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online
cases 2
This page highlights online defamation cases in Australia,
the US, New Zealand, UK and other jurisdictions from 2001
onwards.
It covers -
Readers
of this site should conduct appropriate research before making
their own judgements about circumstances, claims and counter-claims.
Loutchansky (2001)
The 2001 decision
by the English Court of Appeal in Loutchansky v Times
Newspapers is of interest for the UK court's stance on
questions of qualified privilege in longterm access to archived
online publications.
High profile Russian businessman Grigori Loutchansky, who
had a residence in the UK, was alleged in two London Times
articles in 1999 to have a possible link with Russian organised
crime. The articles activities, including money laundering
throughout Europe and the smuggling of nuclear weapons. The
articles appeared in print and were available globally through
the paper's site for some time.
In responding to action by Loutchansky the Times
claim the defence of qualified privilege, arguing that it
had a duty to publish in the public interest, was without
malice and had acted responsibly through for example reliance
on credible sources although unable to prove its allegations
were true. The court accepted that defence regarding the print
edition of the articles but took a different stance regarding
the archived online edition.
It indicated that the newspaper had failed to act responsibly,
as the articles had remained online for over a year without
any indication that they were the subject of litigation.
Consistent with the 2000 ruling by the House of Lords in Berezovsky
v Forbes it rejected the notion of 'single publication'
with action regarding a defamatory statement to be tied to
a single jurisdiction and initial availability, in contrast
to the concept of action in multiple jurisdictions whenever
the statement was sighted by a new reader. Action by Loutchansky,
argued the Times, should be restricted under English
limitation rules to the twelve months from initial availability.
The court noted concerns that publishers of online archives
would to be "indefinitely vulnerable" to defamation
action whenever a new reader accessed an article, undermining
the freedom of expression guaranteed by the European Convention
on Human Rights. It suggested that publishers could generally
protect themselves through inclusion of an appropriate disclaimer
if online archival content was feared to be potentially defamatory.
Brown, O'Brien and Domainz (2001)
New Zealand recognition that the net is not outside defamation
law was reinforced by O'Brien v Brown.
Dot-nz operator Domainz provided
a newsgroup as a discussion forum for members. Email posted
to that list was also publicly accessible via the ISOC NZ
website. Manawatu ISP director Alan Brown, who had attracted
attention for operation of the ORBS blacklist service, posted
vehement messages criticising Domainz chief executive O'Brien,
including calls for investigation by the NZ serious fraud
squad.
Notably those messages continued after O'Brien's lawyers requested
an apology and costs: three further posts by Brown claimed
defences of qualified privilege, truth and honest opinion
as justification. At trial he argued that the forum's rationale
was promotion of healthy discussion, that he had not been
animated by malice and that he had been seeking to elicit
public comments from O'Brien.
The District Court disagreed, with the judge commenting that
I
must say I know of no forum in which an individual citizen
has the freedom to say what he likes and in any manner he
wishes about another individual citizen with immunity from
suit for all consequences.
Brown
was ordered to pay O'Brien damages of NZ$30,000 plus an additional
NZ$12,000 for "outrageous" conduct. The judge commented
that Brown was "grossly mistaken" if he believed
that there was a greater freedom by emailing a discussion
group than through another method of publication. Defamation
law clearly applied to the net in New Zealand and elsewhere.
In questioning comments about good faith the judge noted that
the defamatory statements "were published far more widely
than merely to ISOCNZ members, or potentially so" through
the web, that there had been no attempt to separate fact and
opinion and that when Brown was offered the chance to apologise
he responded by making further defamatory allegations.
O'Brien's victory may have been bittersweet: Brown reportedly
commented that
At
the moment I've got a net worth of about $500. If I could
afford $42,000, then I could have afforded a lawyer.
Batzel and Cremers (2003)
[under development]
Cullen (2003)
In 2003 the Supreme Court of Western Australia reinforced
the Rindos decision in awarding
local academic Dr Trevor Cullen $70,000 in compensatory damages
(and a further $25,000 exemplary damages) for defamatory statements
published by US resident Bill White in over 60 hate
sites hosted outside Australia.
White appears to have conducted a vendetta against Cullen
and associated, with ID theft,
defamatory emails and offensive content (including purported
'admissions' by Cullen of paedophilia and claims of fraud)
featured in various sites and in the domain
names of some sites.
The Court held that
The
conduct of the defendant can be attributed only to a conscious
desire on his part to cause the plaintiff the maximum amount
of damage, hurt and embarrassment by what amounts to a campaign
of deliberately offensive vilification.
