66. KIRBY J. Lord Bingham of Cornhill recently wrote that, in its impact on the law of defamation, the Internet will require "almost every concept and rule in the field ... to be reconsidered in the light of this unique medium of instant worldwide communication."[63] This appeal enlivens such a reconsideration. ...
72. It is unsurprising that the thrust of the appellant's argument was that this Court should re-examine the common law of defamation in Australia so as to reformulate its elements, either generally or specifically, for the law as it applies to publication on the Internet. In particular, the appellant urged this Court to re-express the common law so as to abolish the "primitive" rule[74], that every publication of defamatory material constitutes a new and separate tort[75]. At least in respect of publications appearing on the Internet, the appellant submitted that the Court should express the common law to treat defamation as "one global tort (rather than a multiple wrong committed by every single publication and every internet hit)"[76].
73. If the common law were re-expressed in this way, the appellant's argument proceeded, the "publication" in this case had occurred, and the tort had been completed, in the United States. Specifically, this had occurred in the State of New Jersey where the matter complained of was uploaded on the appellant's website or in the State of New York where it was composed and finally edited.
74. Practical considerations: Behind these arguments of legal authority, principle and policy lay the forensic advantages perceived by the respective parties. That is not unusual. Nor is it in any way reprehensible[77]. But it should be recognised at the outset. The respondent was entitled to regard the law of defamation in Victoria as more favourable to his interests than the law in the United States. The latter is greatly influenced by the jurisprudence of the First Amendment to the Constitution of that country[78]. That jurisprudence is more favourable to the appellant[79]. The jockeying over the issues in this appeal is thus not concerned only with large questions of law. For the parties, the stakes are more basic and more urgent. ...
78. The Internet: The history of the Internet, its ubiquity, universality and utility have been described in the reasons of many courts in the United Kingdom[91], the United States[92], Canada[93], Australia[94] and elsewhere[95]. In the expert evidence before the primary judge in this case, there was no relevant dispute about the main features of the Internet and of the World Wide Web specifically. Some additional evidence relevant to those features was placed before this Court, without objection, in support of the application of a number of organisations which were granted leave to intervene[96]. Although the supporting affidavits were not part of the record in the appeal, and cannot be so treated[97], most of the features of the Internet there described confirm the evidence given at trial. They are, in any case, readily ascertainable from standard works that describe the Internet's basic elements.
79. It is important to consider these features because they afford the foothold for the appellant's argument that the Internet is such a new and different medium of human communication that it demands a radical reconceptualisation of the applicable common law, specifically with respect to the tort of defamation.
80. It has been estimated that, by the end of 2002, the number of Internet users will reach 655 million[98]. The number continues to grow exponentially. It is estimated that in some countries, the number of users doubles every six months[99]. The Internet is essentially a decentralised, self-maintained telecommunications network. It is made up of inter-linking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term "cyberspace"[100]. This is a word that recognises that the interrelationships created by the Internet exist outside conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The Internet is accessible in virtually all places on Earth where access can be obtained either by wire connection or by wireless (including satellite) links. Effectively, the only constraint on access to the Internet is possession of the means of securing connection to a telecommunications system and possession of the basic hardware.
81. The World Wide Web: The Web is a forum consisting of millions of individual "sites". Each site contains information provided by, or to, the creator of that site. When a publisher of information and opinion wishes to make its content available on the Web, it commonly does so by creating a "website" and "posting" information to that site. Such a website is a collection of electronic messages maintained on a type of computer known as a "web server". Typically, this is controlled either by the publisher concerned or by a third party contracted by the publisher to provide "web hosting" services.
82. An Internet user may access the information maintained on a website provided the user knows, or can ascertain, the Internet address of the relevant website. By entering that address into the user's web browser, the user will be directed to that website. Once the user locates the website in this way, the user may be required to take additional steps to access information stored on the web server associated with the website. Thus, to post an article to a website, a publisher must prepare a version in digital (computer readable) format. Such an article becomes part of the digital collection of data known as a web page. Such a web page is transmitted to a web server. It, along with the other web pages, comprises the website.
