The latter point in particular is worth extra emphasis. While the gist of judicial reasoning in decisions like Gutnick is that defamation liability could theoretically attach wherever defamatory material is downloaded, most of the time Australians are effectively safe from actions for civil defamation in foreign jurisdictions.
Unless you possess commercial assets or interests in another country, it's financially impractical for a defamed party to trouble with the expense of suing you there. However, if you end up travelling to another country where a legal action has been brought against you, you could in all reality be arrested at the airport.
"The two that spring to mind because of their popularity for travel for Australians are Thailand and Vietnam," says Pearson, "both of which have an incredibly poor track record with free expression and have been quite active in pursuing and jailing people who breach publication guidelines."
Examples of the risks travellers face include the case of US-based lawyer and blogger Gopalan Nair, who was jailed in Singapore for criticising a judicial officer, and Harry Nicolaides, an Australian who was jailed in Thailand for writings deemed critical of the monarchy.
Old laws, new interpretations
While much classic case law regulating defamation hails from a technologically distant era (a significant legislative overhaul of Australia's defamation laws in 2006 didn't seek to address issues posed by web communication), case by case, common law is slowly adjusting to the legal challenges of social media.
"Judges are applying the traditional laws to new fact situations, and those new fact situations become law themselves. That's the way it's always happened, and it's often been a mistake to write certain new technologies into the law, into legislation, because these technologies can change quite rapidly," Pearson says. "What we have is a whole series of cases throughout the world, particularly throughout our US/British legal system, that would serve as precedents for our courts, and some within Australia itself. So in recent months, the last year or so, we've had important decisions applying the law or breaking new ground with social media."
Examples include ACCC v Allergy Pathway and Clarke v Nationwide News, two cases in which the Federal Court held that a party could be liable as a publisher for comments made by fans on its Facebook page — due to being made aware of the posts and not removing them (significant decisions for anybody who has responsibility for a web site, blog or social media page).
Most recently, the Victorian Supreme Court held in Trkulja v Google that Google could be held liable as a publisher for defamation communicated by its search engine results, having failed to act on requests to take down the defamatory material.
"For the law of defamation, the common law, the question of publication has always been very broad, much broader than people would realise," says Justin Castelan. "Let's say you wanted to sue for an article written in the newspaper. You can sue the author of the article, the journalist, the publisher of the newspaper and the editor, because they're all deemed to be publishers."
Strictly speaking, you can even sue the local newsagent, who is also deemed to be a publisher for selling the defamatory communication, although newsagents can often claim the defence of innocent dissemination.
Damage Control
In light of the above, it might seem disturbingly easy to defame people on the internet and social media — and it is — but with the right approach, you can avoid putting yourself in hot water. Strange though it might sound, there's considerable legal wisdom in the childhood lesson: 'if you don't have anything nice to say, don't say anything at all'.
