The case of Macquarie Bank Ltd v Berg basically said that defamation of a person, or company as the case may be, is alright as long as you are in another country! In this case, Berg was a disgruntled ex employee of Macquarie Bank, and as a matter of course, he decided to post defamatory information regarding certain senior members of the bank (including incriminating sound bytes). Of course, Macquarie bank got quite upset, and decided to sue Berg in the NSW Supreme Court. However, the nasty business of jurisdiction cropped up as Berg was now under US jurisdiction.
Simpson J in the NSW Supreme court said that the material was defamatory, but as a procedural matter they would not grant an injunction for an ex parte interlocutory case. Simpson J said that if they took jurisdiction for a website in California, they could then superimpose their laws onto any other country in the world. Basically, just because Berg was in another country, he was allowed to defame as he pleased :P. Funnily enough, just by litigating on the matter, thousands of people would have visited Berg's site as a matter of public interest! So by litigating, the tiny site made by a noone was cast into the spotlight - perhaps by keeping it quiet it would have disappeared into oblivion and there would have been no need to seek an injunction!
For more information on this interesting case, click here!
Of course, this couldn't be the answer to 'cyberspace' defamation, could it? Well in Gutnick v Dow Jones, Dow Jones, known for its publication, the Wallstreet Journal, published an article titled "Unholy Gains" in an online subscription service with various 'comments' about Joseph Gutnick, an Australian Business man and former president of the Melbourne Football club, who resided in Victoria. Following the decision handed down in Berg, one would think that the same jurisdiction problems would arise. The High Court of Australia disagreed.
In a unanimous decision, all seven High Court justices decided that Gutnick had the right to sue for defamation at his primary residence and the place he was best known. Victoria was considered the place where damage to his reputation occurred. The High Court decided that defamation did not occur at the time of publishing, but as soon as a third party read the publication and thought less of the individual who was defamed. The High Court's ruling effectively allows defamation plaintiffs in Australia to sue for defamation on the internet against any defendant irrespective of their location. "If people wish to do business in, or indeed travel to, or live in, or utilize the infrastructure of different countries, they can hardly expect to be absolved from compliance with the laws of those countries. The fact that publication might occur everywhere does not mean that it occurs nowhere." (per Callinan J at para 186)
Of course, this was just on the question of jurisdiction! The case concerning the defamation was never heard, however it was released that a settlement was reached between Gutnick and Dow Jones for $440,000.00. However, the author (Alpert I believe his name was) stated he wished to appeal to the UN Human Rights committee, although to this date nothing has come of this (publicity stunt?).If you have read this far, unfortunately the law in Australia seems to point to the 'effects test' (where the correct jurisdiction is the place where the actual harm occurs). So your enemy needs to be in a country with more liberal defamation laws than ourselves :P
For a more comprehensive look at this issue, you need to look at the cases which occurred before during and after the two mentioned above.
