Dialogue: Hidden perils in spreading bad words

By CHRIS PATTERSON*

The internet changed everything. The power to communicate on a mass level has never been so accessible to the general population.

This has caused loud alarm bells in some circles.

The ability to publish statements on the internet to a potential audience of millions may involve only a little bit of knowledge and a few minutes at a PC.

If the statement is defamatory it can have wide-ranging implications.

Generally speaking, a defamatory statement is one which lessens the reputation of another.

To publicly defame someone, the maker of the statement would historically use such media as television, newspapers or the radio. New Zealand's leading defamation cases revolved around such media.

But recently the internet has been the medium in some overseas cases.

Several individuals have claimed that they have been defamed by statements made on websites, in newsgroups and via emails. Some plaintiffs have been successful against the publishers of those statements, that is, the relevant internet service provider (ISP) rather than the maker of the statement.

Potentially, any ISP or company that allows defamatory statements to pass through its networks could be found to be liable.

Why have some plaintiffs sued the publishing ISP rather than the maker of the statement? The answer is often that the ISP may be seen to have deeper pockets. The answer can also be one of jurisdiction (the right to hear a claim).

The internet has no geographic limits. Defamatory statements on the internet are as accessible in New York as in Ponsonby.

The internet is not limited by the same geographical limitations as newspapers and television broadcasts.

Jurisdiction of the New Zealand courts in cross-border internet defamation cases has yet to be tested. The only certain thing is that the law in this area is as grey as it can get.

But some lessons can be taken from a decision of the New South Wales Supreme Court. It refused to grant an order directing a defendant, who lived in Sydney, to remove a website that was defamatory in New South Wales because "it may very well be that, according to the law of the Bahamas, Tajikistan or Mongolia, the defendant has an unfettered right to publish the material."

The use of the internet is not going to decrease. ISPs, employers or anyone with control over a network that allows internet traffic to be stored and viewed should review their risk management processes.

It is only a matter of time before our courts are asked to consider whether defamatory statements published overseas are actionable in New Zealand.

* Chris Patterson is an Auckland barrister.