Should internet publications be subject to pre-suit resolution? What about a US-style Federal Appeals Court to review all freedom of speech of decisions? New South Wales District Court Judge Judith Gibson argues the case for reform in a paper she delivered on 29 November 2010 to the Intellectual Property, Media and Communications Law Roundtable held at UTS.  The paper originally published by the Gazette of Law and Journalism  Part 1 of the paper was posted on 22 February 2011.


As is set out below, I have set out three areas for discussion of reforms that will not require any amendment to the uniform legislation, but which are aimed at reducing the number of cases before the courts to take the pressure off the court system and enable a review of some long-term reforms.

The first of these is a greater use of “action before suit” in internet publications such as blogs or other electronic entries which are capable of alteration or removal and, therefore, remedies that are restorative and speedy, rather than financially compensatory (and, given the choked court system, slow).

2.1 Separate remedies for blog and “non-media” internet publications?

There is a long history of law reform proposals for a right of retraction or some other alternative to damages as a remedy[1], but prior to electronic communication (where text can be deleted or changed and then transmitted to the recipients) this was not very practical. The prospect of going to court to obtain a judgment (which, in those days, was also unlikely to be published) was hardly an attractive one, and given recent opinions about the legal system, would be of even less value today. The problem was that the permanent nature of publication meant that the words could not be recalled. That has all changed with electronic publication.

Defamation legislation should, in my view, be amended to exclude an automatic right of suit for blogs and other publications by non-media defendants which exist solely in electronic form on the internet either as a pre-action suit requirement, or (if pre-suit applications turn out to be a success) entirely. Complaints about allegedly defamatory publications should first go through a complaints procedure set up by internet service providers, perhaps as part of the Global Network Initiative. Internet service providers are corporations which can well afford the cost of setting up self-regulation systems of this nature. Furthermore, as is set out below, they may have no option other than to do so, as there is an increasing tendency to join the internet service provider as a defendant in proceedings.

The impact of electronic publication on defamation law

The principal reason for reform is the increase in defamation litigation for internet publications[2]. The “tidal wave” of defamation cases on the internet[3] is matched by “tidal waves” in other areas of electronic communication e.g. child pornography (R v Sharpe [2001] 1 SCR 45 at [166]; see also “Sentencing Offenders convicted of child pornography and child abuse material offences”, JCR Monograph 34, September 2010, p.  5).  Bloggers are not only being sued for damages, but also being charged with criminal offences.[4] The question of adequate legislation for blogging and internet use is not limited to defamation law, but as this is a discussion on defamation law reform I shall simply note that the issue of liability for internet blogs is part of a much larger problem.

The first problem is that those cases coming before the courts have not yet required judicial interpretation of many of the new issues of fact and law arising from internet publication. In Metropolitan International Schools v Designtechnica [2009] EWHC 1765 (QB) at [35] Eady J commented that it was “surprising how little authority there is within this jurisdiction applying the common law of publication or its modern statutory refinements to internet communications”, and the same is the case in Australia[5].

In Australia there are broadly based defences and immunities which limit the exposure of liability of internet service providers (SIP) and internet content hosts (ICH), notably the Broadcasting Services Act 1992 (Cth) schedule 5 cl 91, which prevails over any State legislative or common law liability for hosting content of which the ISP or ICH was unaware. Problem areas include what “unaware” means, the exclusion of electronic communications such as emails and the very broad common law definition of “publication” which has not changed since Duke of Brunswick v Hamer (1849) 14 QB 185. Courts initially saw the internet as something permanent, and the damage to reputation as indelible as in print publications. However, not only is electronic text capable of change, but the sheer bulk of it, and the constant addition of new material, has led to fundamental changes in readership patterns. The ordinary reasonable reader of the internet today would be a more cynical, and better informed, person than the man on the Clapham omnibus, and the time has come for remedies which take this into account.

