HELD: Defamation occurs when material is downloaded.
▪ Substantial damages would only be payable if the plaintiff had a reputation in the place in which the publication was made. The damages awarded are the limiting device, rather than the extent of the publication. Damages would only be given in respect of countries where the plaintiff has a reputation.
▪ In considering international publications; if Gutnick had been claiming recovery for Vic and US; then Australian court must give effect to a different balance between freedom of speech and defamation, but in regards to effect in Vic, nothing wrong with applying Vic law.

Ordinary Principles vs. Result in Gutnick:
Usual rule: Publication occurs where defamatory statement is imputed/heard, as opposed to what the court held in Gutnick where the publication was held to be where the article was uploaded (i.e. defaming someone in language they do not understand, NOT defamatory).
AGAINST
Result in Gutnick: Argues that ordinary principle should be modified to where article is uploaded since statement could be read and defamation statement imputed from anywhere in the world. Dow Jones argued that recipients were really self publishing; taking steps to have it published to themselves from a foreign jurisdiction. Also compared the Internet with the comparatively active role of a newspaper or TV. Argued a single global tort; Internet was singularly unique as form of information for anyone with internet connection.

Jameel v Dow Jones [2005] QB 946
Facts: J instituted proceedings against D in respect of an article published in the European online edition of the Wall St Journal which concerned investigations into people believed to be financial backers of Al Qaeda. To access the link of people, the readers had to click on a hyperlink. J instituted proceedings in the English courts alleging publication in the UK; according to D there had been 5 hits on the document; only 2 hits by people unrelated to J but claimed they had no recognition of J.
HELD: CA: agreed that claim should be struck out; doubted wither HC in Gutnick was correct. Expressed a view that the fundamental principles of publication should be reviewed; in Jan 2006 Department of Constitutional Affairs announced they would do this. Found that Gutnick was distinguishable on the facts; in the UK there was no one other than J and his solicitors who had accessed the publication and identified J; there had to be a de minimus requirement for publication. In this case, even if the tort was committed, English courts should decline to exercise jurisdiction over the particular cause of action because it would amount to an abuse of process.
Nationwide News v University of Newlands [2005] QB 946
FACTS: In 2005 the Australian carried an article about ‘virtual universities’ where one of them named was the respondent. The Australian was accessible on the internet, and there the 2nd respondent read the article. On the basis of the article, she instituted defamation proceedings against N in the NZ courts. A problem was that there was insufficient evidence as to if anyone had in fact read the defamatory matter in NZ.
NZCA: Distinguished Gutnick that there was insufficient evidence to justify that publication had occurred. Also doubted whether the case (Gutnick) would represent law of NZ.

Bangoura v Washington Post (2004) 235 DLR (4th) 564
HELD: accepted that the article was available on the archives, but to have access someone would have to search for it. At the time of principal publication, B was a Kenyan national in Africa and had no relevant connection with Ontario, the CA found it was inappropriate to assume jurisdiction over B’s claim. Expressed doubt as to the soundness of HC’s decision in Gutnick as to whether it imposed too broad of a liability.

Remedies:

•    Primary remedy: award of damages; from Gutnick, a problem is the difficulty of enforcing judgments from courts outside forum in the forum.
•    Possible in circumstances of an apprehended defamation the plaintiff may seek interlocutory injunction (see Macquarie Bank v Berg)

Macquarie Bank Ltd v Berg [1999]
FACTS: The plaintiffs, Macquarie Bank Ltd (MBL) and Andrew Downe, and the defendant, Charles Berg, had not been on good terms for some time. For a period before December 1997 Berg had worked for MBL. Since January 1999 a document headed ‘Letters From Charles Berg’, together with other material pertaining to the relationship between the parties as well as the litigation, appeared on the Internet on a site located at www.brgvsmbl.com. But the present case arose from the publication of material on a site located at www.macquarieontrial.com, which has been accessible at least since May 1999.
The material makes serious allegations against the plaintiffs and conveys imputations defamatory of each plaintiff. Whilst the material, which most likely originated from the defendant, was accessible from anywhere in the world including New South Wales, it was ‘reasonably clear’ that the defendant at the time of hearing was not present in NSW and that any acts done by him that resulted in the publication were done in the United States. Thus the case concerned online material hosted overseas. Macquarie Bank wanted injunction from it appearing on website.
HELD: Injunction denied for 3 reasons:
1.    Defendant was in US, therefore issue of enforcement. Injunction was in equity and unlikely to have any affect in US.
2.    Since it was published on the internet, article was assessable to anyone with an internet connection and was not up to the publisher to restrict access; an injunction based on laws of NSW was not appropriate (since it was published on the internet which spreads over all jurisdictions (the injunctive powers of the NSW courts should not be used to impose our values on other jurisdictions of the world)  (NB: What if plaintiff’s reputation was virtually wholly confined to NSW?);
3.    Injunctions only to be given in rare circumstances given fundamental interest in freedom of speech. Requires that all the defences to the defamatory action are likely to fail, however, if there is a chance that a defence may succeed, then defamation must go trial. Imputations must be so clearly defamatory that if a jury or trier of fact decided it was NOT defamatory, the judge would overturn the decision.
The most compelling factor, according to the judge, that militated against making the order of an interlocutory injunction concerned the nature of the Internet itself, that is, the second reason.
It should be noted that the decision could have comfortably and quietly rested on the other two grounds but in particular the last ground, which restricts the remedy of injunctive relief to very rare, exceptional cases. Simpson J seems to acknowledge this when she concludes her discussion on the third ground with the words: ‘Even leaving aside the considerations peculiar to publication on the Internet, I would not be satisfied that this is the kind of case that would attract injunctive relief.’
The judge reasoned that the nature of the Internet is such that it is not possible for an online publisher to restrict the geographic reach of his or her publication. Consequently any prohibition on the publication based on New South Wales law would mean that the publication would have to cease entirely even in those jurisdictions in which it may be legitimate. This in turn could not be within the proper limits of injunctive powers of the New South Wales Supreme Court (or by implication any other local court).

