UNSW Commercial Lawyers Update Adrian Lawrence 27 June 2006 Baker & McKenzie International is a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm. CyberDefamation The Impact of the Uniform Defamation Laws

UNSW Commercial Lawyers Update Agenda 1.Uniform defamation laws - key cyberdefamation issues: jurisdiction online intermediaries 2.Intermediaries - previous Australian position 3.Statutory innocent dissemination defence 4.Position in other major jurisdictions

UNSW Commercial Lawyers Update Uniform defamation laws Previously fragmented by state/territory Proposals to standardise –Federal proposals (March 2004) –State/territory model – SCAG Defamation Act 2005 (NSW) (commenced 1 January 2006) –Now implemented in all states and territories

UNSW Commercial Lawyers Update Uniform defamation laws (cont) Jurisdiction and choice of law in Australian defamation law –Dow Jones v Gutnick (2002 HCt) –Previous forum-shopping –Uniform Defamation Act position: Multiple publications – closest connection test (s 11) Statutory lis alibi pendens rule (s 23)

UNSW Commercial Lawyers Update Online intermediaries Range of levels of “involvement” with publication –Mere “common carrier” –Host –Online publisher of anonymous content Chat room operator Review publisher Blog publisher –Online newspaper/portal publishing third party content

UNSW Commercial Lawyers Update Online intermediaries (cont) “Publication” in defamation law –Breadth of concept –Application in online context: Common carrier: Bunt v Tilley (2006 UK HCt) Frawley v State of NSW (2006 NSW S Ct)

UNSW Commercial Lawyers Update Online intermediaries (cont) Previous law – common law innocent dissemination defence –Three-part test: 1.Innocent of knowledge of defamatory nature of material 2.Nothing in material or circumstances which should have led defendant to suspect it contained a defamation 3.No negligence in dissemination –Thompson v ACTV (1996 – HCt)

UNSW Commercial Lawyers Update Online intermediaries (cont) Previous law: –Broadcasting Services Act 1992 (Cth) Schedule 5 clause 91 Law of state or territory has no effect if –subjects ISP or ICH to liability where not aware of the nature of the Internet content; or –requires ISP or ICH to monitor/make inquiries about or keep records of the Internet content Effect on defamation liability? Federal report (2004) accepts relevance Defamation Act 2005 s 6(2): act does not affect the general law unless provides otherwise

UNSW Commercial Lawyers Update Statutory innocent dissemination Defamation Act 2005 – s 32 –Three-part test: 1.Defendant published matter merely in capacity of a “subordinate distributor” 2.Defendant neither knew, nor ought reasonably to have known, that the matter was defamatory 3.Defendant’s lack of knowledge was not due to negligence

UNSW Commercial Lawyers Update Statutory innocent dissemination (cont) “Subordinate distributor” –Three-part test: 1.Not the “first or primary distributor” 2.Not the author or originator 3.Did not have the capacity to exercise editorial control over the matter before it was first published

UNSW Commercial Lawyers Update Statutory innocent dissemination (cont) “First or primary distributor”: –Will not be considered to be first or primary distributor merely because involved in capacity of: Newsagent, librarian etc Broadcaster of live programme where no effective control Provider of services by means of which matter is made available in electronic form Operator of communications system whereby matter is “made available by another person over whom…the provider has no effective control”

UNSW Commercial Lawyers Update Position in other jurisdictions US –Early cases (Cubby, Stratton Oakmont) –Communications Decency Act 1996 (US) s 230

UNSW Commercial Lawyers Update Position in other jurisdictions (cont) UK –Defamation Act 1996 (UK) s 1 –Godfrey v Demon Internet (2001)

UNSW Commercial Lawyers Update Questions?