Alternate remedies for electronic publications – corrections or withdrawals of allegedly defamatory material

Since any legislation for pre-action requests for correction or to exclude such publications from claims under the uniform legislation would be a far-reaching change and require implementation on an international scale, I shall start by setting out what others have had to say about proposals for alternative remedies for internet publications:

(a) Mr Justice Eady: the need for international comity concerning the applicable law for international publications

Mr Justice Eady has identified the need for international agreement about the applicable law for internet publications:

The recent communications revolution is comparable to the invention of printing, just on a vaster scale numerically and geographically. The conflict is not between princes and people, as it was in the 16th and 17th centuries, but between individual communicators and a multiplicity of laws…

What is plainly required is an international agreement to govern communications on the web and, in particular, to determine whether they are to be regulated by an agreed set of supra-national regulations or, if not, to provide a generally acceptable means of deciding which domestic law should apply to any offending publication. … I would characterize this as essentially an international problem deriving from technical advances. It is obviously not a specifically English or UK issue.[6]

(b) Mr Hugh Tomlinson QC: the need for appropriate remedies as well as protection of bloggers

If agreement of the kind described by Mr Justice Eady could be reached concerning the applicable law, why not also agreement about applicable remedies?  The possibility of a special defence for bloggers was considered by Hugh Tomlinson QC at the 4 November 2010 conference in England on defamation law reform:

The second possible area for the development of a new defence relates to bloggers and others who produce material on the internet, often with fairly limited readerships, but who face the possibility of ruinously expensive libel actions.  As far as I am aware, there has been very little research in this area and it is difficult to know how serious a practical problem there is.  Nevertheless, there are obvious anomalies about treating non-commercial bloggers and large media corporations in the same way for the purposes of a “public interest defence[7].

There are a number of possible ways of dealing with this issue.  One possibility would be to develop a “Code of Practice” for bloggers defining the standards of “responsible blogging” – which could be referred as a part of any “responsible publication” defence.  The approach would be very different to that which applies to the mainstream media and might involve speedy take down of dispute material. Another possibility might be to limit the available remedies (and costs) in claims against bloggers if the material was taken down within a reasonable time of notice being given that it was defamatory.  On the one hand, responsible bloggers should be protected against abusive legal action whilst, on the other, the law should not provide a “defamers charter”.  This seems to me an important area in which research and creative thinking is needed.

(c) The Australian Press Council’s 2007 submission to the Minister for Telecommunication 23 April 2007

The APC suggested, albeit in two paragraphs, that a voluntary code of conduct for bloggers could be considered[8].

(d) Current developments in the United States

The Gazette of Law and Journalism[9] recently published an article (“The fall of libel and the rise of privacy”) which notes one of the reasons for the decline of defamation suits as being that:

…complainants had more options available to them in the digital age. Internet publication provides media companies with the ability to quickly redress and erroneous slight on someone’s character, as little cost or inconvenience. Media entities are using a variety of web-based mechanisms to assuage the potential claimant. The Times, for example, will attach an “Editor’s Note” to the web version of an article to allow the subject of the article a form of redress. The Editor’s Note is a curious hybrid – neither a correction nor an apology but an opportunity for the aggrieved to record their version of the facts.

The article reports views from a conference in the United States where the attendees noted there was a whole new industry of reputation-restoration firms like the UK-based Kwikchex. However, suits are still being brought, such as the action brought against Kim Kardashian for her Twitter comment that a particular diet was “unhealthy”.

The increasing tendency to join ISPs in defamation proceedings

Other reasons for proposing an eBay-style self-regulation by the internet by setting up a forum or complaints procedure to process defamation complaints extra-curially, as either a precursor or an alternative to defamation proceedings, are:

(a)    Requests of this kind are already being made to servers to remove defamatory material. Bloggers or websites which receive a letter demanding the removal of material from the website (at the risk of being sued for failure to comply) may err on the side of caution to take down the offending material[10] for fear of the substantial legal costs of defamation proceedings. This is not a good way to balance freedom of speech with protection of reputation.

