the world have different laws regarding defamation. These laws protect people from wrongful representation through the publication of defamatory, slanderous, or harmful information.1 Most civil law jurisdictions around the world treat defamation cases, not as civil cases, but as criminal cases.2

However, some advocates for freedom of speech (including the United Nations Commission on Human rights) have not supported the association of defamation cases with criminal offences. In fact, the United Nations Commission on Human right believes that the conceptualization of defamation as a criminal offence violates people’s freedom of expression as stipulated under Article 19 of the International Covenant on civil and political Rights.3

There is a debate in Australia regarding the role of defamation laws to protect the freedom of expression and people’s reputation from unfair damage.4 Recent changes in technology have brought more attention to the above debate because technological development has redefined the way information dissipates in the society.

The increased use of new technology has created new concerns regarding whether it is critical to change the legal framework and practices surrounding defamation laws and regulation, or not.

This paper proposes that Australia needs to create a new legal framework to address new challenges brought by web 2.0 services. Issues of jurisdiction, privacy, and enforcement appear in this debate.

Finally, this paper shows that Australia’s defamation laws are too strict to maintain a proper balance between the freedom of expression and defamation. Consequently, this paper proposes the creation of a practicable balance between the freedom of expression and defamation laws.

Freedom of Speech

Australians do not enjoy the same legal protection regarding the freedom of speech as other developed countries do.5 The lack of proper legal protection of the freedom of speech in Australia has prompted some observers to advance the opinion that the freedom of speech only exists to the extent that there is no law restricting it.6 To this extent, people have challenged Australian courts to stipulate if the government’s effort to restrict freedoms of speech is valid, or not.7

Legal Restrictions on Free Speech

Albeit the freedom of speech remains an important freedom in not only Australia but also the rest of the world, a few legal restrictions on free speech exists. One such restriction is defamation.

Defamation: defamation is a legal restriction to the freedom of speech because it curtails the ability of people to express their opinions freely. In the past, defamation laws in Australia varied with every state.8 However, recent legal developments, which occurred in 2005, created a standard application of defamation laws throughout the country.9

Before the introduction of the uniform defamation laws, the main legal defences in defamation proceedings varied across different states. The common legal defences were truth, fairness, and the publication of accurate reports of public interest. Nonetheless, unlike America, there has not been any public figure test to evaluate the application of the new defamation laws in Australia.

For a long time, some people have perceived defamation laws as a threat to the freedom of the media and the freedom to engage in political debates. This opinion prevails because some people and groups use defamation laws to prevent or intimidate the media, individuals, and groups against speaking about issues, or even people.

Since the courts define defamation laws geographically, the introduction of technology has complicated the application and enforcement of these laws.10 The main area of contention is the ability of technology to transcend geographical borders.

For example, a recent case by Dow Jones and Company Inc. v Gutnick case involved the geographical application of defamation laws in two different countries.11 In detail, the case involved the use of materials regarding Victoria, but downloaded from America. Dow Jones and Company claimed that Australia’s defamation laws were not applicable here, but Gutnick claimed that Australian laws were applicable in the case. The court ruled that the case was subject to Victoria’s defamation laws and not America’s defamation laws.

From the above case, it is difficult to apply or enforce defamation laws on online content because they do not have a geographic jurisdiction.12 This difficulty in enforcing and applying defamation laws sharply contrasts previous concerns regarding defamation cases in television or print media. In other words, it was easier to enforce and apply defamation laws across various forms of conventional media because traditional media platforms are structured and easier to control.

However, the introduction of uniform defamation laws has introduced new defences against defamation, which makes it easier for people to defend themselves against defamation cases. For example, truth alone is now enough legal defence against defamation proceedings.13 Therefore, people do not have to experience the burden of further proving that their subject matter was of public interest.

A new addition to the new defamation cases stem from the stable legal environment that the new laws have created. For example, it is now easier to use uniform criteria for identifying defamation cases.14 Therefore, subjects of defamation cases, and the people who generate information, understand the definition of defamatory materials and any legal defences that they can use in legal proceedings. Through these legal advances, the law reintroduces the common law approach to understanding defamatory cases and claims.