83. By posting information on a website, the publisher makes the content available to anyone, anywhere, having access to the Web. However, accessibility will depend on whether there is open access (under which any web user can access the site); subscription access (under which only web users who register, and commonly pay, for the service can secure access); combination access (where only a portion of a site may be accessed after registration and/or payment of a fee) and restricted access (access limited to specified users authorised by the website operator to view the website, eg employees of a particular company).
84. Difficulty of controlling access: The nature of the Web makes it impossible to ensure with complete effectiveness the isolation of any geographic area on the Earth's surface from access to a particular website. Visitors to a website automatically reveal their Internet Provider ("IP") address. This is a numerical code that identifies every computer that logs onto the Internet. The visitor may also disclose certain information about the type of browser and computer that the visitor uses. The IP addresses of users are generally assigned to them by an Internet Service Provider ("ISP"). The user's IP address will remain the same whenever and wherever the user "surfs" the Web. But some ISPs do not assign a permanent IP address. Instead, they assign a new IP address every time a user logs onto the Web. Because of these features, there is presently no effective way for a website operator to determine, in every case, the geographic origin of the Internet user seeking access to the website.
85. For similar reasons, with respect to subscription accounts, checking the issuing location of a credit card provided by a user would not afford a universally reliable means of ascertaining the geographic location of a user seeking access to a website. Thus, even assuming that a geographic restriction could be introduced isolating Australia (and hence Victoria) by reference to the origin of the visitor's credit card, a resident of Australia with a credit card issued by a United States bank, would be able to access sites that might be denied to an Australian resident with an Australian credit card, although both users were physically located in Australia.
86. In addition to these difficulties of controlling access to a website by reference to geographic, national and subnational boundaries, the Internet has recently witnessed a rapid growth of technologies ("anonymising technologies") that enable Internet users to mask their identities (and locations). By reason of these developments, the provision of cost effective, practical and reliable identity verification systems, that could afford a universally reliable recognition of the point of origin of an Internet user, has not emerged. This is why the nature of Internet technology itself makes it virtually impossible, or prohibitively difficult, cumbersome and costly, to prevent the content of a given website from being accessed in specific legal jurisdictions when an Internet user in such jurisdictions seeks to do so. In effect, once information is posted on the Internet, it is usually accessible to all Internet users everywhere in the world. Even if the correct jurisdiction of an Internet user could be ascertained accurately, there is presently no adequate technology that would enable non-subscription content providers to isolate and exclude all access to all users in specified jurisdictions.
87. These special features of the Internet present peculiar difficulties for the legal regulation of its content and, specifically, for the exclusion of access in defined jurisdictions. Such difficulties may have a bearing on the question of whether a particular jurisdiction has an advantage in regulating content published and accessed on the Internet[101]. This does not mean (and no party before the Court suggested) that the Internet is, or should be, a law-free zone. However, in considering what the law, and specifically the common law of Australia, should say in relation to the contents of the Internet, particularly with respect to allegedly defamatory material on a website, the appellant argued that regard had to be taken of these elementary practical features of the technology.
88. Novel features of the Web: The crucial attributes, so it was said, include the explosion in the availability of readily accessible information to hundreds of millions of people everywhere, with the consequent enhancement of human knowledge, and the beneficial contribution to human freedom and access to information about the world's peoples and their diverse lives and viewpoints that the Internet makes available, thereby contributing to human understanding. It was argued that the law should generally facilitate and encourage such advances, not attempt to restrict or impede them by inconsistent and ineffective, or only partly effective, interventions, for fear of interrupting the benefit that the Internet has already brought and the greater benefits that its continued expansion promises.