(b)   Proceedings are in fact being brought against ISPs in Australia for search results (Trjkula v Google Inc LLC & Anor [2010] VSC 226), and the question of how quickly an ISP should act, and what inquiries should be made beforehand, are issues of some complexity for the courts. Self-help remedies such as counterspeech and online retractions are cost-effective and, by reason of the internet’s accessibility, a more effective remedy.  Courts in the United States have encouraged these self-help remedies. In Mathis v Canon 573 SE 2d 376 (Ga 2002) the plaintiff sued for allegedly libelous postings on a bulletin board. As the law in Georgia included a provision that a request for an apology was relevant to damages, the court looked at the availability of retractions on the internet. The court noted that a retraction in cyberspace would be likely to reach the same audience that had read the libelous statements. The court denied the application for punitive damages, saying that the court hoped to encourage plaintiffs to seek self-help, their first remedy, by “using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation”[11]. The purpose of encouraging this self-help remedy, hoped to “strike a balance in favour of ‘uninhibited, robust and wide-open’ debate in an age of communications where ‘anyone, anywhere in the worlds, with access to the internet’ can address a worldwide audience in cyberspace.”[12]

(c)    The test for an interlocutory injunction in defamation is difficult to satisfy. In defamation litigation in Australia plaintiffs are making requests for removal of the material to the courts, rather than to the servers, and unless there are interim orders, these requests (the jurisdictional basis for which is doubtful in some courts, such as the District Court of NSW) are not going to be put to the court until the hearing, which is really too late.

(d)   There is anecdotal evidence that part of the significant growth of defamation actions in England and Australia comes from internet-related actions.[13] There are now companies calling themselves “on-line reputation-management companies” such as Kwickchex, which trawls the internet looking for unflattering reviews of any of its 800+ hotel and restaurant clients. The managing director told the Telegraph that the firm threatens legal action to persons who do not either substantiate or withdraw their comments, and that if the website did not remove them, “the website will be presumed to have taken full responsibility for the continued publication of the posts.”[14] Other internet reputation protectors include “Reputation Defender” (, Web Protection Management ( ) and Online Name Reputation Defense and Management ( ). There are many more.

In other words, the problem is already with us – there has been a rise in internet cases that will continue, and ISPs who are identified by these reputation protector services may risk being joined as parties.

There is limited protection offered to ISPs by statute, and by the defence of innocent dissemination. The best escape for ISPs is to avoid a finding of publication in the first place.  In Metropolitan International Schools Ltd v Designtechnica Corporation [2009] EWHC 1765 (QB) Eady J held that Google was not liable because it had no control over the search terms entered, and the results were produced without human intervention (meaning it was not a publisher in the first place), but how will the courts be able to draw a distinction between “publication” and “mere passive facilitation” where a request is made to the ISP to modify its searches?[15] The conviction of Google in France for a search engine which identified a person as a rapist is a reminder of the difficulties of applying the existing law as opposed to finding new ways to deal with new definitions of publication and production of material.

The real question would be what would occur if the matter could not be resolved by a pre-action suit, or if actual damage resulted. One solution would be a limited right of action similar in its elements to a claim for malicious falsehood (i.e. claims for special but not general damages, and with requirements to establish malice), which would be a more appropriate vehicle than an action for defamation with the presumption of injury to reputation.

Yes, but can self-regulation or a complaints process work? How is the internet regulating itself, if at all? To consider whether such a scheme is practical, it is necessary to look at the history of internet self-regulation, as well as attempts to regulate it by legislation.

A history of regulation of the internet

The internet has passed through a series of different regulatory structures. In his helpful article “Four Phases of Internet Regulation”[16] John Palfrey explains that internet regulation has gone through four phases: the “open internet” period (up to 2000) when there was little control[17]; the “access denied” period up to about 2005 when countries such as China and Saudi Arabia erected filters or other means to block access to certain information; the “access controlled” period, where countries have emphasized regulatory approaches which are layered on top of filters and blocks in a more subtle fashion; and the period we are now entering, which John Palfrey calls “access contested”. Regulation of internet content in an “access contested” atmosphere  could, in my view, include the provision of complaints mechanisms and remedies which would permit a complaints process aimed at the correction or removal of material from the internet.

