Tuesday, 6 April 2010

Defamation and freedom of speech on the Internet

Question from a tutor during Web101 discussion:
I'd be really interested to know what you (and others!) think about the cases where bloggers have been on the receiving end of legal retribution for what they've said on their blogs? There have been some cases in the news recently (but many times over the past decade, really) about bloggers being censured for defaming others online. Given that a blog is supposed to be one person's personal space on the Web, do you think that authorities should have the right to restrict bloggers from saying certain things? Do the opinions of bloggers really matter that much?

I've always found the issue of defamation and freedom of speech on the Internet to be fascinating, and my husband has a legal background so I've done some reading prior to this class and asked him questions, and I have a few things I thought I'd share:

Firstly, somebody mentioned defamation. Defamation is a really complex area of law that is constantly being updated. But basically, to defame somebody you must 1/ say something that isn't true, 2/ that impugns or diminishes their reputation and 3/ you must be published.

However you CAN legitimately report something in a factual sense, provided you don't add anything inflammatory around it. For instance, it's factual to say that Sarah Monahan made allegations of molestation against Robert Hughes on A Current Affair. If you look at the reports coming from the mainstream media, they're all very careful to just detail what's been alleged. However, it's not factual to say that Robert Hughes is guilty of pedophilia, or that he's a child molestor, or anything else like that, because this hasn't been proven in a court of law. So that could potentially be defamatory, and this is where non-traditional media, bloggers etc. can get caught out.

The concept of defamation is difficult enough to prove without the Internet, because to sue somebody and receive damages you normally have to go to court and state your case in open court, deny what's been said and prove that it has damaged your reputation (and then the media gets to "report" the entire story, thereby ensuring that anybody who missed it the first time gets to read all about it - this is often why people don't bother). But before you can even get to that point there's the issue of establishing jurisdiction, which essentially means, where is it published, where was your reputation damaged and therefore, where should the case be made?

This is why freedom of speech and defamation on the Internet is a totally different kettle of fish. Where is something on the Internet actually published? Is it where the person who wrote it lives, or where the web server it was published on is based? Or where the owner of the web server is based (think Google)? Or is it where the person who is being defamed lives? Or something else entirely?

I don't know if we cover this down the track or not but there was a famous and highly controversial Internet defamation case heard in Australia a few years ago - Dow Jones & Co. Inc. v Gutnick (Joseph Gutnick is the rich guy who pumped a lot of money into the Melbourne Football Club a few years back). For anyone who's interested, there's a brief description of the case on Wikipedia, with a link to the full court transcript at the bottom. Basically, Gutnick was referenced in a book published by Dow Jones in the USA and the case was all about jurisdiction, and if Gutnick could bring suit in Australia. Eventually Dow Jones settled.

The thing is, the jurisdiction thing has never been adequately defined and it possibly never will be. We have 6 different Crimes Acts in Australia alone (one for each state) which are all different, and any other country or state could choose to handle jurisdiction differently to how Australia handled Dow Jones vs Gutnick.

So with regard to the question about blogger's own personal space, and authorities right to restrict people from saying things - it's difficult. I don't think anybody has the right to genuinely defame anybody else. I do think that people are entitled to express an opinion and report a fact. I think where the problems start are when people don't understand the difference between the two. :>

Cheers,
Nicky
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