Internet-Hosted Material:

Schedule 5, Clause 91 of Broadcasting Services Act 1992 (Cth)
Clause 91 – Liability of Internet Content Hosts and Internet Service Providers Under State and Territory Laws
(1)    A law of a State or Territory, or a rule of CL or EQ, has no effect to the extent to which it:
a.    Subjects an internet content host to liability in respect of hosting particular Internet content in a case where the host was not aware of the nature of the internet content;
b.    Would require the internet content host to monitor or keep records of internet content hosted by the host; etc

•    At common law, the doctrines of innocent dissemination would ordinarily apply; there is nothing to distinguish internet content from other types to suggest that liability based on Byrne v Dean would not apply.
•    Parliament in 1999 amended Broadcasting Services Act (Schedule 5) (Sch 5, clause 91):
o    Cl.  91(1) limitation: It is clear that (1) means that Internet content hosts/service providers cannot be obliged to investigate whether they are in fact carrying defamatory matter (ISP/ICHs do not have to prove an absence of constructive knowledge/negligence that gave rise to their knowledge). They are therefore only liable if they are aware of the presence of defamatory matter.
    This is of no use in circumstances where an ISP/ICH is put on notice as to the existence of defamatory content; if they are notified they have no benefit from Clause 91.
o    Further limitation: Demonstrated to reference to what constitutes internet content (in Cl. 3 Sch 5) which indicates that excluded from the definition of ‘Internet content’ is email and information transmitted in the form of a broadcasting service with the effect that they are determined solely by reference to common law doctrine of publication.

Collins, “Liability of Internet Intermediaries in Australian Defamation Law” (2000) 5 Media & Arts Law Review 209
•    In Thompson the court took the view that Channel                                                             7 could not rely on defence of innocent dissemination. The same reasoning in Thompson is likely to apply to Internet intermediaries, at least in respect of bulletin board (newsgroup) postings and web pages. Such intermediaries could arrange their affairs so as to monitor and censor the material they host or carry. Such material carries a risk of defamatory statements being made. Where an Internet intermediary fails to monitor or censor bulletin board postings and web page hosted or carried by it, it has probably failed to discharge the duty of care to which the defendant was held in Thompson.

•    However, the introduction of Clause 91 of the Broadcasting Services Act 1992. Clause 91(1) is in effect, a new defence to defamation law for Internet intermediaries. In defamation proceedings, it is now open to Internet intermediaries to plead that:
-    They satisfy the definition of an Internet service provider or an Internet content host
-    The material complained of by the plaintiff satisfies the definition of Internet content
-    They were not aware of the nature of the Internet content at the time of publication; and
-    Accordingly, any liability to which they would otherwise be subject under criminal or civil defamation law is excluded by the operation of Clause 91(1)

•    Clause 91(1) was not primarily intended to create a new defence to civil defamation law. As a result, it complicates rather than clarifies, the liability of Internet intermediaries who host or carry defamatory material which they did not create. In the first place, rather than establishing a simple defence applicable to all Internet intermediaries in respect of all forms of internet publication, Clause 91(1) has a selective operation. In those cases falling outside the scope of Clause 91(1), liability continues to depend on the ordinary rules of defamation law.

•    Secondly, by limiting its availability to cases where the internet intermediary is not aware of the nature of the content hosted or carried by it, Clause 91(1) discourages intermediaries from monitoring content, and potentially imposes liability even in cases where the intermediary has made all reasonable efforts to prevent offending content from continuing to be accessible.