The nature of internet publications is functionally entirely different to other forms of human communication; it can easily be changed, modified or blocked, it is internationally accessible and it is often accompanied by contributions or comments from many persons. Most of all, it is a source of publication on such a vast scale that it dwarfs all other publications, and its centrality to everyday life and ability to transmit and respond to information is unmatched by any other means of publishing.

One of the great successes for the internet has been the success of eBay. Goldsmith & Wu[18] note how eBay coped with English libel laws by establishing special procedures:

“In 1999, eBay opened its first overseas auction site, in the United Kingdom, and by the end of 2002, had established auction sites across Europe and Asia. As might be expected, different laws in different nations created new legal and business challenges. In the UK, for example, defamation laws are strict. When users received negative feedback, they often threatened to sue both eBay and the person who left the feedback, and so eBay had to create a process for handling defamation complaints.

South Korea, where 97% of all households had broadband in 2008, was quick to introduce requirements for registration of online users and control of internet input[19].  Regulation of this kind is inevitable in some countries, and it is in the interest of the service providers as well as users for such a procedure to be uniform, if only to prevent overzealous supervision by governments with a repressive bent. In response to conflicts with governments in some countries (for example, the circumstances in which Google ceased operation in China) internet companies such as Google, Microsoft and Yahoo! have set up , with the assistance of academics and human rights groups, the Global Network Initiative[20]. These companies are filtering content about certain matters in certain parts of the world[21]. In addition, countries, including Australia, seriously considered stat-mandated filtering, although these plans were dropped after widespread opposition[22].

The question is not, therefore, whether the internet can be regulated, but how it can be regulated, and whether that could include a regulatory process to enable aggrieved persons to seek corrections or the removal of defamatory or private material. Appropriate regulation would redefine publication and restrict damages awards for defamation to traditional non-electronic publications, so that internet, facebook and twitter sites have to use complaint “gripe sites” in a complaints process

In 2002 the UK Internet Service Providers Association (ISPA) complained that responding to defamation complaints about online content cost between 50 and 100 pounds.[23] That gives some idea of the cost to ISPs, which is a lot cheaper than going to court in an increasing number of actions.

It is not possible, in this short overview, to do more than generally outline the history of changing views about internet regulation, and to note some of the proposed statutory regulations currently under consideration, such as the Web Censorship Bill passed by the US Senate Committee on 18 November 2010.

The NSW Auditor-General recently complained the government was not doing enough to protect privacy[24], which tends to suggest that there is bureaucratic support for more control.

Can self-regulation or a complaints process outside, or prior to, court proceedings work effectively?

People tend to assume that regulation is an activity of governments, and to overlook the trend towards self-regulation of business and commercial enterprises.[25] If eBay can self-regulate disputes arising from the millions of purchases made by eBay customers through using informal procedures, why not an eBay of ideas? ISPs already play an important role in assisting law enforcement concerning cybercrime and breach of copyright; setting up a code of ethics for bloggers and a procedure for retractions is a more attractive option to libel suits, especially if ISPs run the risk of being joined if they do not take the material off the web.

A person who used the dispute resolution process could commence proceedings to dispute a finding of refusal to remove, or claim special damages but not otherwise. Court proceedings commenced after such a procedure should provide more appropriate, and different, remedies, including court-ordered removal of the publication from the internet, rather than claims for general damages. Defamation legislation does not provide for the publication of retractions or withdrawal from the internet in express terms.

The attraction for ISP and blog site service providers is that they could then enjoy immunity from suit, rather than the current risky situation of having to respond to lawyers’ letters demanding that items be removed from the internet or the server will be joined as a defendant.

In terms of implementation, it would be open to the Commonwealth Government to use the telecommunications or corporations power in the Constitution to draft an Australia-wide internet law, where any defamation actions which survive (e.g. claims for special damages, refusal to withdraw) could be brought in the Federal courts (either at magistrate level, or in the Federal Court).

Another attraction of this alternative to litigation, however, is that it is a procedure which, if adopted in countries like Australia, is less expensive way of resolving disputes for countries where regulation of freedom of public expression is a significant issue

Whether or not these a different regime for the internet (either as a pre-suit requirement, or as an alternative) would make a difference, the question of judicial interpretation of the appropriate balance is an issue of vital relevance to those defamation actions which require adjudication by the courts, and that brings me to my second proposal for defamation law reform – a specialist “freedom of speech” appellate court as part of the Federal Court of Australia’s appellate system.

