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The defendant in this case was an
American corporation which posted
information on
the web in the USA to be
accessed by its subscribers,
98 per cent of whom are American. There
are only 15 subscribers in Australia AND
YET the Australian High Court decided
the American corporation could be sued
in
Australia (as opposed to the USA),
where the libel laws
are far more
favourable to claimants. The court
placed only a few limitations on the
ability to sue in Australia.
Firstly, the
offending webpage must have
been published in Australia
(i.e.
downloaded and read) and, secondly, the
claimant must have a reputation in
Australia.
This decision could be persuasive
in
other common law
jurisdictions including England. If
other courts follow the Australian
approach, a claimant could sue for libel
on the
web wherever he or she downloaded
the offending
material, which could be
anywhere in the world. If this
happens,
forum shopping is likely to be greatly
increased. Foreign claimants may
particularly look to sue in England, due
to its
strict defamation laws, if the
English Courts adopt the
decision of the
Australian High Court. If you are
subject to
adverse comment on a webpage posted
outside England, you may well have a
cause of action in England if you can
establish
that it has been downloaded
and read in England.
If your company owns a website and you
wish to limit your liability for libel,
you
should consider the following steps:
* Ideally, a company should take steps
to impose geographical restrictions on
where its
web content can be viewed.
However, such restrictions
are unlikely
to be 100 percent effective and
technically
are likely to be
difficult to achieve.
One reasonable step to take is to
seek
to have the reader confirm the
jurisdiction from which he is accessing
the
material before he is able to enter
the site.
* Vetting all website content to ensure
it complies with libel laws around the
world will
simply be impractical.
Therefore, we recommend that you
focus on the law in key jurisdictions.
Key jurisdictions will be any country
with strict
libel laws, such as England,
in which an individual,
corporation or
body subject to the adverse comment has
a reputation. Make sure that your
website does not contain material that
could be
considered defamatory in these
jurisdictions.
For further information please contact Susan Barty
by telephone on +44(0)20 7367 2542 or by e-mail
at [log in to unmask] or Karen Marshall by
telephone on +44(0)20 7367 2522 or
by e-mail at [log in to unmask]
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