Despite the legal advancements of defamation laws, Australian defamation laws are more oppressive than other democratic societies. However, it is crucial to say that Australian defamation laws have improved since the courts acknowledged the freedom of political communication.

Nevertheless, the Australian law still fails to provide proper legal protection against liabilities that may arise even when authors take necessary caution to communicate issues of public concern. One issue, which proponents of free speech use to fight defamation law, is the deterrent created by these laws to engage in free speech because of the excessive costs associated with litigation.15

Usually, the costs of litigation are very high (millions of dollars). Similarly, the costs of penalties are equally high (hundreds of thousands of dollars). However, the introduction of uniform defamation laws has created a new cap on the awarding of legal damages ($250,000).16 The court exceeds this cap only under aggravated circumstances.

The excesses of Australia’s defamation laws manifest in a recent court ruling, where the court ordered Google to pay damages amounting to $208,000 to an entertainment promoter (Milorad Trkulja), who Goggle linked to gangster activities in Melbourne.17 Trkulja claimed that Google wrongfully published information on its online platform by associating his image with gangster and mob activities.

Therefore, whenever people searched for Trkulja’s name, they would find his name associated with gangster activities in Australia. Trkulja claimed that most of his businesses depended on his public image and therefore, the slanderous depiction of his persona as a gangster mob leader dented his image. He consequently claimed that he had suffered severe damages from the publication of slanderous articles online.

Google claimed that it only availed information from other people (it did not write them). Google also claimed that it innocently published such materials not because of malice, but rather, as an act to provide what other authors had written about Trkulja. However, the court ruled against Google and found the internet giant guilty of defamation.

The Court claimed that Google never acted on Trkulja’s concern since 2009. The Court similarly perceived Google’s role in the entire scandal as an agent of defamation (as libraries and other media agents have done in the past). The court made this ruling for purposes of Australian defamation laws.

Based on the above case, the strictness of Australian defamation laws on internet content and information generation is severe. In fact, the above case shows the capacity of the law in pursuing third party agents, who are not the original authors of media content. In the above case, the court found Google guilty of having the intention to publish slanderous media content, based on the product of its search request process.

For being an agent of defamation by providing slanderous information to the public, the court ordered it to pay damages. Therefore, through this case, it is easy to see the scope of the Australian defamation laws and the threat it poses, not only to people who generate information, but also to those who distribute them.

To this extent, Australian defamation laws not only threaten the freedom of expression but also threaten individuals involved in the dissemination of slanderous information.

Nonetheless, the new legal provisions in Australia’s defamation laws have eliminated exemplary and excessively punitive damages in civil proceedings that involve defamation claims. Despite these legal advancements, it is still too early to establish if the new laws will protect the rights of authors who publish or write materials. Mainly, the way the courts approach this matter defines how effective the new laws will be.

Restrictions on Information Creators

Broadly, Australian information generators have enjoyed some freedom when reporting or writing about different social issues. However, during war times, the government limits this freedom. In fact, recent years have seen an increase in the number of attempts that the government has tried to limit the freedoms of expression through legal statutes that have censored the media.

For example, in 2006, the government successfully closed an internet website that created a satire of the Prime Minister’s website. The government shut down the website after citing concerns about intellectual property. A few years later, the government equally closed a television comedy show on ABC, which it perceived to condone antigovernment sentiments.

The vocal announcement by a government senator regarding the existing conflict of interest by one of the show’s co-host, who appeared in political campaigns, preceded attempts to shut down the show. Similarly, when these events occurred, ABC network also announced that it had abandoned plans to publish an autobiography about Allan Jones, who was a friend of the government.

Accusations of defamation surrounded the abandonment of the book launch plan because ABC feared that the publication of the book might lead to a change in the public perception of the subject. These are a few examples of the government’s attempt to use defamation to limit free speech.

Contempt of Court

Normally, people are discouraged from talking about court matters because their remarks or comments may mean a fair trial would not occur. Therefore, the principle of contempt prevents people from talking about matters that are before the courts. This way, the courts prevent the occurrence of a public/media trial.

Some information that may be considered prejudicial include the publication of details of prior trial, creation of an adverse impression of the accused, making statements about the guilt or innocence of the accused, and the identification of an accused person (when the identification of the accused is a problem).