2.2 A specialist “freedom of speech” court at Federal level?

Where legislation is Australia-wide, inconsistency of approach by judges (whether of the same or of different courts) can lead to uncertainty and lack of clarity of the kind that Mr Justice Eady says should be avoided at all costs[26].

Some reasons for considering the creation of a specialist court are:

  • This would be similar to the system for appeals concerning first amendment issues in the United States. If any kind of first amendment or constitutional reform is being considered, a heightened standard of review is required, and this is in fact what occurs in the United States, where appellate courts are required to conduct independent and de novo reviews of the record to determine if the judgment can be constitutionally supported, and whether there is clear and convincing evidence of actual malice.[27] This is a federal constitutional law and, as is the case in Australia, federal law prevails where there is a conflict.[28] The appellate court has a special role in ensuring that sufficient weight has been given to first amendment rights and in ensuring the lower court judgment is not a forbidden intrusion into the field of free expression. Stephen J noted in Bose v Consumers Union of United States Inc 104 S. Ct. 1949 at 1965 (1984) that the requirement of independent review reiterated in New York Times Co v Sullivan, 376 US 254 (1964) is a rule of federal constitutional law reflecting a deeply held conviction that independent review was necessary to preserve the precious liberties of freedom of speech enshrined in the Constitution.

I suggest that the referral of all appeals from findings by trial judges where such a defence has been pleaded to a specially constituted appellate court as part of the Federal Court, whether such reforms are considered appropriate or not, would ensure a consistent Australia-wide consideration of the balance of freedom of speech issues.

However, I also suggest that Australia can go further than the United States in one regard. This bifurcation of the judicial role in the United States goes back to the 1960s; the role of the Federal Court in the United States in determining such issues is restricted to first amendment, public figure and related defences in an action, not issues such as defamatory meaning, justification or falsity. In the interests of avoiding the expense of two appeals, a time-saving step could be for all issues in appeals where any defence concerning the right of freedom of speech form part of the proceedings to be considered by this appellate court. For example, speech concerning issues of government or political matters may be more robust[29] than ordinary speech, and this may be relevant to whether or not the imputations are conveyed. If a specialist Federal appeals court hears a case where issues other than freedom of speech are raised, it would make sense for those issues to be dealt with as well.

The setting up of such a court would not require any change to the uniform code; it would be Commonwealth legislation, based upon the freedom of speech defences.

Setting up such a court ahead of the passing of legislation would appear, at first blush, to be putting the cart before the horse. However, the establishment of a specialist court will ensure that careful attention is given to our existing legislation, which may turn out to be adequate if it is properly interpreted, as well as identifying loopholes, inconsistencies or other injustices requiring remedy.

  • The establishment of such a court would mean that it could deal with “problem” cases where appellate courts hand down inconsistent decisions (e.g. Ainsworth v Burden (2003) 56 NSWLR 621 and Morgan v Mallard [2001] SASC 364), or where there is a sudden overturning of cases regarded as fundamental to defamation law (Griffith v Australian Broadcasting Corporation [2010] NSWCA 257), or where an urgent problem concerning the interpretation of a defence arises (Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852).

Accordingly, where a party can establish that there are inconsistent authorities, especially between interstate appellate courts, it might be desirable for a specialist  appeals court to make a ruling. Whether that would be a right solely of appeal to the specialist appeals court, or whether it would be an alternative to seeking leave from the High Court, are matters for further consideration.

The question arises why the High Court cannot hear such arguments as it presently does. The problem is that the High Court grants leave in only about 5% of all applications, and defamation cases should not be taking up the High Court’s time in an unfair ratio to other cases, particularly given the nature of the “heightened standard of review”[30] required for freedom of speech issues in the United States.

A specialist court would also confer the benefit of speed for cases where speed was necessary.

