12 - Defamation in cyberspace

Summary

From the beginning, the boundaries of appropriate and acceptable behaviour on the internet have been challenged. The notion of the internet as the last bastion of free speech has produced a general mindset that the laws that bind and regulate social behaviour should not apply in that space. Arguably, the laws that have been most challenged relate to intellectual property rights. However, there has developed a sense that anything written in an electronic forum should somehow be immune from oversight and censure. Courts internationally have disagreed with this view, particularly in the realm of defamation.

There is no universal definition of defamation, and so no one set of common elements that need to be satisfied in all jurisdictions. Articles 17 and 19 of the UN International Covenant on Civil and Political Rights (ICCPR) provide for both freedom of expression and the right to hold opinions, but balance these rights and freedoms with considerations of unlawful interference, privacy and the protection of honour and reputation.

These articles were considered and applied by Kirby J in the internet defamation case of Dow Jones v Gutnick. (The case concerned the reputation of a Melbourne-based businessman, Joseph Gutnick, who alleged that the Dow Jones corporation defamed him by publishing an article titled ‘Unholy Gains’ in Barrons, an international financial magazine. Barrons could be purchased in hardcopy or readers could subscribe online.) According to Kirby J:

any development of the common law of Australia, consistent with such principles, should provide effective legal protection for the honour, reputation and personal privacy of individuals. […]