In Mustard v Woodside Energy (a big gas company) case, Ms. Mustard launched a sexual harassment claim against her former company for sidelining her in professional duties, after taking a maternity leave. Initially, Mustard was a very valued employee who held a senior position at Woodside Energy. In fact, she supervised most of the commercial contracts for the company.18

This claim prompted Woodside Energy to pay her $170,000 in damages. However, the case quickly turned into a defamation suit against Woodside Energy when Mustard went public after claiming that the sexual harassment case against her company ended. In a rejoinder, the company sent a press statement claiming that the suit was not finalised, and that the case was still ongoing.

Afterwards, Mustard filed a case in the federal court when both parties failed to agree on the details of the issue. In the case, Mustard sought $50,000 in damages from here former company (for defamation) and a letter of apology from here employer as well. Mustard claimed that the company had made defamatory statements against her, during the sexual harassment case, and at a company seminar in 2010.

After a preliminary assessment of the case, both parties agreed on a private settlement, which required both parties not to disclose their terms of agreement. This provision made it impossible to disclose further details surrounding the case.

This case highlights an example of how the law of contempt acts as a way to limit the freedoms of expression because the company did not want Ms. Mustard to engage in further discussions about the case. To this extent, the company used the law of contempt to limit Mustard’s freedom of expression. It is therefore difficult to know any further details surrounding the case.

Some people use the above legal provisions to curtail the freedom of free speech. Therefore, it has become increasingly difficult for people to publish media content about matters that are before the court. People can use this legal provision to prevent public debate concerning issues they want to conceal, by simply saying the matter is prejudicial.

However, public concern may be a defence in such situations. In fact, as legal experts would say, it is difficult to invoke such a defence if the matter closely touches on the actual subject of the matter. Therefore, broadly, the law of contempt prevents public trials of incidental or unintended remarks, as opposed to the prevention of public trials regarding specific issues in a trial.

Censorship and Obscenity

Some people use censorship and obscenity concerns as restrictions to the freedom of speech. These restrictions are contained in Australia’s criminal law, which stipulates that the publication of indecent or obscene materials amount to a criminal act.19 However, the main legal problem surrounding the application of this law is the lack of proper definition regarding what constitutes an indecent or obscene material.

Consequently, the courts usually depend on traditional tests to determine indecency or obscenity. Community standards regarding this classification often act as the standard of measure. The court receives few cases regarding obscenity and indecency, but the few prosecutions do not undermine the number of cases that law enforcers have filed against people who publish obscene or indecent materials.

Often, many people have taken private decisions to withdraw or regulate their media content so that they do not face such legal actions. The most recent case involving the use of obscenity as a limitation of free speech occurred when the government seized a book of photographs by Robert Mapplethorpe in South Australia. The Classification Board thereafter reclassified the contents of the book.20

The Catholic Church had similarly tried to prevent the National Gallery of Victoria from publishing the Serrano Photograph, Piss Christ. This case reintroduced the notion of blasphemous libel, which many people thought was obsolete. The court reviewed the matter by considering if blasphemy constituted part of the laws of Victoria. The court did not finalise this issue.

The classifications of media content constitute the most comprehensive form of regulation of speech or expression. Often, the principle of classification aims to determine the age appropriateness of media content. The underlying principle here outlines the ability of adults to discuss, see, and talk about any matter, but limits the opportunities for the exposure of adult content to children.21

However, the internet age has transcended these traditional classifications because minors equally access information the same way adults do.22 Through this development, it is vital to re-examine the legal framework for the classification of media contents.

Interestingly, countries, which have tried to re-examine their internet regulation laws, such as, America, have received backlash from people who want to protect the gains of the First Amendment.23 Therefore, restrictions on media content are quickly gaining the tag of a government’s attempt to regulate free speech.

Conclusion

Australia’s defamation laws and the freedom of speech clash. Even though there needs to be e careful balance between defamation laws and freedom of speech, this balance has not always been ideal. There is a strong weakness in the protection of freedom of speech in Australia because of the lack of a strong legal framework that the courts can use.