  • Another advantage of setting up such a court would be that it could meet the concerns expressed by so many academics (such as Professor Brown), judges (such as Lord Steyn) and academics about the need for specialist judges. Although everyone from the UK defamation list judges[31] to the World Bank[32] to the House of Commons has unanimously endorsed the need for specialist judges, courts have been resistant to these suggestions. Very few courts in Australia even offer a specialist list or Practice Note for reputation law actions such as defamation or malicious falsehood. This results in waste of court time and the parties’ money when inadequately prepared cases come to court, or injustice where the law is wrongly applied.
  • A specialist court could consider related problem areas such as the nature and extent of publications for which the defence was available, the appropriate test for malice and the degree to which Australian law requires amendment to ensure the proper balance is maintained.

The establishment of a specialist appellate court, with the flexibility and speed to deal quickly with freedom of speech issues and resolve apparent inconsistencies or oversights in the law would, in my view, show a major commitment by the Australian legal system to value freedom of speech. Not only would it silence the critics who deride New South Wales as the defamation capital of the world, it would also take the burden of defamation appeals from State appellate courts. For example, McClellan CJ at CL has expressed concern for many months about the number and complexity of defamation cases in his court.


The difficulty of effective defamation law reform, as illustrated by the s 7A jury trial proposal, is that reforms which introduce greater technicality, such as bifurcating the trial, or “big law firm” proposals such as complex constitutional defences, may create more problems than they solve. In particular, the changing nature of publication and the increased cost of litigation need to be taken into account. Reforms that are appropriate for electronic publications or the media are not necessarily appropriate for private communications or limited publications such as a slander.

The immediate short-term problem is how to reduce the number and cost of defamation actions. I believe this can be achieved by three interim changes to procedure.

The first of these, Commonwealth legislative recognition of alternative means of redress for internet and electronic publications (at first as a pre-action requirement and perhaps later as a complete alternative) would take the pressure off the court system of having by reducing the number of cases. The second, the setting up of a specialist appeals court to determine appeals where freedom of speech issues arise, would first lead to a consistency of approach concerning balance issues, by specialist judges, and enable more studied consideration of law reform issues in the future. The third proposal, carrying forward a review of legal costs (not only speculative fees, but “megalitigation” practices) to ensure the abuses that bedevilled personal injury are expunged from defamation law, would reduce costs for the media and help restore public confidence in the legal profession generally. The damage done to the legal profession by newspaper coverage of overcharging in personal injuries cases is far greater than lawyers and judges have been prepared to acknowledge.

Another short-term reform would be to consider amendments to the Defamation Act to correct anomalies in the defences which have been discovered since the uniform legislation was introduced. Proposals by individual courts to get rid of juries, or reorganise workloads between courts, should not be attempted on an individual court basis, but by co-operation and discussion between courts around Australia. A criticism often made by those who propose these arrangements is that defamation cases are of less importance than other court proceedings, such as personal injury cases. The reputations of our courts and our legal system are, however, judged by how courts deal with issues such as freedom of speech. If Inforrm’s response to the cases published on court websites is to award the crown for defamation capital of the world to New South Wales, imagine the response of the developing countries who look to Australia for guidance on issues such as freedom of speech, and who exchange visits with delegations of judges, lawyers and prosecutors for the purpose of discussing such matters. Officials in these countries read Australian newspapers[33], and court websites, with interest, and if we cannot achieve a proper balance for freedom of speech, we cannot expect our opinions on such issues to be taken seriously by them.

Freedom of speech, and the proper balance necessary to obtain it, should not be dismissed in this fashion. Professor Vai Io Lo and Xiaowen Tian which demonstrates that media freedom of expression is a more significant control on corruption than elections – in fact, it is more successful in this regard than democracy itself[34].

The importance of freedom of speech is that this exchange of ideas and information, through a news source available to any interested reader or listener, by definition will operate outside the framework of political influence. “Vertical”[35] democratic mechanisms such as press freedom and elections are more effective than “horizontal” democratic mechanisms such as courts, anti-corruption commissions and parliament. The Nobel Peace Prize Committee presumably had such issues in mind when awarding the Peace Prize to Liu Xiao Bo, and the members of the Australian government who spoke about these matters in parliament on 22 November[36] presumably did too. Chinese bloggers and journalists[37] seeking to enlarge the parameters of speech will not benefit from having personal liability for damages added to existing uncertainties.

