Laws not yet up to date with the online and digital age

A business attacked online has several remedies open to it including Supreme Court injunctions and possible claims for defamation and breach of copyright and even in some cases criminal charges under Australia’s Telecommunications legislation.

The issue became a public one in late May when a website appeared, attacking a high profile Brisbane restaurant and its owner. Although subsequently taken off line, the site featured actionable remarks about the restaurant owner and his businesses.

Police acknowledged receipt of a formal complaint over the website attack but a university law lecturer reportedly said businesses almost had to rely on the goodwill of website servers to maintain their reputation.

As a media and defamation lawyer I do not subscribe to this view.

As a media and defamation lawyer I believe people posting derogatory personal remarks on websites or “flaming” others on social sites or web forums need a sharp wakeup call.

There seems to be a feeling that nothing can be done and you just throw your hands up in the air. In fact there are ways for victims of online attacks to fight back, but we need the laws to be updated and brought into line with the online world of the Internet.

I have been involved in proceedings to thwart online attackers and have successfully obtained appropriate court restraining orders and in one matter I was involved in, criminal sanctions were imposed against the offending party.

The attack on the Brisbane restaurant owner is certainly not a first as the Internet is still in some ways a bit like the lawless Wild West.

The laws governing its use especially in the areas of defamation and contempt, are still evolving as regulators grapple with a rapidly expanding virtual world of people using the Net to push their opinions.

Users of social networking sites risk facing defamation and other legal actions for remarks they make online about others. I expect the number of legal actions to balloon until people posting on social network sites or uploading blogs realise the laws are not confined to traditional media outlets.

A recent furore in Britain over the naming on Twitter by around 75,000 people of a married footballer allegedly involved in an extra-marital affair highlights some of the difficulties confronting the legal system in policing online law and order.

There was a strict gagging order made by a British court but despite this thousands on Twitter spread the English footballer’s name. A British MP subsequently said it was impractical to imprison them all.

It potentially makes a mockery of the courts and the legal system in general if this is allowed to continue to happen. The law may not be able to muzzle Twitter but an example could be made of at least some of those responsible for knowingly breaching the court’s order. It would send a strong message through the Twitterverse.

Earlier this year American rocker Courtney Love learned a $US430,000 lesson from venting her personal feelings on Twitter after she settled a legal action brought by fashion designer Dawn Simorangkir over a disputed payment. Love used her Twitter account for a reported vitriolic tirade against the designer, and the subsequent suit made world headlines.

Simorangkir accused Courtney Love of ruining her business with allegedly defamatory tweets posted in 2009. Love reportedly argued her rants were simply expressing an opinion.

The fashion designer argued Love’s influence as an entertainer and the power of social media to disseminate damaging comments had harmed her business.

The lessons from this matter apply equally here in Australia. We need to correct this attitude by online users that they are somehow immune from the laws of defamation. The law of defamation applies equally to all forms of communication, whether it be via the postal service, the media, electronic or otherwise.

The challenge facing us now is to correct that attitude out there that defamation, contempt and certain other laws only apply to print media, radio and TV. The fact is if someone makes false and derogatory remarks about another in any public forum, the other party can and probably will defend their reputation.

Young people using sites such as these could lay themselves open to defamation actions or in some circumstances possible criminal actions if they attack others on internet forums or networking sites.

So it is crucial to dispel the myth that personal remarks on the Net are somehow not actionable. Equally, those who are attacked- particularly if their businesses’ existence could be harmed- need to know they have legal remedies.

Australian businesses attacked on line on overseas- based websites also still have some options to fight back. One is to insist the server host of the website remove the offending material or the site.

In one action in which I was recently involved the website host was put on notice to shut down the site or risk legal action itself. Obviously you have more clout if the site is based in Australia, but foreign sites are not immune.

Technology now allows people to upload comment and opinion without any other person or party being involved or, crucially, checking the material first for defamation or other legal risks.

My message to businesses vilified online is don’t assume you have no legal rights or remedies. You can fight back but at the same time our lawmakers need to urgently update the legislation in order to tighten up the laws as they apply to the internet.