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A recent decision by a judge of the New South Wales Supreme Court is an illustration of the "anarchy" of the Internet and the difficulty of applying traditional legal principles in relation to it and the people who use it.
Mr Berg, a US citizen, had been employed by Macquarie Bank for a short period. The bank terminated Berg's employment after serious differences had arisen between them. Berg returned to the US, sued the bank and established an internet website which contained material defamatory of the bank and some of its executives. The bank and one of its executives applied to the New South Wales Supreme Court for an injunction restraining publication of that material on the Internet.
The Judge refused the application. She found that the material was defamatory. She found that Berg was not present in New South Wales and that his actions, which resulted in publication of the material on the Internet, were carried out outside New South Wales. She said that, although the Court had power to restrain conduct occurring outside the jurisdiction, the exercise of that power was a matter for the Court's discretion.
The Judge made the following observations on the question of discretion:
Clearly, the legal system faces an enormous challenge to devise ways of dealing with the Internet and balancing the many competing interests. There are likely to be many more cases as the courts attempt to come to grips with the issues.
- "It seems to me unsatisfactory to make orders the effectiveness of which is solely dependent upon the voluntary presence, at a time of his selection, of the person against whom the orders are made."
- " . . . once published on the Internet, material is transmitted anywhere in the world that has an Internet connection. . . . The difficulties are obvious. An injunction to restrain defamation in NSW is designed to ensure compliance with the laws of NSW, and to protect the rights of plaintiffs, as those rights are defined by the laws of NSW. Such an injunction is not designed to superimpose the law of NSW relating to defamation on every other state, territory and country of the world. Yet that would be the effect of an order restraining publication on the Internet. . . . It may very well be that, according to the law of the Bahamas, Tazhakistan [sic] or Mongolia, the defendant has an unfettered right to publish the material. To make an order interfering with such a right would exceed the proper limits of the use of the injunctive power of this court."
- "Such a power is to be exercised with great caution, and only in very clear cases . . . . This . . . is largely for two reasons of principle. The first is that, while it may be relatively easy to establish, prima facie, that a publication is defamatory, the key to a defamation action very often lies in the defences advanced, and these cannot ordinarily be determined at the stage of an interlocutory injunction application. . . . The second reason concerns the fundamental public interest in freedom of speech and freedom of information."