Consequently, compared to other developed nations, Australia’s protection of the freedom of speech is relatively weak. To this extent, the government has limited the freedom of speech through directives and similar legal provisions limiting people’s scope to express their opinions. The closure of an internet website mimicking the Prime minister’s official website provides reasonable evidence of the limitation of the freedom of speech in Australia.

The expansive scope of Australia’s defamation laws also stifles public debate concerning different issues because, as the Trkulja v Google case shows, Australia’s defamation laws victimises not only those who generate information but also agents who distribute this information.

The wide scopes of Australia’s defamation laws therefore create an intimidating environment to individuals who generate information because they always feel threatened by the fear of litigation. To this extent, defamation laws are insensitive to information that is availed to the public, even when authors take proper caution when distributing such information.

The harsh defamation laws do not however underscore the numerous legal arguments, which people who want to stifle public debate can use. Defamation laws already pose a limitation to people who would want to engage freely in public debates.

The law of contempt and concerns about indecency and obscenity also poses significant challenges to the exercise of free speech. The Mustard v Woodside Energy case already shows how the law of contempt stifled public debate concerning the case. Comprehensively, therefore, there is little protection from Australia’s defamation laws concerning free speech.

The courts therefore need to provide more legal protection to free speech crusaders so that there is a strong balance between free speech rights and defamation laws. Similarly, the legal framework surrounding defamation cases also needs to be reviewed to address new concerns brought by online communication, such as, privacy concerns, jurisdictional concerns (as shown in the Dow Jones and Company Inc. v Gutnick case) and enforcement concerns (deregulation of the internet).

Annotated Bibliography

Agencies 2012, Google fined in Australia defamation case, viewed 29 December 2012, <http://www.aljazeera.com/news/asiapacific/2012/11/20121112521157975.html>.

Agencies (2012) explain the rigidity of Australia’s defamation laws in cases involving free speech.

Banks, A 2012, Woodside defamation dispute resolved, viewed 29 December 2012, <http://au.news.yahoo.com/thewest/a/-/breaking/15717556/woodside-defamation-dispute-resolved/>.

Banks (2012) explains the use of the law of contempt to stifle public debate. His article highlights a case involving the use of the law of contempt to limit the freedom of speech.

Blitt, R 2011, The Bottom up Journey of “Defamation of Religion” from Muslim States to the United Nations, Emerald Group Publishing Limited, London.

Blitt (2011) focuses on the debate surrounding the implementation of defamation laws and its limitations on the freedom of expression. His article shows the criticisms regarding defamation laws.

Communications Law Centre 2012, Free speech and defamation pre 2010, viewed 29 December 2012, <http://www.law.uts.edu.au/comslaw/factsheets/archivedfactsheets/freespeechanddefamationpre2010.html>.

Communications Law Centre (2012) highlights how several legal provisions in Australia limit free speech.

Doyle, C 2005, Privacy Law in Australia. Federation Press, Sydney.

The scope of this article focuses on privacy laws and their clash with free speech.

Electronic Frontiers Australia 2006, Defamation Laws & the Internet, viewed 29 December 2012, <https://www.efa.org.au/Issues/Censor/defamation.html#cases>.

Electronic Frontiers Australia (2006) focuses on how the internet has affected defamation laws in Australia.

Fryd, H 2012, Scandalous!: 50 Shocking Events You Should Know About, Houghton Mifflin Harcourt, San Francisco.

Fryd (2012) highlights different cases concerning past legal events pitting individuals and groups against the government. He shows how the Australian government used obscenity as a legal provision to limit free speech.

Greyson, D 2007, ‘GLBTQ content in comics/graphic novels for teens’, Collection Building, Vol. 26 No, 4, pp. 130 – 134.

This article highlights how media content classification as a limitation of free speech.

Hannabuss, S 2008, ‘Key Concepts in Law’, Library Review, Vol. 57 No. 7, pp. 554 – 555.

Hannabuss (2008) explains the scope of defamation and its constituents. He explores what defamation entails.

Hannabuss, S 2010, ‘Understanding Privacy’, Library Review, Vol. 59 No. 7, pp. 562 – 563.

Hannabuss (2010) highlights the conflict of defamation laws and its association with privacy laws.

Harpwood, V 2008, Modern Tort Law, Taylor & Francis, London.

Harpwood (2008) explains the development of defamation laws in Australia since 2005.