White
did not defend his statements. However, as Julie Dare notes
in her insightful discussion of the case
Despite
the Court's finding of false imputations arising from defamatory
words published on the Internet, and acknowledgment of the
very great damage caused to the plaintiff, Dr Trevor Cullen,
many of the defamatory web sites can still be accessed on
the Net almost 12 months after the judgment.
It
is unlikely that Cullen will collect the well-deserved damages
from his cyberstalker. The proliferation of sites - and hosting
in jurisdictions such as Pakistan - means that he (and others
defamed by White) face difficulty in taking them offline.
One observer commented that "the physical stalker has
to sleep sometime, but these guys never do". Because
the sites defame but do not physically threaten, White's publishing
activity does not breach US cyberstalking enactments which
would require removal by hosting
services.
Gutnick (2004)
Action by Australian entrepreneur Joseph Gutnick
against US publisher Dow Jones (parent of the Wall Street
Journal and Barron's business magazine) attracted
attention in Australia and overseas over questions of jurisdiction
and the readership of the offensive statement.
In 2000 the print and online editions of Barron's
featured an article titled 'Unholy Gains', alleging that Gutnick
was a customer of convicted tax evader and money launderer
Nachum Goldberg. Gutnick argued that there was an imputation
that he "was masquerading as a reputable citizen when
he was a tax evader who had laundered large amounts of money
through Goldberg, and bought his silence". The online
statement was globally accessible by Barron's subscribers,
including a handful of people in Melbourne.
Gutnick sued Dow Jones for defamation in Australia, with action
in the Victorian (ie state) Supreme Court. Dow Jones unsuccessfully
argued that litigation should take place in the US, rather
than in Australia, as publication took place where the online
version of the statement was uploaded (ie its server in New
Jersey) rather than in each jurisdiction where it was downloaded
(eg in Melbourne).
Justice Hedigan of the Victorian court concluded in 2001 that
the article had been published in Victoria - given common
law that "defamatory matter is published in each place
in which it is read, seen … heard" - and had been
authorised by Dow Jones as online access was determined by
individual passwords. Action by Gutnick should appropriately
be heard by the Victorian court.
Dow Jones was granted
special leave to appeal that decision to the High Court, which
unanimously dismissed the appeal in December 2002, ruling
that an online publication was unavailable
in
comprehensible form until downloaded on to the computer
of a person who has used a web browser to pull the material
from the web server. It is where that person downloads the
material that the damage to reputation may be done. Ordinarily
then, that will be the place where the tort of defamation
is committed.
The High Court noted that Gutnick had objected to publication
of the article only in Victoria and that the state Supreme
Court was a competent authority; the case could accordingly
proceed in Victoria. The decision would be more difficult
if Gutnick had alleged an injury to his reputation in several
jurisdictions, which as in the print environment might involve
discrete litigation in each of those jurisdictions.
As noted earlier in this profile, the assertion of Australian
jurisdiction was widely (if sometimes problematically) criticised.
The Wall Street Journal featured the claim that the
High Court's decision put "at risk the ability of Americans
to speak with each other and be protected by American law
when they do so", eliciting rejoinders that the First
Amendment has not extended to Australia and other jurisdictions
in the print environment. Justice Callinan of the High Court
had commented that
Publishers
are not obliged to publish on the Internet. If the potential
reach is uncontrollable then the greater the need to exercise
care in publication
Some
critics warned of potential abuses, with Australian-based
online publishers potentially facing litigation in jurisdictions
across the world.
Others worried that international acceptance of the Australian
decision would result in self-censorship (only the "judgment-proof"
and "the wealthiest enterprises, able to afford any legal
charges, will be able to publish on the internet"), use
of geolocation technologies
to restrict access in 'high risk' jurisdictions, an extension
of existing forum shopping, unacceptable uncertainty or -
an echo of laments about the print environment - discriminatory
treatment with publishers concentrating negative coverage
on those too poor or unpopular to sue.
Justice Kirby had cogently warned against some of the hyperbole,
commenting that
Apart
from anything else, the costs and practicalities of bringing
proceedings against a foreign publisher will usually be
a sufficient impediment to discourage even the most intrepid
of litigants. Further, in many cases of this kind, where
the publisher is said to have no presence or assets in the
jurisdiction, it may choose simply to ignore the proceedings.
It may save its contest to the courts of its own jurisdiction
until an attempt is later made to enforce there the judgment
obtained in the foreign trial. It may do this especially
if that judgment was secured by the application of laws,
the enforcement of which would be regarded as unconstitutional
or otherwise offensive to a different legal culture.
