SMU Office of Research – Can a businessman sue a US-based publication for loss of reputation in Australia in respect of an online article? The landmark case of Dow Jones v. Gutnick suggests that it’s possible, with the Australian High Court deciding in the plaintiff’s favour on the grounds that he was suing only for the damage to his reputation in Victoria, Australia, where the online publication was accessed and downloaded by Victorians, and where the plaintiff resided and conducted some of his business dealings.
The article in question is Unholy Gains, a 7,000-word piece questioning the business practices of Joseph Gutnick, an ordained rabbi widely known as ‘Diamond Joe’ for his business interests in the mining industry. In their defence as owners of Barron’s magazine where the article appeared, Dow Jones Corporation argued that the trial should be held in the US since their servers were based there.
“The practical difference is that it is much harder to succeed in a lawsuit based on the defamation law in the US. They have stricter requirements than those in Australia, where the defamation law is more similar to English common law at that time,” explains tort law expert Gary Chan, associate professor of law at the Singapore Management University (SMU) School of Law, whose interest in defamation law was piqued by this highly controversial case.
The impact of the Internet
Dow Jones v. Gutnick is just one of the many cases that highlight the impact that moving communications onto the Internet has had on defamation law. Defamation suits can trace their origins to English common law which tends to develop incrementally. These legal principles have also been modified through statutes passed by Parliament in the common law countries, Professor Chan says.
“What the plaintiff has to do is prove defamatory meaning, that there was publication to at least one third party, and that the statement referred to the plaintiff,” he adds. “However, the advent of the Internet has made it more complicated to apply the rules consistently.”
One key issue that Professor Chan has discussed at length in an article recently published in the Singapore Academy of Law Journal is what constitutes defamatory meaning in online media. In the article, he highlighted a local case where the judge had to decide whether the different comments and threads in response to a Facebook post could be regarded collectively as a single publication. Professor Chan also commented on the case in a post on the Singapore Law Blog.
“This legal point has implications for defamatory meaning. How do you determine whether a comment is defamatory? For example, the last comment on the fifth thread may not be defamatory on its own, but if you combine it with the fourth, third, second and first thread, looking at it as a whole, it may become defamatory from the reasonable man’s point of view,” Professor Chan elaborates.
And in the book The Law of Torts in Singapore, written with SMU colleague Associate Professor Lee Pey Woan, he authored two chapters which track the development of defamation law including Internet defamation both in Singapore and beyond. The book is now in its second edition.
Suing the search engine
Apart from social media channels, one area that Professor Chan predicts that the Singaporean courts may have to deal with is defamation lawsuits against search engines. He notes that a number of such cases have already arisen in the UK, Australia and New Zealand.
“For instance, if the plaintiff complains that something defamatory shows up when users type in certain search terms concerning the plaintiff, one way is to sue the person who actually wrote the original defamatory materials. But another route is to sue the search engine,” Professor Chan says.
Whether search engines can be liable for defamation seems to vary depending on which country the case is trialled in though the legal position in each country can change over time. Pointing to a case in the UK which decided a few years ago that search engines are not liable, Professor Chan explains that the search engines were deemed not to have control over the results which were obtained by the web crawlers.
“On the other hand, I see a slight shift to the position that search engines do have some control because they can put in algorithms to program the search. There’s also the argument that they benefit commercially from the way they programme the algorithms,” he says, making reference to cases decided in Australia and New Zealand.
What counts as corporate reputation?
In this area of defamation law, Professor Chan sees great potential for inter-disciplinary research and collaboration.
“Just taking the example of corporate defamation; it raises the question of what the concept of corporate reputation is in the first place. To what extent should it be treated as a commercial asset when we assess a corporation’s loss of reputation? How should it be defined? Should corporate reputation be based on the views of society generally, or should it be based more on those of stakeholders?
“Investigating these issues involves fields relating to business, management and organisations. And of course, when it comes to Internet defamation there’s social media analytics as well,” he adds.
As the technology continues to evolve, Professor Chan believes that the intersection of the Internet, reputation and defamation law will continue to be a fruitful area of research for many years to come.
“I expect that it can take us well into the next decade and perhaps beyond. Due to differing public policy stances in different countries, it’s very possible that each country will adopt its own approach to particular aspects of defamation law,” he says. “The lack of standardisation makes this area very interesting.”
Professor Chan, whose other research interests include the Singapore legal system and ethics, has edited two other books with School of Law colleagues: The Legal System of Singapore - Institutions, Principles and Practices, co-edited with Assistant Professor Jack Tsen-Ta Lee, and Ethics and Social Responsibility: Asian and Western perspectives (third edition, forthcoming), co-edited with Practice Associate Professor George Shenoy.
By Rebecca Tan