Melkonian, H 2011, Defamation, Libel Tourism and the Speech Act of 2010: The First Amendment Colliding with the Common Law, Cambria Press, New York.

This article focuses on the conflict of defamation laws with the first amendment (safeguarding the freedom of speech).

Nzenza-Campbell, R 2004, ‘Essential Law for Information Professionals’, Library Management, Vol. 25 No. 4, pp. 239 – 239.

This article explains how punitive defamation laws in Australia limit free speech.

O’Neill, N 2004, Retreat from Injustice: Human Rights Law in Australia, Federation Press, Sydney.

O’neil (2004) explains the clash between human rights law and defamation law.

Perry, P 1986, ‘The Law and Defamation: An Australian Case’, Managerial Auditing Journal, Vol. 1 No. 1, pp. 9 – 11.

This article explains how Australian defamation laws worked before their reform in 2005.

Sawer, M 2009, Australia: The State of Democracy, Federation Press, Sydney.

Sawer (2009) explains the new implications of defamation laws in Australia.

Sells, B 2006, ‘Recent developments in internet defamation law’, Journal of International Trade Law and Policy, Vol. 5 No. 1, pp. 1 – 17.

Sells (2006) explains how online developments have affected defamation laws.

Scientific United Nations Educational 2011, Freedom of Connection, Freedom of Expression: The Changing Legal and Regulatory Ecology Shaping the Internet, UNESCO, Paris.

This article explains how the internet has redefined the interaction between defamation and the new freedoms experienced through unregulated internet.

Stoney, M 2003, ‘The problems of jurisdiction to e-commerce – some suggested strategies’, Logistics Information Management, Vol. 16 No. 1, pp. 74 – 80.

Stoney (2003) focuses on the jurisdictional concerns arising from the application of defamation laws in the information age.

Wyatt, A 2011, ‘Copyright concerns triggered by web 2.0 uses’, Reference Services Review, Vol. 39 No, 2, pp. 303 – 317.

Wyatt (2011) focuses on how web 2.0 introduces copyright issues and redefines the application of defamation laws across different jurisdictions.

References

Agencies 2012, Google fined in Australia defamation case, viewed 29 December 2012, <http://www.aljazeera.com/news/asiapacific/2012/11/20121112521157975.html>.

Banks, A 2012, Woodside defamation dispute resolved, viewed 29 December 2012, <http://au.news.yahoo.com/thewest/a/-/breaking/15717556/woodside-defamation-dispute-resolved/>.

Blitt, R 2011, The Bottom up Journey of “Defamation of Religion” from Muslim States to the United Nations, Emerald Group Publishing Limited, London.

Communications Law Centre 2012, Free speech and defamation pre 2010, viewed 29 December 2012, <http://www.law.uts.edu.au/comslaw/factsheets/archivedfactsheets/freespeechanddefamationpre2010.html>.

Doyle, C 2005, Privacy Law in Australia. Federation Press, Sydney.

Electronic Frontiers Australia 2006, Defamation Laws & the Internet, viewed 29 December 2012, <https://www.efa.org.au/Issues/Censor/defamation.html#cases>.

Fryd, H 2012, Scandalous!: 50 Shocking Events You Should Know About, Houghton Mifflin Harcourt, San Francisco.

Greyson, D 2007, ‘GLBTQ content in comics/graphic novels for teens’, Collection Building, Vol. 26 No, 4, pp. 130 – 134.

Hannabuss, S 2008, ‘Key Concepts in Law’, Library Review, Vol. 57 No. 7, pp. 554 – 555.

Hannabuss, S 2010, ‘Understanding Privacy’, Library Review, Vol. 59 No. 7, pp. 562 – 563.

Harpwood, V 2008, Modern Tort Law, Taylor & Francis, London.

Melkonian, H 2011, Defamation, Libel Tourism and the Speech Act of 2010: The First Amendment Colliding with the Common Law, Cambria Press, New York.

Nzenza-Campbell, R 2004, ‘Essential Law for Information Professionals’, Library Management, Vol. 25 No. 4, pp. 239 – 239.

O’Neill, N 2004, Retreat from Injustice: Human Rights Law in Australia, Federation Press, Sydney.

