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This page highlights online defamation cases in Australia, the US, New Zealand, UK and other jurisdictions from 2001 to 2005.

It covers -

Readers of this site should conduct appropriate research before making their own judgements about circumstances, claims and counter-claims.

subsection heading icon     Loutchansky v Times (UK, 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. Activities mentioned in the articles included 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.

subsection heading icon     Brown, O'Brien and Domainz (NZ, 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.

subsection heading icon     Murray and Friends Reunited (UK, 2002)

Retired UK teacher Jim Murray, a sprightly 68, gained damages and costs in Lincoln County Court over defamatory comments posted on the Friends Reunited site by former pupil Jonathan Spencer. Friends Reunited deleted the comments after Murray was alerted by friends but refused to apologise for the remarks.

subsection heading icon     Batzel and Cremers (US, 2003)

In Batzel v Smith the US federal Ninth Circuit Court of Appeals ruled that Netherlands-based Tom Cremers, operator of the Museum Security Network site and associated listserv, was eligible for immunity under the Commmunications Decency Act (CDA) for content provided by a third party.

Batzel had taken action after Robert Smith provided an email to the listserv claiming that she was a descendant of Heinrich Himmler and possessed looted paintings. Cremers posted that message on the site and listserv, with Batzel filing suit against both men for defamation. The court commented that because Cremer did no more than select and make minor alterations to the email, he could not be considered a content provider.

subsection heading icon     Cullen and cyberstalking (Aust, 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.

subsection heading icon     Robertson v Newsquest (UK, 2004)

Former NATO secretary general Lord Robertson sued Newsquest, publisher of the Glasgow Sunday Herald, in 2003 over a message posted on its readers' forum website. The message featured a false allegation that Robertson was responsible for the 1996 Dunblane homicides. The litigation was settled when he accepted an offer of £25,000 damages, legal expenses and an apology. Publishers were advised to more closely monitor their online fora.

In 2006 Robertson sued over a follow-up article referring to his libel victory. That article allegedly repeated the defamation and portrayed him as "an irrational bully". He is seeking a further £25,000.

subsection heading icon     Gutnick (Aust, 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).

subsection heading icon     Ross and Barrick Gold (Can, 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.

subsection heading icon     Lewis v King (UK, 2003)

In Lennox Lewis & Ors. v Don King (2004 EWCA Civ. 1329) the UK Court of Appeal affirmed a High Court decision that English courts were a proper forum to hear a libel case between two US residents concerning statements published on US-based websites. Controversial figure Don King sued US residents, including Lennox Lewis and attorney Judd Burstein, over the allegedly defamatory statements. The parties agreed that under English law, libel is committed where the publication takes place and that net publications are published at the place where they are downloaded.

The defendants claimed that King was forum shopping, as US law would not permit such an action. The High Court and Court of Appeal rejected that argument on the basis of precedent on forum questions. All parties except Burstein settled prior to the Court of Appeal decision.

subsection heading icon     Jameel and Mahfouz (UK, 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 took the Court of Appeal's decision to the Law Lords, the UK's highest court.

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.

In June 2005 Jameel settled the libel action against the Sunday Times, agreeing to withdraw the case on undisclosed terms and commenting that "the claimant is satisfied that his purpose in bringing these proceedings - the vindication of his reputation - has been achieved".

In October 2006 the House of Lords - in hearing Mohammed Jameel's appeal over the Wall Street Journal Europe decision - unanimously overturned previous rulings. In a judgement interpreted as strengthening protection for investigative journalists, the Law Lords said the WSJE had acted in the public interest when it named Jameel's company as one whose bank accounts had been scrutinised at the request of US law enforcement agencies, even though the claim had been untrue. Lord Hoffmann characterised the article as "a serious contribution in measured tone to a subject of very considerable importance". The Lords said the article was responsible and clearly in the public interest: as such it did not constitute libel.

subsection heading icon     Einstmann v Sharelook (Ger, 2005)

The German court in Einstmann v Sharelook Beteiligungen GmbH (LG Berlin, No. 27 O 45/05)  held that operators of the Sharelook search engine liable for defamatory content in its search results. Searches for "naked" would result in a link to an adult site that featured the name of television personality Babette Einstmann.

The court held that Sharelook was obligated to filter out defamatory content after becoming aware of it.

subsection heading icon     Smith, Totalise and Ice-Red (UK, 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 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.

subsection heading icon     Bangoura and Washington Post (Can, 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.

In September 2005 the Ontario Court of Appeal overturned the Superior Court's decision, noting that

the connection between Ontario and Mr. Bangoura's claim is minimal at best. In fact, there was no connection with Ontario until more than three years after the publication of the articles in question

and concluding that there was no evidence of significant harm in the province. It commented that

it was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later. To hold otherwise would mean that a defendant could be sued almost anywhere in the world based upon where a plaintiff may decide to establish his or her residence long after the publication of the defamation.

In February 2006 the Canadian Supreme Court said that it would not hear a further appeal.

subsection heading icon     Cisneros v Sanchez (US, 2005)

In Cisneros v. Sanchez (2005 WL 3312631, S.D. Tex.) the court failed to accept claims by Sanchez that the CDA entirely preempted Cisneros' action. Sanchez operated a site featuring allegedly defamatory statements regarding Cisneros. The court found that Congress did not intend the CDA to entirely preempt state libel laws and that the CDA only protects a website operator "from being treated as the author of 'information provided by another", thereby not providing a shield for statements authored by Sanchez.

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