The Prime Minister today foreshadowed legislation to unmask online trolls and amend the law of defamation in response to the High Court decision in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27.  The necessary bills will be released in the next week.  A mid morning media release on a Sunday, usually a slow news day where editors fret on what will fill the front page the next day, guarantees big coverage on Monday.

Extracting the reforms from the media release the changes will involve:

• legislating a requirement that social media platforms to set up a complaints system so as to remove defamatory remarks;
• establishing a new Federal Court order to require social media giants to identify details of trolls to victims without consent.
• Australians and Australian media organisations will not be considered publishers. 
• social media platforms will be considered publishers though liability may be avoided if they provide information which permits victims to commence defamation proceedings against a troll.

The curious thing is that there is already a process for applying to the Federal Court for an order to a social media platform, search engine or internet service provider to identify an author who is using a pseudonym to defame someone.  I make these applications regularly enough as part of my defamation practice.  The principles are well established and the process is not overly onerous.  What new order is required will be interesting to see. There is also concern raised about social media platforms being required to collect personal information which would be provided if the mooted application is made.  That is not as dramatic as has been reported.  Google and Yahoo and other platforms require email addresses and sometimes phone numbers.  They can provide the isp number. It is relatively easy to identify the author from those details.  Similarly if the social media is put on notice about defamatory posts they may currently lose their protection from suit in the Broadcasting Services Act. 

If the Government were serious about Read the rest of this entry »

The Ontario Superior Court of Justice in Jane Doe 464533 v ND (2016 ONSC 541) has expanded the tort of privacy to incorporate the publication of embarrassing facts.  It is a very significant decision and an advance in the development of the law of privacy, in Canada at least.  It is also a key case considering the egregious practice of revenge porn.  The commentary will be quite useful in the development of the tort in relation to this type of fact situation.

FACTS

The parties met while at high school and started dating while they were both in Grade 12.  They stopped dating but continued to see each other romantically throughout Read the rest of this entry »

A standard brief for very junior barristers starting out has been to make application to set aside a judgment obtained in default of defence or appearance.  The gold standard case setting out the principles was, and to a large extent is, Kostakenellis v Allen.   Now the Court of Appeal in Lubura v Nezirevic [2013] VSCA 215 has considered the first element of the test for setting aside judgments, whether the applicant has a defence on the merits. While it is a unanimous decision each of Warren CJ, Osborn JA and Robson AJA each had separate reasons.

FACTS

The facts are most comprehensively set out in Robson AJA’s reasons.

Early in the morning of  Sunday 8 July 2007 the respondent and other friends attended at the Red Star bar in Pultney Street, Dandenong [30].  A fight broke out between two groups, one of which contained the respondent and the other containing the appeallent, both in the bar and outside on the street subsequently. The respondent was surrounded and assaulted by at least two males with bottles, receiving injuries including bruising and laceration to his ear and head, as well as a ruptured globe to his right eye. He lost sight in his right eye as a consequence of the assault. Other members of the group were also assaulted [31]. The appellant was initially charged with four counts: intentionally causing serious injury, and (as an alternative) recklessly causing serious injury, common assault, and affray.  On 25 November 2011, a fresh presentment was filed, with two charges to which the appellant pleaded guilty; assault of a person unknown to the Director of Public Prosecutions and affray [33].

On or about 30 August 2010 the Appellant received the writ in the civil proceeding brought by the respondent. The appellant says Read the rest of this entry »

Today’s Sydney Morning Herald is doing the meltdown thing about a plaintiff, Liskula Gentile Cohen,  successfully forcing Google to provide identifiers of a blogger.  The ruling enables  Cohen to  identity the blogger that described her as a skank and an old hag.  Actually the blogger said:

“I would have to say the first-place award for ‘Skankiest in NYC’ would have to go to Liskula Gentile Cohen,” the anonymous blogger wrote.

“How old is this skank? 40 something? She’s a psychotic, lying, whoring, still going to clubs at her age, skank.”

Very blogspeak.  Cohen is planning on suing.  In the Australian context there would be some interesting pleading challenges if one was to run a justification defence.  But the US laws are far more difficult for the plaintiff, particularly if Cohen is regarded as a public figure.  Cohen has apparently already made contact with the blogger by phone.  They know each other.

The Times on line (UK) has run a similar theme to the Australian Press reports with  Vogue model Liskula Cohen wins right to unmask offensive blogger, but it should know better.  It identified Richard Horton, the Night Jack blogger, months ago and fended off his attempt to maintain anonymity publish his details prompting a breathless analysis in June under the banner Analysis: bloggers can no longer be sure on anonymity,  The decision, by Mr Justice Eady, of The Author of a Blog v Times Newspapers Limited refusing an injunction to protect a blogger’s anonymity is hardly ground-breaking law.

There has never been a separate stand alone right to unmask/identify a blogger.

The interlocutory decision of the Manhattan Supreme Court sets no precedent.  The case involves long established principles Read the rest of this entry »