172
Regional Overviews
require authors and publishers to take into
account the laws of foreign countries under
which they could be sued when publishing material online. 58
The court countered, however, that the
“spectre of ‘global liability’ should not be exaggerated. Apart from anything else, the costs and
practicalities of bringing proceedings against a
foreign publisher will usually be a sufficient
impediment to discourage even the most intrepid of litigants. Further, in many cases of this kind,
where the publisher is said to have no presence
or assets in the jurisdiction, it may choose simply
to ignore the proceedings. It may save its contest
to the courts of its own jurisdiction until an
attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this
especially if that judgment was secured by the
application of laws, the enforcement of which
would be regarded as unconstitutional or otherwise offensive to a different legal culture.” 59 The
parties eventually settled for AU$180,000 in damages and AU$400,000 in legal fees.” 60
New Zealand defamation law was first found
to apply to online material in a District Court decision, O’Brien v. Brown, in late 2001. In the case,
Patrick O’Brien, CEO of the New Zealand domain
manager Domainz, sued Alan Brown, the head of
a Manawatu ISP, for Brown’s posting of harsh criticisms and calls for fraud investigation into
Domainz on a publicly available Internet Society
of New Zealand bulletin board. 61 The judge in the
case found that the Internet afforded no additional freedom of expression to the defendant than
any other medium and, further, that publication
on the Internet required a greater award of damages than through another medium because of
the ease with which Domainz’s potential customers and clients could access the defamatory
material. 62
In addition the New Zealand courts have followed in Australia’s example in determining the
jurisdiction for defamation suits over online content hosted in a foreign country. Ironically
enough, the relevant suit involved an Australian
defendant. In 2004 the Wellington High Court
found that the University of Newlands (based in
New Zealand) could sue Nationwide News Ltd.
(based in Australia) in New Zealand court for
Nationwide’s inclusion of the plaintiff in a list of
“Wannabe Unis” and “degree mills” in its online
newspaper, The Australian. This essentially
eschewed the United States’ rule of “single publication” and more closely aligned New Zealand
defamation policy with Australia. 63
Security
Both Australia and New Zealand have taken
steps toward greater Internet security in their
countries, passing laws to give government
agencies greater authority to investigate illegal
activities online.
Australia’s Internet surveillance regime is
primarily based on two laws. The first is the
Telecommunications (Interception and Access)
Act 1979. This act, amended in June 2006, prohibits intercepting telecommunications or
accessing, without first notifying both the sender
and the receiver, stored telecommunications by
any person or entity, except in cases such as the
installation or maintenance of telecommunications equipment. 64 It also establishes two warrant
systems, controlled by the Attorney General, by
which law enforcement may gain access to these
communications: “telecommunications service
warrants” (for real-time interception) and “stored
communications warrants” (for access to stored
communications without a requirement to notify
the communicants). 65
The second relevant law is the Surveillance
Devices Act 2004, which significantly increases
the authority of law enforcement to install surveillance devices such as key-stroke recorders
under newly created “surveillance device warrants.” 66 Electronic Frontiers Australia has
expressed worry that these warrants will be used
by law enforcement to avoid applying for a
telecommunications service warrant, essentially
Regional Overviews
require authors and publishers to take into
account the laws of foreign countries under
which they could be sued when publishing material online. 58
The court countered, however, that the
“spectre of ‘global liability’ should not be exaggerated. Apart from anything else, the costs and
practicalities of bringing proceedings against a
foreign publisher will usually be a sufficient
impediment to discourage even the most intrepid of litigants. Further, in many cases of this kind,
where the publisher is said to have no presence
or assets in the jurisdiction, it may choose simply
to ignore the proceedings. It may save its contest
to the courts of its own jurisdiction until an
attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this
especially if that judgment was secured by the
application of laws, the enforcement of which
would be regarded as unconstitutional or otherwise offensive to a different legal culture.” 59 The
parties eventually settled for AU$180,000 in damages and AU$400,000 in legal fees.” 60
New Zealand defamation law was first found
to apply to online material in a District Court decision, O’Brien v. Brown, in late 2001. In the case,
Patrick O’Brien, CEO of the New Zealand domain
manager Domainz, sued Alan Brown, the head of
a Manawatu ISP, for Brown’s posting of harsh criticisms and calls for fraud investigation into
Domainz on a publicly available Internet Society
of New Zealand bulletin board. 61 The judge in the
case found that the Internet afforded no additional freedom of expression to the defendant than
any other medium and, further, that publication
on the Internet required a greater award of damages than through another medium because of
the ease with which Domainz’s potential customers and clients could access the defamatory
material. 62
In addition the New Zealand courts have followed in Australia’s example in determining the
jurisdiction for defamation suits over online content hosted in a foreign country. Ironically
enough, the relevant suit involved an Australian
defendant. In 2004 the Wellington High Court
found that the University of Newlands (based in
New Zealand) could sue Nationwide News Ltd.
(based in Australia) in New Zealand court for
Nationwide’s inclusion of the plaintiff in a list of
“Wannabe Unis” and “degree mills” in its online
newspaper, The Australian. This essentially
eschewed the United States’ rule of “single publication” and more closely aligned New Zealand
defamation policy with Australia. 63
Security
Both Australia and New Zealand have taken
steps toward greater Internet security in their
countries, passing laws to give government
agencies greater authority to investigate illegal
activities online.
Australia’s Internet surveillance regime is
primarily based on two laws. The first is the
Telecommunications (Interception and Access)
Act 1979. This act, amended in June 2006, prohibits intercepting telecommunications or
accessing, without first notifying both the sender
and the receiver, stored telecommunications by
any person or entity, except in cases such as the
installation or maintenance of telecommunications equipment. 64 It also establishes two warrant
systems, controlled by the Attorney General, by
which law enforcement may gain access to these
communications: “telecommunications service
warrants” (for real-time interception) and “stored
communications warrants” (for access to stored
communications without a requirement to notify
the communicants). 65
The second relevant law is the Surveillance
Devices Act 2004, which significantly increases
the authority of law enforcement to install surveillance devices such as key-stroke recorders
under newly created “surveillance device warrants.” 66 Electronic Frontiers Australia has
expressed worry that these warrants will be used
by law enforcement to avoid applying for a
telecommunications service warrant, essentially