In conclusion, a surge in defamation actions, particularly internet actions, has led to the Australian court system being swamped, and the balance between freedom of speech and protection of reputation will become increasingly difficult to maintain, particularly with restrictive interpretations at appellate level of defences such as qualified privilege issues. Before long-term defamation reform can be embarked upon, short-term measures to restore this balance, such as alternative dispute resolution for internet cases, restrictions on legal costs and the creation of a specialist appellate court, are needed to take the pressure off the overloaded court system. An appellate court at Federal level can ensure Australia-wide consistency of interpretation and identify areas requiring legislative adjustment, including problem areas concerning the individual’s right to privacy.  Only then will the right path to more comprehensive legal reform in Australia become clear[38].

Judge Judith Gibson was, until July 2010, the Defamation List Judge in the District Court in Sydney.

The Gazette of Law and Journalism is Australia’s leading online media law journal.  It has, since 1986, been covering court cases, legislation and policy issues that affect the media.  It has a comprehensive database of materials on defamation, contempt, suppression, protection of sources, freedom of information and privacy.

[1] See, for example, J G Fleming, “Retraction and Reply; Alternative Remedies For Defamation” (1987) 12 University of British Columbia Law Review 15 at 17-18.

[2] Defamation cases have been brought for emails (Ryan v Premechandran [2009] NSWSC 1186; Simeone v Walker [2009] SASC 201), websites (Restifa v Pallotta [2009] NSWSC 958; Young v The Neil Jenman Group Pty Ltd [2010] FCA 318) and ISPs ( Trkjula v Yahoo! Inc [2010] VSC 215; Trjkula v Google Inc [2010] VSC 226) and, where defamation actions against newspapers are brought, the action generally includes an internet claim as well. The definition of “matter” under the uniform code includes electronic communication.

[3] Bill Gates famously wrote about “The Internet Tidal Wave” in a 1995 memo . It has now come to be called the 21st Century Tidal Wave (although it has now been suggested that “perhaps tsunami is better”) . The ABA Journal for March 2001 first used the term “tidal wave” to describe defamation actions for internet publications in “Libel online: Suit raises protection for anonymous Web comments”. The anonymous blog complained about judicial appointments in Pennsylvania. For more comments about the tidal wave of libel on the internet,  see ; The “tidal wave” of arguably defamatory material on the net is discussed at ; ;

[4] There are several websites keeping records of litigation against bloggers e.g. . Several recent cases are discussed in “The fall of libel and the rise of privacy” (Gazette of Law & Journalism, 12 November 2010).

[5] D Rolph, “Publication, innocent dissemination and the internet after Dow Jones & Co Inc v Gutnick” (2010} 33 University of NSW Law Journal 562 at 580.

[6] Mr Justice Eady, loc. cit., at p. 7.

[9] Gazette of Law & Journalism, 12 November 2010.

[10] Jennifer M Liebman, “Defamed by a blogger: legal protections, self-regulation and other failures”, (2006) Journal of Law, Technology and Policy 101 at Part V. D and p. 130.

[11] Mathis, quoting Gertz v Robert Welch, Inc 418 US 323, 344 (1974).

[12] Mathis, quoting Reno v ACLU, 521 US 844, 851 – 3 (1997) and New York Times Co v Sullivan 376 US 254, 279 (1964).

[13] See for example “Defamation cases multiply from Facebook, Twitter:, The Sunday Mail (Qld), September 19, 2010, noting claims from a Sydney suburban solicitor that his firm was handling “over 20 cases”, while Queensland lawyers were saying their caseload had “doubled in the past few years”.

[14] “Fraudulent contributors to TripAdvisor, and other user-generated review sites, are to be named and shamed, reports Charles Starmer-Smith”, The Telegraph, September 2010.

