INTERNET SERVICE PROVIDERS

 

In 1999, the federal government enacted legislation which provided in effect that an Internet Content Host (ICH) or Internet Service Provider (ISP) was immune from liability for hosting particular internet content where the host was not aware of the nature of the internet content or from being required to monitor, make enquiries about or keep records of internet content. (s.91(1) Broadcasting Services Amendment (Online Services) Act 1999 (Cth)).

The ISP or ICH has to prove its lack of awareness, however civil proceedings do not lie against an ISP or ICH for anything done in compliance with a code registered or standard determined under the Act. This includes actions for defamation.

In effect, this is a statutory version of the common law defence of “innocent dissemination”. In England it has been held that this defence is not available to an ISP after it had been put on notice of defamatory internet content and failed to remove it upon request.

In Australia an ISP or ICH will not be able to rely upon this statutory defence for the period after it was put on notice of defamatory material and requested to remove it.

INJURIOUS FALSEHOOD

 

As an alternative to defamation, a wronged person can bring an action for the common law tort of injurious falsehood. He or she must prove four elements:-

(i) That the statement (usually concerning the plaintiff’s business) was untrue.

(ii) That the statement was published to a third person.

(iii) Malice i.e. that the defendant intended to cause harm.

(iv) Proof of actual damage.

The third element (malice) is the most difficult to prove, however proof of reckless indifference as to whether or not the statement was true will be sufficient. Proof of the fourth element is also difficult. It is one thing to infer that a business has suffered damage because of a certain event but actual proof (e.g. evidence from a customer that he ceased to do business with the plaintiff because of the matter complained of) is difficult to obtain.

The attraction of an injurious falsehood claim is that the plaintiff does not have to steer a course through the minefield of common law and statutory defences available in defamation proceedings.

Recently however in the New South Wales Supreme Court, an injurious falsehood claim was struck out for being “a defamation claim masked as a claim in injurious falsehood” (per McCallum J Mahon v Mach One Financial Services Pty Ltd (No 2) [2013] NSWSC 10).

In that case, her Honour found that it would not be possible to prove any actual loss, as the plaintiff held no direct commercial interest in the business which was alleged to have been affected.

There are a number of interesting aspects to injurious falsehood claims. Firstly, (unlike defamation) it can be brought by a large corporation. Secondly, if heard by a jury, damages are assessed by the jury and such damages can include exemplary (or “punitive” damages).

In a recent injurious falsehood claim, we succeeded in proving the first two elements but failed on the third (i.e. malice). Had we succeeded in that case we would have asked the jury to assess exemplary damages in respect of a media defendant with five billion dollars in net assets. We succeeded on a concurrent defamation claim.

MISLEADING OR DECEPTIVE CONDUCT

 

Under s.18 Australian Consumer Law a person or corporation must not, in trade or commerce, engage in conduct which is misleading or deceptive or is likely to mislead or deceive. This legislation provides an alternative for an action for defamation. However, such an action cannot be brought against a media defendant.

One advantage in bringing such an action is that it can be brought in the Federal Court or Federal Magistrates Court where it may be possible to have the matter heard without a jury, if the plaintiff so wishes. That said, this is not necessarily so and the Federal Court has been known to appoint 12 person juries in such cases. Another advantage of a s.18 cause of action is the wider range of remedies and damages available under this legislation.