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Libel online

A new ruling in Australia could restrict free speech across the worldwide web.

Helene Guldberg

Topics Free Speech

The Australian High Court made a ruling on 10 December 2002 that could strike a devastating blow for free speech online.

The court unanimously dismissed an appeal by the New York-based international news service Dow Jones to stop a libel suit, brought by the Australian businessman Joseph Gutnick, from proceeding in the Australian courts.

The case raises questions about the central issue of where something is published in the context of cyberspace. Dow Jones argued that the article’s ‘publication’ occurred in New Jersey, where the article was uploaded – and that therefore the lawsuit should be tried in an American court.

But the ruling allows Gutnick to sue in his home state of Victoria, Australia, where the article was downloaded by Gutnick himself – and where, conveniently, the libel laws are much tougher than in the USA.

The libel laws in Victoria go even further than the restrictive libel laws in England in allowing claimants to bring suits based on their own interpretation of the offending article.

International media organisations are, quite rightly, concerned about the implications of this case. It means that material published on the internet can be deemed to have been published, not just in its country of origin, but in any of the states and countries in which it is read. And anybody who objects to an article published on the web will no doubt be tempted to sue in countries with the harshest libel laws – such as England.

It is not unprecedented for claimants to be given some leeway in deciding where to take their libel suits. As David Hooper explains in Reputations Under Fire: ‘London has become known to many foreign “forum-shoppers” as a town named Sue – a place where you can launder your reputation on the basis of a few sales in the UK of some overseas publication.’

This was a trick used by the late Mirror Group boss Robert Maxwell, who used England’s libel law to sue the New Republic – a journal with fewer than 135 subscribers in the UK compared to a circulation of 98,000 in the USA.

However, until now, the generally accepted principle of libel law is that the choice of country in which a suit is brought (on the basis of material being read there) should only apply to publishers who have some control over where their material is distributed. But when it comes to the internet, publishers, in effect, have no control over where material may be downloaded.

If the Gutnick ruling should become an international standard, publishers would have to take account of the law of every land on Earth. It would effectively become impossible for reporters and editors to establish what legal standards should apply to their articles. The laws of the most censorious governments could end up being applied to material that originated in states with much stronger free speech protection.

It would be a crying shame if the internet’s global reach should be used to allow the use of the most repressive laws to set the standard for all publishing. Subjecting all online material to something like the censorious English libel law would be a blow to free speech everywhere.

What’s wrong with English libel law

The reason England’s courts are so attractive to litigants is clear. In England the law of libel assumes that the words complained of are false and that the claimants reputation is untarnished. The claimant does not have to prove any actual damage of reputation – only that the statement could potentially lower their esteem in the eyes of ‘right-thinking members of the public’. The burden then falls on the defendant to prove that the defamatory words – and their possible interpretations – are true.

In the USA, the landmark ruling of New York Times v Sullivan in 1964 created a public figure defence – making it very difficult for public individuals to sue for libel. In order to succeed, claimants would need to show that not only were the allegations untrue but they were made maliciously or with reckless disregard to the truth.

The American Supreme Court observed that in free debate erroneous statements are inevitable and must be protected – otherwise free expression would not have the ‘breathing space’ it needs and media self-censorship would be inevitable. The fear of not being able to prove the truth of the published words in court, and the recognition of the expense and resources required to do so, would limit public debate.

Read on:

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Topics Free Speech

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