The
case was subsequently settled out of court, with lawyers for
Dow Jones reading a statement indicating there was no reason
to believe Gutnick was a customer of Goldberg or had any criminal
or improper relations with him. He received $180,000 as a
settlement, with a further $400,000 in costs.
Gutnick commented that his reputation had been completely
vindicated.
The
accusations they made have proved to be wrong. It's taken
four years for them to do it but I felt when that accusation
was made that I had to fight it to the end, which I did.
He
also criticised Dow Jones for challenges to the proceedings,
saying that the false allegations could have been retracted
at any time. It is worth noting that the publisher's unhappiness
with action in a jurisdiction away from its server was shared
by many of its peers.
'Unholy Gains' author Bill Alpert had meanwhile taken his
case to the UN, with a petition to the UN claiming that the
High Court's decision - by forcing him to face action in Australia
- denied him the right of free speech and thus breached Article
19 of the International Covenant on Civil & Political
Rights (ICCPR).
Ross and Barrick Gold (2004)
The Canadian decision in Ross v. Holley is an echo
of the landmark 1994 Rindos case in Australia discussed
in the preceding page of this profile and strengthens the
Canadian regime, with suggestions that online libel may be
more serious than offline defamation because of 'ubiquitous'
access to the offensive statement.
On 9 November Justice Wailan Low of the Ontario Superior Court
of Justice (OSCJ)
released reasons for the decision, granting the plaintiff
one of the largest damage awards in Canada for online defamation.
The defendant was ordered to pay the plaintiff C$75,000 in
general damages, C$50,000 in aggravated damages and court
costs.
Justice Low found that defendant Pat Holley
used
the medium of e-mail over the Internet to disseminate statements
concerning the plaintiff that disparaged her in her profession.
He imputed dishonest and reprehensible conduct on the part
of the plaintiff in her activities as an archeologist and
scholar.
She
commented that
clearly,
the use of e-mail is far more powerful than the sending
out of a multiple of hard-copy letters defaming the plaintiff
Holley
is reported to have sent an email to over 30 people characterising
archaeologist Dr Cheryl Ross as a "grave robber".
Justice Low found that he acted "with an actual malice
and intent to punish and hurt the plaintiff and to destroy
her professional reputation" in a way "calculated
to cause the plaintiff the maximum embarrassment and professional
harm", asking recipients of his email to forward the
message.
Low commented that "the mode and extent of publication
are significant considerations in the assessment of damages
in Internet libel", noting that posting slanderous remarks
on a popular site where millions of users might find and circulate
them was one of the more egregious abuses of technology, followed
by emailing libellous remarks to smear someone's reputation.
Ross' lawyer, quoted in the Toronto Globe & Mail,
said that
People
seem to think there is a level of anonymity to e-mail and
the Internet. And that it's a lawless area. And clearly
it is not, nor should it be.
Low
is reported to have awarded the damages
knowing
it amounted to hitting Mr. Holley for all he was worth,
or very close to it ... in her decision, she said the damages
amounted to 'equivalent to all or a significant portion
of the defendant's assets.
The
ruling follows a June Ontario Court of Appeal decision
about recurrent online defamation, with Jorge Lopehandia ordered
to pay C$125,000 for libelling miner Barrick Gold.
Jameel and Mahfouz (2005)
In 2005 the Court of Appeal in England adopted a
different approach to the Australian High Court in Gutnick
v Dow Jones, throwing
out a defamation action brought by Saudi Arabian magnate Yousef
Jameel against The Wall Street Journal because only
five people - including Jameel's solicitor and two business
associates - accessed the online version of the offensive
item. (In Australia nine people had accessed the Gutnick article.)
Jameel claimed that a March 2003 article on the WSJ
site (removed in July of that year) alleged that he was an
early funder of Osama bin Laden and featured a link to a document
that he said referred to him.
Jameel had separately sued Times Newspapers, responsible for
the London Sunday Times, over similar coverage in
print. His relative Mohammed Jameel was awarded £30,000
damages against the Wall Street Journal Europe in
separate UK High Court action in 2003. Compatriot Saudi Sheikh
Khalid Bin Mahfouz
secured substantial damages from Pluto Press in the UK over
the false suggestion in Michael Griffin's 2003 Reaping
the Whirlwind that he was a relative by marriage of Osama
bin Laden and a supporter of terrorism, the US Treasury Department
having named the Muwaffaq Foundation as an Al Qaeda front.
