The Law of Defamation and the Internet

Update 5

Mickelberg v 6PR Southern Cross Radio Pty Ltd [2001] WASC 150

Australian decision concerning whether the publication of a radio interview via the Internet is deemed to be libel by s 206 of the Broadcasting Services Act 1992 (Cth).

The plaintiffs brought an action in relation to an allegedly defamatory interview which was broadcast on a Perth radio station (the radio publication), and simultaneously via audio-streaming from the station’s website (the Internet publication).

The distinction between libel and slander remains relevant in Western Australia. Libel is actionable per se. Slander, on the other hand, is actionable only on proof of special damage. The plaintiffs had not alleged that they had suffered special damage by reason of the allegedly defamatory interview. The defendant brought an application to strike out the plaintiffs’ cause of action based upon the Internet publication of the interview.

Section 206 of the Broadcasting Services Act 1992 (Cth) (‘the BSA’) provides that ‘For the purposes of the law of defamation, the broadcasting or datacasting of matter is taken to be publication of the matter in a permanent form.’ That provision has been interpreted as deeming defamatory radio and television programmes to be libel for the purposes of Australian defamation law.

Hasluck J of the Western Australian Supreme Court ‘inclined to the view’ that the publication of a radio interview via the Internet does not amount to the ‘broadcasting’ of the interview for the purposes of s 206 of the BSA. His Honour’s conclusion was based, in essence, on his view that audio-visual material made available via the Internet does not fall within the definition of ‘broadcasting service’ in s 6(1) of the BSA, and that such material therefore falls outside the ambit of s 206. Hasluck J granted the plaintiffs leave to replead the cause of action based on the Internet publication.

This decision is, with respect, incorrect and should not be followed. While it is true that Internet publications fall outside the scope of the definition of ‘broadcasting service’ in s 6(1) of the BSA, it does not follow that Internet publications cannot amount to the ‘broadcasting of matter’ for the purposes of s 206. The qualifications to the definition of a ‘broadcasting service’ in paragraphs (a)–(c) of s 6(1), which were relied upon by his Honour, impose a limit on the ‘services’ which are regulated by the BSA, but should not be seen as affecting the meaning of the word ‘broadcasting’. That word should be given its ordinary English meaning. For the reasons identified in paras 4.16–4.22 of The Law of Defamation and the Internet, the better view is that where material published via the Internet is in the nature of a television or radio programme, it constitutes the ‘broadcasting of matter’ for the purposes of s 206, even though that material does not satisfy the definition of a ‘broadcasting service’ in 6(1).

A copy of the decision is available by following this link.

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