overview
issues
australia
practice
justice
studies
offline 1
offline 2
offline 3
online 1
online 2
online 3
incidence
the state
tabloids
money
novels
reviews
gripes
landmarks
related
Guides:
Governance
Hate Speech
Censorship
e-Publishing
related
Profiles:
Email, SMS
& Chat
Blogging
Podcasting
Wiki
|
overview
This profile looks at online defamation, one of the more contentious
areas in the regulation of global information networks.
contents of this profile
The following pages cover -
- issues
- an examination of questions about jurisdictions, free
speech, restrictions on strategic lawsuits against public
participation, responsibility and evolving perceptions of
'cyberlibel'
- australia
- the overall shape of Australian defamation law
- practice
- an introduction to offences and defences in defamation
litigation in Australia
- justice,
truth, money and law - damages, awards and risk management
strategies in Australian defamation law
- studies
- major government reports, industry studies and academic
writing about the law, policy issues and other aspects of
online defamation
- offline
cases 1 - selected offline defamation cases, with links
to the text of individual judicial rulings and specific
commentary in legal journals
- offline
cases 2 - further broadcast and print defamation cases
- offline
cases 3 - further broadcast and print defamation cases
- online
cases 1 - key online defamation cases from 1991 to 2000,
with links to the text of individual judicial rulings and
specific commentary in legal journals
- online
cases 2 - key online defamation cases from 2001 to 2005
- online
cases 3 - more recent online defamation cases
- incidence
- statistics about the number of defamation cases, size
of awards and other data
- the
state and national honour - offences against the state
(or merely against its head)
- tabloids
- selected incidents of apologies and costs/damages payments
by newspapers and by broadcasters
- money
- awards, costs and benchmarks
- novels
- the roman-a-clef and other problems with defamation
in fiction
- reviews
- a special status for professional literary, film and restaurant
criticism?
- gripes
- defamation aspects of consumer 'gripe sites'
- landmarks
- key
events, reports, enactments and judicial decisions in Australia,
New Zealand, the US and elsewhere
defamation in the digital environment
Definitions of defamation - at its simplest a false statement
that subjects an individual to hatred, ridicule or contempt
- vary from jurisdiction to jurisdiction, as do community
expectations and defences such as free speech.
Some brave souls have claimed that cyberspace is - and should
be - a realm in which the free flow of information (correct,
malicious, unpleasant or otherwise) is paramount. Courts in
Australia and elsewhere have disagreed, with considerable
support from legislatures (and, we suspect, from most people).
Since the early 1990s they have ruled that defamation can
occur through email, web pages, broadcasts or other applications
of the global information infrastructure.
The following pages look at key issues - including the responsibility
of internet service providers - and mechanisms such as proposed
global conventions that would reconcile conflicting jurisdictional
claims and legal standards. They consider the landmark court
cases and point to significant online and offline resources.
what is defamation?
Defamation essentially takes two forms - libel (often
characterised as involving a statement in a 'permanent form',
such as a print or online publication or an electronic broadcast)
and slander (typically an oral statement that is not published).
As discussed later in this profile, the definition of defamation
and defences vary from jurisdiction to jurisdiction. However,
defamation broadly involves a statement that tends
to diminish an individual's reputation in the estimation of
others. That diminution may be restricted to the person's
honour or may extend to the individual's capacity to earn
a living or fully participate in society.
In many jurisdictions the author's intention is not of primary
concern: it is enough that a defamatory statement was made
and received by an audience. That audience might be an individual's
professional peers, residents of a small community or people
across a nation.
Defamation law is usually concerned with identifiable individuals
rather than ethnic groups, commercial institutions, government
agencies or other entities. Some regimes, however, have introduced
legislation to inhibit hate-speech,
ie vilification on the grounds of ethnicity, religion, sexual
preference or other attributes/affiliations.
Typically defamation law allows an individual to claim some
redress for a statement that is found to be defamatory.
That redress might be restricted to an apology by those responsible
for the statement, with a publisher for example printing a
retraction acknowledging that the statement was incorrect.
It might extend to the payment of damages that provide recompense
for suffering/loss and that signal society's condemnation
of the statement, with such exemplary damages acting as a
deterrent against republication of the statement or similar
publication.
Many regimes also feature provisions for criminal libel, for
example imprisonment for statements that are considered to
be particularly egregious.
Defamation
regimes recognise that some statements are more damaging or
offensive than others and that provision must be made for
legitimate artistic criticism or other matters. The shape
of that provision varies significantly from nation to nation,
something that as discussed in the following page of this
profile poses challenges in relation to the borderless and
global internet.
Defamation law and practice accordingly embodies different
stances on -
- what
are presented as statements of fact and statements of opinion
- the
context of a statement, with courts generally considering
the overall tone of a piece rather than only the specific
words used
- who
is being defamed, eg senior politicians or other community
leaders in some nations enjoy substantially greater protection
than 'public' figures in the US)
- the
context of the statement, eg in a satirical performance
or in a front page article by a leading newspaper or professional
journal
- defences
such as the public interest
- the
burden of proving the truth of a statement or the extent
of damage to a reputation
As
a result, defamation is arguably the most complex area of
information law, one that is evolving and that involves considerable
uncertainty for authors, publishers, observers and those who
consider that they have been defamed.
Subsequent pages in this profile note that "bare words
alone" may not constitute defamation but in a specific
context might be perceived by courts as having a defamatory
meaning. Differentiation between fact and opinion is sometimes
unclear, with judicial decisions reflecting the presentation
of a statement - tone, conjunction with photos or other items
- rather than merely the substance of the statement. That
is important if truth is the basis for defense of a statement
that is claimed to be fact rather than an opinion.
Most regimes allow a defense of fair comment, with protection
for example of a statement of opinion that is held to be made
in good faith and without malice (encompassing any dishonest
or improper motive rather than merely spite) on a matter of
public interest. Interpretation of what is in the public interest
and the bounds of comedy or critique of politicians, business
figures, academics and others varies widely.
Defamation law is, ultimately, a reflection of a broader legal
system within each nation ... a system where the powerful
generally have greater scope for protecting their reputation
(or merely freezing criticism) and where poor people have
on occasion been traduced without true redress.
Contrary to assertions by some information liberationists,
however, defamation law is not always strongly weighted towards
the great & ungood or an opportunity for unscrupulous
public figures to win the 'libel lottery'. Some of the cases
highlighted later in this profile illustrate the scope for
vexatious action or for implicitly putting the defamed on
trial.
UK lawyer Peter Carter-Ruck famously advised that
To
be certain that you will never be liable to pay damages
for libel, you should refrain from writing, printing or
publishing or distributing any written matter of whatsoever
nature.
Strict
adherence to that advice would of course freeze much of the
web, print media and broadcasting. Some assumption of risk,
along with a duty to act responsibly, is thus inevitable.
next page
(issues in online defamation)
|
|