89. This Court has made reference to the fact that modern development in mass communications and particularly the electronic media may influence the continued relevance or reformulation of established legal principles[102]. The appellant contested the respondent's suggestion that the Internet was merely the latest of many technologies that have enhanced the spread of information. It submitted that the Internet involved a quantum leap of technological capacity and the ubiquitous availability of information that demanded a root and branch revision of some of the earlier legal rules in order to take into account the Internet's special features.
90. The appellant accepted that it was requesting this Court to take a large step in re-expressing the principles of the common law. However, it argued that the Court should seek a bold solution because of the revolutionary character of the technology that had produced the need to do so. Because the common law adapts even to radically different environments, this Court was asked to be no less bold than the technologists who had invented and developed the Internet. We were reminded of Judge Learned Hand's observation[103]:
"The respect all men feel in some measure for customary law lies deep in their nature; we accept the verdict of the past until the need for change cries out loudly enough to force upon us a choice between the comforts of further inertia and the irksomeness of action."
91. In Theophanous v Herald and Weekly Times Limited[104], Brennan J, citing these remarks, noticed that some judges "find the call to reform more urgent". In the context of the development of the Internet, the unique features that I have described and the many beneficial advantages which I acknowledge, I am one of those to whom Brennan J referred.
92. The idea that this Court should solve the present problem by reference to judicial remarks in England in a case, decided more than a hundred and fifty years ago, involving the conduct of the manservant of a Duke, despatched to procure a back issue of a newspaper of minuscule circulation[105], is not immediately appealing to me. The genius of the common law derives from its capacity to adapt the principles of past decisions, by analogical reasoning, to the resolution of entirely new and unforeseen problems. When the new problem is as novel, complex and global as that presented by the Internet in this appeal, a greater sense of legal imagination may be required than is ordinarily called for. Yet the question remains whether it can be provided, conformably with established law and with the limited functions of a court under the Australian constitution to develop and re-express the law. [my emphasis] ...
Defamation and the Internet: a new paradigm?
111. A novel development: The fundamental premise of the appellant's arguments concerning the reformulation of the applicable rules of defamation depended on the technological features of the Internet. According to the appellant, those features were sufficiently different from pre-existing technology to demand a substantial reconsideration of the relevant law that had been stated in a different context in earlier times. If a more general revision were thought inappropriate or unnecessary, the task should at least be undertaken for any allegedly defamatory imputations published on the Internet.
112. I accept that a number of arguments support this proposition. Involved in responding to it are important questions of legal principle and policy. The proposition cannot be answered by an enquiry limited to expressions of past law. When a radically new situation is presented to the law it is sometimes necessary to think outside the square. In the present case, this involves a reflection upon the features of the Internet that are said to require a new and distinctive legal approach.
113. First, the Internet is global. As such, it knows no geographic boundaries. Its basic lack of locality suggests the need for a formulation of new legal rules to address the absence of congruence between cyberspace and the boundaries and laws of any given jurisdiction[125]. There are precedents for development of such new legal rules. The Law Merchant (lex mercatoria) arose in medieval times out of the general custom of the merchants of many nations in Europe. It emerged to respond to the growth of transnational trade. The rules of the common law of England adapted to the Law Merchant. They did so out of necessity and commonsense[126]. ...
116. The International Covenant of Civil and Political Rights also provides that "[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation". And that "[e]veryone has the right to the protection of the law against such interference or attacks"[131]. Accordingly, any development of the common law of Australia, consistent with such principles[132], should provide effective legal protection for the honour, reputation and personal privacy of individuals. To the extent that our law does not do so, Australia, like other nations so obliged, is rendered accountable to the relevant treaty body for such default[133].
117. The law in different jurisdictions, reflecting local legal and cultural norms, commonly strikes different balances between rights to information and expression and the protection of individual reputation, honour and privacy. These disparities suggest the need for a clear and single rule to govern the conduct in question according to pre-established norms. If it is to be effective, such a rule must be readily ascertainable. To tell a person uploading potentially defamatory material onto a website that such conduct will render that person potentially liable to proceedings in courts of every legal jurisdiction where the subject enjoys a reputation, may have undesirable consequences. Depending on the publisher and the place of its assets, it might freeze publication or censor it or try to restrict access to it in certain countries so as to comply with the most restrictive defamation laws that could apply. Or it could result in the adoption of locational stratagems in an attempt to avoid liability.
