Defamation on the Internet:

It is very important to be careful when making assertions online about other people. Anyone who can establish the cause of action in defamation can sue for damages in Court. Care should also be taken when making assertions about certain corporations that fall within the exclusion in section 9(2) of the Act. Under that section, companies cannot sue for defamation, unless they are in a category that is outside of this exclusion. The corporations that can sure are ones that satisfy the following criteria:

• Their purpose does not involve making a “financial gain”;
• They have fewer than ten employees;
• They are not related to another company;
• They are not public bodies.

Not only is the person who made the defamatory assertion liable for prosecution under the Defamation Act 2005 (NSW), but other entities may also bear responsibility for the act and may also therefore share in the liability. This is often the case where there has been republication of the offending material. The original author may be liable for republication where:

• He has authorized the republication;
• He intended the matter to be republished;
• The republication was a natural and probable consequence;
• There is a duty on the recipient to republish.

It should be noted that there is common law authority that provides protection for internet service providers from liability for prosecution under the Act. Other defenses that are available include the defence of consent, remoteness, innocent dissemination, truth and any implied protection of communication on political matters. Evidence of malice, however, may act to defeat any available defence.

Because the internet does not respect geographical borders, there may be a question relating to the  jurisdiction in which  defamatory act occurred. The Defamation Act 2005 (NSW) is a statutory instrument binding the jurisdiction of New South Wales. However, under section 11 of the Act:

• Where a matter is litigated in New South Wales but the publication of the offending material occurred elsewhere, the laws of that other jurisdiction will be used to determine the cause of action here;
• Where there have been multiple publications, the applicable law is the law of the jurisdiction where the “harm occasioned by the publication as a whole has its closest connection”;
• The Court will take the following matters into account when making a finding in relation to the above:
  • The residence of the victim at the time of the offending publication,
  • The extent of publication in any given area,
  • The extent of the harm suffered by the victim,
  • Any other matter that the Court thinks fit to consider.

These matters are questions of evidentiary interpretation and may have to be determined first before any substantive action can be taken in respect of the alleged defamatory act. Whether a party to proceedings under the Act is the defendant or the plaintiff, these matters will have a significant impact on the progress of the matter and possibly also affect its likelihood of success – this is because a jurisdictional issue may result in the binding nature of a precedent or the inclination of a Court to develop the law in one jurisdiction in relation to the laws of another.

Part 2, Division 1 of the Defamation Act 2005 (NSW) governs offers to make amends. These offers can be made by publishers of the offending material, and can be made within 28 days of the service of a concerns notice but not after the filing of a defence. The concerns notice must be in writing and must outline the particulars of the aggrieved party’s concerns relating to the defamatory act or acts. There are specific matters listed in section 15 of the Act which mandate what the offer to make amends must address. These should be drafted very carefully so that they comply with the statutory requirements.

Acceptance of an offer to make amends may result in the aggrieved party waiving its right to institute legal proceedings before a Court. A failure to accept may become a defence to any future defamation proceedings where:

• The offer was made as soon as practicably possible;
• The publisher was ready willing and able to carry out the terms of the offer; and
• The offer was reasonable.

Pre litigation procedure can save parties a considerable amount of money because defamation proceedings can be a very expensive and lengthy process. Our Internet Defamation team considers it a matter of priority to ensure that all steps are taken to resolve a matter before litigation is commenced. Unfortunately, sometimes a resolution is not possible and an offending individual will have to be sued and brought to account. In these situations it is important to have the right legal advice and representation.