In an important new paper, the New South Wales District Court’s Defamation List Judge Judith Gibson looks at the case law on defamation and the internet, from both the plaintiff and defendant points of view. The paper was given at the NSW State Legal Conference on Thursday 28 August 2014.
In the paper, Judith Gibson suggests that, since the internet came into general use twenty years ago the response of lawyers and the courts has been a general feeling of unease. Her paper covers two topics:
- A general discussion of the problems of pleading and other problems when commencing proceedings for defamation for Internet publications. This is discussed principally from the point of view of the plaintiff.
- The implications of the potential explosion in number of electronic defamation actions (for example, on social media or opinions published on review sites such as Tripadvisor or eBay) and what case management or legislative reform may be practicable. This is discussed principally from the point of view of the defendant.
It begins with a short history of Internet defamation law, pointing out that Internet publications differ from newspaper, television and other traditional means of communication in a number of important respects.
The paper then provides a checklist of some of the main issues to consider when drafting a statement of claim.
In the final section of the paper is entitled “The future of Internet defamation litigation”.
In her concluding remarks Judith Gibson notes that
Early decisions, such as Dow-Jones and Company v Gutnick (2002) 210 CLR 575 at  – , appear not to have appreciated that the Internet was not just another form of television or radio. More recent decisions, such as Bleyer v Google Inc  NSWSC 897, appear to be breaking the rules (including rules of precedent) to attempt to make the law respond constructively to the competing tensions of defamation law. Only time (and the appellate courts) will tell, however, if Justice McCallum’s findings have passed “the outer limits” (Bleyer v Google Inc at ) by accepting Google’s
latest ploy for combating the invaders from cyberspace.
The full paper is available here: “It came from Cyberspace – Judith Gibson” [pdf]. We commend it to our readers.
The paper was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.