118. A new rule for a unique technology: In response to the suggestion that similar questions have existed at least since telegraph and international shortwave radio and that such potential liability is a commonplace in the world of global television distributed by satellite, the appellant pointed to the peculiarities of Internet publication. Viewed in one way, the Internet is not simply an extension of past communications technology. It is a new means of creating continuous relationships in a manner that could not previously have been contemplated[134]. According to this view, the Internet is too flexible a structure to be controlled by a myriad of national laws, purportedly applied with no more justification than is provided by the content of such laws, usually devised long before the Internet arrived[135]. For stored information, accessible in cyberspace, the new technology was said to demand a new approach. This would be true as much for the law of taxation[136], commercial transactions[137] and other areas, as for the law of defamation.
119. The urgency of a new rule: To wait for legislatures or multilateral international agreement to provide solutions to the legal problems presented by the Internet would abandon those problems to "agonizingly slow" processes of lawmaking[138]. Accordingly, courts throughout the world are urged to address the immediate need to piece together gradually a coherent transnational law appropriate to the "digital millennium"[139]. The alternative, in practice, could be an institutional failure to provide effective laws in harmony, as the Internet itself is, with contemporary civil society - national and international. The new laws would need to respect the entitlement of each legal regime not to enforce foreign legal rules contrary to binding local law or important elements of local public policy[140]. But within such constraints, the common law would adapt itself to the central features of the Internet, namely its global, ubiquitous and reactive characteristics[141]. In the face of such characteristics, simply to apply old rules, created on the assumptions of geographical boundaries, would encourage an inappropriate and usually ineffective grab for extra-territorial jurisdiction[142].
120. The adoption of a single publication rule, expressed in terms of the place of uploading of material on the Internet might, in this case, favour the jurisdiction of the courts and the law of the United States. However, it would not always be so. Thus, if the liability propounded concerned an Australian who had uploaded material on the Internet within Australia, had taken pains to conform to Australian defamation law but was sued for defamation in some other jurisdiction whose defamation laws were more restrictive than Australia's, respect for the single global publication rule, if it became internationally accepted, could help reduce the risks of legal uncertainty and the excessive assertion of national laws.
121. Enforceability of judgments: Any rule adopted with respect to publication of defamatory matter on the Internet must eventually face the practical question concerning the enforceability of a judgment recovered in such proceedings. The balance that is struck between freedom of expression and access to information and protection of individual reputation, honour and privacy tends to be a subject about which divergent views exist in the laws of different countries. Sometimes such laws are reinforced by domestic constitutional provisions[143]. A judgment of a country's courts, recovered in defamation proceedings, may be enforced against any property of a foreign judgment debtor that exists within the jurisdiction. But if it is necessary to enforce the judgment in another jurisdiction, the difficulty or impossibility of such enforcement may amount to a practical reason for providing relief to the objecting foreign party on one or more of the grounds of objection raised in this case[144].
Reasons for declining an Internet-specific single publication rule
123. Limits to judicial innovation: The foregoing considerations present a persuasive argument for the formulation of a new rule of the common law that is particular to the publication of allegedly defamatory matter on the Internet. For myself, I do not regard them as mere slogans[145]. They present a serious legal issue for decision. Judges have adapted the common law to new technology in the past[146]. The rules of private international law have emerged as a result of, and remain alive to, changes in the means of trans-border communication between people. The Internet's potential impact on human affairs continues to expand and is already enormous. Later judges, in a position to do so, can sometimes reformulate the law in order to keep it relevant and just. Specifically they may re-express judge-made rules that suit earlier times and different technologies. For a number of reasons I have concluded that this Court would not be justified to change the rules of the Australian common law as would be necessary in this case to respond to the submissions of the appellant.