Perry, P 1986, ‘The Law and Defamation: An Australian Case’, Managerial Auditing Journal, Vol. 1 No. 1, pp. 9 – 11.

Sawer, M 2009, Australia: The State of Democracy, Federation Press, Sydney.

Sells, B 2006, ‘Recent developments in internet defamation law’, Journal of International Trade Law and Policy, Vol. 5 No. 1, pp. 1 – 17.

Scientific United Nations Educational 2011, Freedom of Connection, Freedom of Expression: The Changing Legal and Regulatory Ecology Shaping the Internet, UNESCO, Paris.

Stoney, M 2003, ‘The problems of jurisdiction to e-commerce – some suggested strategies’, Logistics Information Management, Vol. 16 No. 1, pp. 74 – 80.

Wyatt, A 2011, ‘Copyright concerns triggered by web 2.0 uses’, Reference Services Review, Vol. 39 No, 2, pp. 303 – 317.

Footnotes

1 H. Stuart 2008, ‘Key Concepts in Law’, Library Review, Vol. 57 No. 7, pp. 554 – 555.

2 S. Berkley 2006, ‘Recent developments in internet defamation law’, Journal of International Trade Law and Policy, Vol. 5 No. 1, pp. 1 – 17.

3 B. Robert 2011, The Bottom up Journey of “Defamation of Religion” from Muslim States to the United Nations, Emerald Group Publishing Limited, London.

4 Peter 1986, p. 56.

5 Communications Law Centre 2012, Free speech and defamation pre 2010, viewed 29 December 2012, <http://www.law.uts.edu.au/comslaw/factsheets/archivedfactsheets/freespeechanddefamationpre2010.html>.

6 Communications Law Centre 2012, p. 1.

7 O. Nick 2004, Retreat from Injustice: Human Rights Law in Australia, Federation Press, Sydney.

8 P. Peter 1986, ‘The Law and Defamation: An Australian Case’, Managerial Auditing Journal, Vol. 1 No. 1, pp. 9 – 11.

9 D. Carolyn 2005, Privacy Law in Australia. Federation Press.

10 S. Mark 2003, ‘The problems of jurisdiction to e-commerce – some suggested strategies’, Logistics Information Management, Vol. 16 No. 1, pp. 74 – 80.

11 Electronic Frontiers Australia 2006, Defamation Laws & the Internet, viewed 29 December 2012, <https://www.efa.org.au/Issues/Censor/defamation.html#cases>.

12 W. Anna 2011, ‘Copyright concerns triggered by web 2.0 uses’, Reference Services Review, Vol. 39 No, 2, pp. 303 – 317.

13 S. Marian 2009, Australia: The State of Democracy, Federation Press, Sydney.

14 H. Vincent 2008, Modern Tort Law, Taylor & Francis, London.

15 N. Raviro 2004, ‘Essential Law for Information Professionals’, Library Management, Vol. 25 No. 4, pp. 239 – 239.

16 Communications Law Centre 2012, p. 1.

17 Agencies 2012, Google fined in Australia defamation case, viewed 29 December 2012, <http://www.aljazeera.com/news/asia-pacific/2012/11/20121112521157975.html>.

18 B. Amanda 2012, Woodside defamation dispute ‘resolved,’ viewed 29 December 2012, <http://au.news.yahoo.com/thewest/a/-/breaking/15717556/woodside-defamation-dispute-resolved/>.

19 H. Stuart 2010, ‘Understanding Privacy’, Library Review, Vol. 59 No. 7, pp. 562 – 563.

20 F. Hallie 2012, Scandalous!: 50 Shocking Events You Should Know About, Houghton Mifflin Harcourt, San Fransisco.

21 G. Devon 2007, ‘GLBTQ content in comics/graphic novels for teens’, Collection Building, Vol. 26 No, 4, pp. 130 – 134.

22 Scientific United Nations Educational 2011, Freedom of Connection, Freedom of Expression: The Changing Legal and Regulatory Ecology Shaping the Internet, UNESCO, Paris.

23 M. Harry 2011, Defamation, Libel Tourism and the Speech Act of 2010: The First Amendment Colliding with the Common Law, Cambria Press, New York.

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