[15] For a recent review of the law of innocent dissemination and the internet, see D Rolph, “Publication, dissemination and the internet since Dow Jones v Gutnick”, loc. cit.

[16] J Palfrey, “Four Phases of Internet Regulation”, The Berkman Center for Internet & Society Research Publication Series: (August 11, 2010).

[17] See, however, Malitz, T. “US Act sets off a “Tidal Wave” of Net Censorship” (1996) 118 Com Update 27.

[18] “Who controls the internet? Illusions of a borderless world”, loc. cit., at p. 143. The authors go on to note (at 147-148) that despite the chilling effect of decisions such as Dow Jones v Gutnick, conflicts of law issues have not had the devastating effect on the internet that has been predicted, and publishing and commerce have continued to flourish despite “parochial” national laws to which internet activity is subject. See also the policies developed for the removal of matter from YouTube.

[19] (8 October 2008). By comparison, in 2008, 35% of English households did not have any internet access.

[20] Palfrey at p 16.

[21] Palfrey, ibid, at 16 cites Noman 2010

[22] Ibid at 17.

[23] 2002 Law Reform Commission Report.

[24] SMH 22 October 2010

[25] Joseph A Cannataci and Jeanne Pia Mifsud Bonnici, “Can self-regulation satisfy the transnational requisite of successful internet regulation?”, 17th BILETA Annual Conference, April 5 – 6, 2002, Amsterdam.

[26] Mr Justice Eady, loc. cit., p. 1.

[27] The Law of Defamation in Canada, [27.10], citing Journal Publishing Co v McCullough 743 So. 2d 352 (Miss 1999), cases following upon New York Times v Sullivan including, most recently, Weaver v Lancaster Newspapers Inc 592 Pa. 458 (2007), Eastwood v National Inquirer Inc 123 F. 3d 1249 (9th Cir. 1997), Gibson v Maloney 263 So. 2d 632 (Fla. App. 1972) and, as to the appellate investigation of actual malice, many authorities including Eastwood.

[28] Levinsky’s Inc v Wal-Mart Stores Inc 127 F. 3d 122 (1st Cir. 1997).

[29] Mayes v Hudson (1993) 173 LSJS 200; see other cases collected at [18,030] in Tobin & Sexton (eds.), Australian Defamation Law & Practice. See also the High Court of Australia in Roberts v Bass, loc. cit, at [172]: “Political communication in Australia is often robust, exaggerated, angry, mixing fact and comment and commonly appealing to prejudice, fear and self-interest. In this country, a philosophical ideal that political discourse should be based only upon objective facts, noble ideas and temperate beliefs gives way to the reality of passionate and sometimes irrational and highly charged interchange. Communications in this field of discourse including in, but not limited to, the mass media, place emphasis upon brevity, hyperbole, entertainment, image and vivid expression.”

[30] Journal Publishing Co v McCullough 743 So. 2d 352 (Miss. 1999).

[31] Mr Justice Eady, loc. cit.

[32] “Doing Business” Report, 2004, “Establishing Specialised Courts”, at pp 51 – 3. The establishment of specialist courts was one of the principal reform proposals endorsed by the World Bank for ensuring greater economic efficiency through law reform.

[33] This includes the Taliban, who are regular readers of the Australian Financial Review: Dehsabzi v Dehsabzi (2007) 6 DCLR 68 at [7] – [8].

[34] See the research on this topic collected by Xiaowen Tian and Professor Vai Io Lo in “Conviction and Punishment: Free press and competitive election as deterrents to corruption”, (2009) 11 Public Management Review 155 – 172 at p.156.

[35] Tian and Lo, ibid.

[36] “MPs slam China over jailed Nobel activist”, Sydney Morning Herald, 23 November 2010.

[37] It is not possible in this short paper to review the Chinese media in any detail, but I would like to mention, as examples of journalistic standards, the simultaneous publication of the 23 editorials calling for action on the hùkǒu system and the April 2009 China Youth Daily report of the libel prosecution of a blogger (the prosecution was dropped in the ensuing public outrage).

[38] For discussions and comments please contact me at I thank my associate Vincent Mok for his assistance with this discussion paper.