Lord Phillips, master of the rolls, ruled that web publishers
could not be sued in the English courts unless there was a
"substantial publication" in England, commenting
that
It
would be an abuse of process to continue to commit the resources
of the English court, including substantial judge and possibly
jury time, to an action where so little is now seen to be
at stake
and
that damage to Jameel's reputation had been "minimal".
A jury could accordingly only be directed to award "very
modest damages" after what would inevitably be an expensive
and lengthy trial, so that
The
cost of the exercise will have been out of all proportion
to what has been achieved. The game will not merely have
been not worth the candle, it will not have been worth the
wick.
The
price of candles or justice may not be an issue to someone
who values his honour and, as a 'petro-billionaire', has the
money for the best QCs in town.
Smith, Totalise and Ice-Red (2005)
In 2005 Terry Smith and London financial services group Collins
Stewart Tullett (CST)
won "substantial" damages in a UK court from Jeremy
Benjamin, a fund manager who posted false allegations on the
US-based Motley Fool site
in 2003 under the 'analyser71' pseudonym. The claims featured
"serious allegations of criminal and dishonest financial
wrongdoing by Mr Smith and the claimant companies", with
a "grave slur on Mr Smith's personal and professional
integrity".
CST initially sought £230 million damages, having earlier
taken action
over an article in the Financial Times during 2003
regarding a claim for wrongful dismissal by former analyst
James Middleweek.
Benjamin was traced after Smith's lawyers won a court order
forcing Motley Fool to reveal information about 'analyser71',
including the address of his computer (traced to his then
employer) and his email address. Precedents for that disclosure
were provided in alleged defamation of Totalise plc on Motley
Fool and in action during 2001 by E-silkroad against IceRed.com
in Hong Kong.
Smith's lawyers established that the bulletin board postings
were viewed from 49 computers before removal by Motley Fool,
arguing that the small number did not diminish the seriousness
of the libel.
Forty nine may not seem to be a large number, but they could
have been 49 influential people in financial services and
they could have copied the messages and sent them to other
influential people
In
addition to undisclosed damages Mr Benjamin agreed to pay
the plaintiff's legal costs.
Motley Fool commented
that
We
allow people who abide by our Terms of Use to post on our
discussion boards, with many users choosing to use a pseudonym
or nickname. Using such a name protects the privacy of the
person posting, but does not give them any protection from
the law. This case is a timely reminder to all of us that
the law on defamation applies as much on the internet as
it does elsewhere.
Smith and CST subsequently won damages and legal costs from
Middleweek's former solicitor, who conceded responsibility
for the media receiving a defamatory dossier about the dispute.
Bangoura and Washington Post (2005)
Canada's version of the Gutnick case is defamation action
by Cheickh Bangoura (a native of Guinea who is now a Canadian
citizen) against the Washington Post regarding its
online archive.
Bangoura claims that he was defamed in two 1997 Post
articles reporting allegations by colleagues that he was guilty
of sexual harassment, financial improprieties and nepotism
while working as senior official of United Nations' International
Drug Control Program in Africa and Austria. Bangoura lost
his UN job shortly after articles were published but was later
cleared by a UN investigation.
In 2004 an Ontario judge agreed to hear his libel case against
the Post and individual journalists. (The defendants
apparently initially included the UN.) Bangoura had lived
in Canada since 1996, becoming a citizen in 2001. He initiated
action for C$5.5m damages, despite the seven years since initial
publication, on the grounds that the articles can still be
accessed online by Canadian users.
The judge ruled
that
the
defendants have no connection to Ontario, but the Washington
Post is a major newspaper in the capital of the most
powerful country in a world now made figuratively smaller
by, inter alia, the Internet. Few well-informed North Americans
(including Canadians) do not encounter, at least indirectly,
views expressed in the Post. The Post
is often spoken of in the same breath as the New York
Times and the London Telegraph.
Frankly, the defendants should have reasonably foreseen
that the story would follow the plaintiff wherever he resided.
He commented that
I
would be surprised if [the Post was] not insured
for damages for libel or defamation anywhere in the world,
and if it is not, then it should be
and
that an editor "does not put an article on the Internet
if he does not wish to reach a large audience".
The
key argument advanced by the Post is based on a
case known as New York Times Co v Sullivan, 376 U.S. 254
(1964), where the court refused to enforce British libel
judgments on the ground that British libel law is repugnant
to the policies of the U.S.A. Our courts do not share the
American view that British libel law, which is similar to
our own, is any less civilized than the American law. ...
The Supreme Court of Victoria (Australia) does not share
the American view either
The Post, with the endorsement of a range of media
organisations, filed an appeal against that ruling in March
2005, arguing that the case should be heard in the US.
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