125. Rules should be technology-neutral: Whilst the Internet does indeed present many novel technological features, it also shares many characteristics with earlier technologies that have rapidly expanded the speed and quantity of information distribution throughout the world. I refer to newspapers distributed (and sometimes printed) internationally; syndicated telegraph and wire reports of news and opinion; newsreels and film distributed internationally; newspaper articles and photographs reproduced instantaneously by international telefacsimile; radio, including shortwave radio; syndicated television programmes; motion pictures; videos and digitalised images; television transmission; and cable television and satellite broadcasting[151]. Generally speaking, it is undesirable to express a rule of the common law in terms of a particular technology. Doing so presents problems where that technology is itself overtaken by fresh developments[152]. It can scarcely be supposed that the full potential of the Internet has yet been realised. The next phase in the global distribution of information cannot be predicted. A legal rule expressed in terms of the Internet might very soon be out of date.
126. The need for legislative reform: There are special difficulties in achieving judicial reform of the multiple publication rule in Australian law, even if one were convinced that it should be reformed to meet the technological characteristics of the Internet. Legislation in at least one Australian State is expressed in terms that assume the existence of the multiple publication rule[153].
127. In Australian Broadcasting Corporation v Waterhouse[154], Samuels JA stated his opinion that a single publication rule could only be introduced throughout Australia by statute. Whilst that remark was not essential to his Honour's reasoning, was made before the particular features of the Internet were known and does not bind this Court, it reflects the recognition of a judge with much experience in defamation law of the limits that exist on judicial alteration of basic principles to fit the apparent needs of a new technology. Because of such limits other means have been adopted within Australia to reduce the inconvenience of the multiple publication rule[155]. Some, or all, of these would be available in the case of an Internet publication to reduce the suggested inconvenience of that rule.
128. The defects of the multiple publication rule have been considered by the Australian Law Reform Commission ("ALRC"). In successive reports, the ALRC has proposed different solutions to the problem[156]. In its report on defamation law, the ALRC recommended legislation to abrogate the rule[157]. However, its recommendations have not so far been enacted. Whilst this is not necessarily a reason for this Court to stay its hand[158], it is appropriate to recall that in a parliamentary democracy such as that established by the Australian Constitution, this is a reason for caution in judicial alteration of basic and long held legal rules. ...
130. Take for example the suggestion that, before proof of damage or comprehension by anyone (apart from the author), the place and law of "publication" was fixed by the jurisdiction in which the text was first uploaded (as the appellant proposed) or in which the publisher last exercised control over dissemination (as the interveners proposed). The respondent complained that either of these rules, if substituted for the present law, would lead to "chaos". Even allowing for an advocate's overstatement, there are indeed difficulties. Publishers could easily locate the uploading of harmful data in a chosen place in an attempt to insulate themselves from defamation liability. They might choose places with defamation laws favourable to publishing interests. Just as books are now frequently printed in developing countries, the place of uploading of materials onto the Internet might bear little or no relationship to the place where the communication was composed, edited or had its major impact.
131. As if to recognise this problem, the appellant postulated various exceptions to its criterion of the place of uploading. These included exceptions for "adventitious or opportunistic" conduct; or conduct that "targeted" a particular place; or which existed where the website was "promoted". Apart from raising the question of whether the appellant's own publications would, in this case, fall within exceptions of the latter kind, it will be observed that we are already involved in overthrowing established legal rules for new ones that would require great precision in the formulation of detailed exceptions if a satisfactory judicial reformulation were to be achieved.
132. The uploading approach would also oblige a plaintiff to discover matters of conduct normally exclusively within the knowledge of the persons involved in processing the data. The plaintiff would have to find such facts in advance of the commencement of the proceedings. There are many similar practical problems. However, I have said enough to show that the propounded reformulation presents many complex questions. They are not appropriate for solution in judicial proceedings addressed to deciding a controversy between particular parties mainly or only interested in the outcome of their own dispute.
