Jurisdiction and choice of law rules for defamation actions in Australia following the Gutnick case and the Uniform Defamation Legislation.

• Author: Robilliard, Belinda

This article considers the private international law rules applying to tort actions generally, and the tort of defamation in particular, within Australia, the United Kingdom, Canada and the United States. It identifies outstanding jurisdictional and choice of law issues which remain for defamation actions in Australia following Dow Jones & Company Inc v Gutnick (1) (Gutnick') and the passage of the Uniform Defamation Legislation and, using an economic analysis, evaluates whether Australia's current private international law rules are meeting the policy objective of promoting certainty in the application of the law.

This article finds that the decision in the Gutnick case increase costs for publishers by article finds that the decision in the Gutnick case increases costs for publishers by requiring them too consider many legal standards in assessing the risk to which they are exposing themselves by publishing on the Internet. Further, while the Uniform Defamation Legislation ('UDL') has created greater certainty for publishers, by harmonising state and territory substantive defamation laws and mandating a single substantive law apply to all publications in Australia, it falls short by failing to address the high level of uncertainty regarding the ability of a plaintiff to recover damages from an Australian court for harm suffered as a result of an overseas publication.

This article concludes that uncertainty regarding the Australian choice of law rules for defamation could be addressed by extending the choice of law rules contained in the UDL to overseas publications. It also suggests that the expansive jurisdictional reach of Australian courts in relation to defamation could be addressed through the adoption of a less onerous forum non conveniens test.

Introduction

In less than a decade, the application of Australian private international law to torts has undergone considerable transformation, especially in relation to defamation.

First, the choice of law rules for torts generally underwent substantial change as a result of John Pfeiffer Pty Limited v Rogerson (2) ('Pfeiffer') and Regie Nationale des Usines Renault SA v Zhang (3) ('Zhang). As a result, choice of law rules in Australia for both interstate and international torts are generally governed by the law of the place of the tort (or lex loci delicti).

Second, the High Court's decision in Gutnick (4) provided the High Court of Australia with the opportunity to apply private international law rules in the context of defamation occurring on the Internet. The decision raises questions, from a policy point of view, regarding the extend to which a publisher can practically comply with the defamation laws of various countries in the case of multi-jurisdictional publications. This aspect of the case, more so than the principal finding (that the place of downloading is ordinarily the place where an Internet defamation occurs) attracted significant discussion and criticism.

Third, after nearly 30 years of calls for reforms, all Australian states and territories finally enacted substantially uniform defamation laws by the end of 2006. Relevantly, these laws prescribe choice of law rules for intranational publications. However, the common law, including its choice of law rules, has been left intact for cases involving publications occurring outside of Australia.

These various developments have extensively changed the private international law framework for defamation proceedings in Australia. The assessment of the evolving rules and consideration of unresolved issues forms the basis of this article.

1. The Australian Legal Framework

   1. The Tort of Defamation

      Defamation may be defined as the tort of publishing to persons, other than the person defamed, imputations the effect of which is to lower the reputation of the person defamed in the eyes of the public at large. (5) In Australia, a prima facie case for a defamation action is based on strict liability, hence a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care, (6) though there are a number of recognised defences. Australian defamation laws are primarily state and territory laws. Consequently, the law and its available defences largely differed within Australia prior to 2006.

      Defamation, by its nature, is likely to give rise to private international law issues. Parties involved in a defamation action may not be in the same place as where the action occurs--the tortious act, publication and injury can each occur in more than one jurisdiction. (7) Also, the nature of defamation is less jurisdictionally constrained than some other causes of action involving the publishing of information, due to its strong focus on damage suffered by the plaintiff rather than on the behaviour of the defendant. (8) Moreover, the advent of the Internet, and other forms of trans-boundary communication, (9) has increased the likelihood of defamation action raising issues of choice of law and jurisdiction. (10)

   2. Jurisdiction and Forum Non Conveniens

      Subject to the principle of forum non conveniens, (11) Australian courts will exercise jurisdiction where the defendant has been served within the territorial jurisdiction of the court, where the defendant has voluntarily submitted to the jurisdiction of the court, or where service outside the jurisdiction is authorised by the rules of court. (12) In most Australian jurisdictions, service outside Australia is permitted by the rules of court in proceedings 'founded' or 'based' on a tort committed in the forum, (13) or brought for damage suffered wholly or partly within the jurisdiction caused by a tortious act or omission, wherever occurring. (14)

      While a court may be able to assume jurisdiction this does not mean the court will necessarily exercise it. In Australia, a court will not exercise jurisdiction where it can be shown that the chosen state or territory is a 'clearly inappropriate forum'. (15) Factors that are relevant to this test include matters affecting convenience and expenses, the place of domicile of the parties, the place where relevant events occurred, the location of witnesses and any legitimate personal or juridical advantage available to the plaintiff in the forum, which would not be available in an alternative forum. (16)

   3. Choice of Law Rules for Torts-the Pfeiffer and Zhang Cases

      Choice of law rules are used to resolve the question of which laws should apply to proceedings that have connections with more than one state or country. (17) In 2008, the High Court in the Pfeiffer (18) case held that the lex loci delicti should apply without exception as the governing law for an interstate tort (19) and limitation periods and damages should be considered as substantive matters for this purpose. Two years later, the High Court adopted the lex loci delicti in respect of torts committed abroad in Zhang (20) and concluded foreign limitation periods as substantive matters also. (21) However, in respect of foreign torts, the High Court reserved for future consideration the circumstances in which policy considerations might direct that an action not be maintained in Australia (22) and whether damages should be treated as procedural or substantive. (23)

   4. The Gutnick Case

      Also in 2002, the High Court of Australia was presented with the opportunity to consider issues of jurisdiction and the application of the new lex loci delicti choice of law rule to a defamation action concerning an Internet publication. The case involved an action against Dow Jones & Company Inc ('Dow Jones'), a US-based corporation, which published material on the Internet that was allegedly defamatory of Mr Gutnick. At the time of the defamatory statement, Mr Gutnick lived in Victoria and bad his business headquarters there. Mr Gutnick brought an action in the Supreme Court of Victoria to recover damages for injury to his reputation sustained in Victoria only. (24)

      The trail judge established jurisdiction on the basis that (a) the proceeding was founded on a tort committed within Victoria (25) and (b) the proceeding was brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act. (26) On the basis that the defamation of which Mr Gutnick complained occurred in the forum, Hedigan J concluded Victoria was not a clearly inappropriate forum. Dow Jones sought but was refused leave to appeal to the Court of Appeal of Victoria. Dow Jones then appealed to the High Court. All seven High Court judges dismissed the appeal, however Kirby J expressed dissatisfaction with the overall result in the case. (27)

      (i) The Place Where the Tort of Defamation is Committed

      In ascertaining where in substance the cause of action arose, (28) the High Court considered that, ordinarily, the tort of defamation is located at the place where damage to reputation occurs, (29) and damage to reputation occurs when a defamatory publication is comprehended by the reader, the listener or observer. (30) Applying these principles to the Internet, the court concluded that material is not in comprehensible form until it is downloaded, as it is only where a person downloads the material that damage to reputation may be done. Consequently, the place of downloading will ordinarily be the place where the tort of defamation is committed. (31)

      (ii) Consideration of Widely Disseminated Publications-Endorsement of a Multiple Publication Rule in Respect of the Internet

      The court noted the long-established common law rule that every communication of a defamatory matter founds a separate cause of action. (32) As a consequence, it may be possible for a plaintiff...