133. Attractions of alternative formulations: A connected issue demands consideration. If the place of uploading were adopted as the place of publication which also governs the choice of applicable law, the consequence would often be, effectively, that the law would assign the place of the wrong for the tort of defamation to the United States. Because of the vastly disproportionate location of webservers in the United States when compared to virtually all other countries (including Australia) this would necessarily have the result, in many cases, of extending the application of a law of the United States (and possibly the jurisdiction and forum of its courts) to defamation proceedings brought by Australian and other foreign citizens in respect of local damage to their reputations by publication on the Internet[160]. Because the purpose of the tort of defamation (as much in the United States as in Australia) is to provide vindication to redress the injury done to a person's reputation[161], it would be small comfort to the person wronged to subject him or her to the law (and possibly the jurisdiction of the courts) of a place of uploading, when any decision so made would depend upon a law reflecting different values and applied in courts unable to afford vindication in the place where it matters most. ...
137. Change exceeds the judicial function: Although, therefore, the appellant (and interveners) have established real defects in the current Australian law of defamation as it applies to publications on the Internet, their respective solutions for altering the elements of the tort and expressing it in terms of conduct substantially in the control of the publisher or its agents (and out of the control of the plaintiff whose reputation is alleged to have been damaged) are too simplistic.
138. It would exceed the judicial function to re-express the common law on such a subject in such ways. This is a subject of law reform requiring the evaluation of many interests and considerations that a court could not be sure to cover. Subject to what follows, I, like the other members of this Court, do not think that a single publication rule should be adopted in terms of the place of uploading as the place of publication of allegedly defamatory material on the Internet, which would also govern the choice of applicable law. ...
154. True, some readers of Barron's Online, or Barron's magazine with access to the appellant's website in New Jersey (or in New York), would have known of the respondent. Arguably, an action based on the tort of defamation could therefore also be brought in those jurisdictions of the United States. However, in this case it could not be suggested that the respondent had resorted to Victoria only in order to invoke the process of its courts or in an exercise of forum shopping. So far as damage to his reputation was concerned, Victoria, as the place of his residence, was where most such damage would be done, rather than amongst business, religious or other acquaintances in North America or with the very large number of strangers there who might read about the respondent in the appellant's Internet publications. ...
The outcome: a result contrary to intuition
164. The dismissal of the appeal does not represent a wholly satisfactory outcome. Intuition suggests that the remarkable features of the Internet (which is still changing and expanding) makes it more than simply another medium of human communication. It is indeed a revolutionary leap in the distribution of information, including about the reputation of individuals. It is a medium that overwhelmingly benefits humanity, advancing as it does the human right of access to information and to free expression. But the human right to protection by law for the reputation and honour of individuals must also be defended to the extent that the law provides.
165. The notion that those who publish defamatory material on the Internet are answerable before the courts of any nation where the damage to reputation has occurred, such as in the jurisdiction where the complaining party resides, presents difficulties: technological, legal and practical. It is true that the law of Australia provides protections against some of those difficulties which, in appropriate cases, will obviate or diminish the inconvenience of distant liability. Moreover, the spectre of "global" liability should not be exaggerated. Apart from anything else, the costs and practicalities of bringing proceedings against a foreign publisher will usually be a sufficient impediment to discourage even the most intrepid of litigants. Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this especially if that judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture.
166. However, such results are still less than wholly satisfactory. They appear to warrant national legislative attention and to require international discussion in a forum as global as the Internet itself[202]. In default of local legislation and international agreement, there are limits on the extent to which national courts can provide radical solutions that would oblige a major overhaul of longstanding legal doctrine in the field of defamation law. Where large changes to settled law are involved, in an area as sensitive as the law of defamation, it should cause no surprise when the courts decline the invitation to solve problems that others, in a much better position to devise solutions, have neglected to repair.
