Australia rules on where to sue for internet defamation
OUT-LAW News, 10/12/2002
In a landmark decision, Australia's High Court ruled today that in defamation cases, an article posted on the internet is considered as published at the point where it is downloaded and read.
The case was brought by Australian businessman Joseph Gutnick against US publishing group Dow Jones & Company. Dow Jones, publisher of the Wall Street Journal, operates WSJ.com, a news site where users can access the company's newspapers and the Barron's Online magazine.
Gutnick claimed that a Barron's Online article, published in October 2000, defamed him, and he sued Dow Jones in Victoria, where his business is headquartered. He argued that the case should be heard in Australia, because he was only interested to re-establish his allegedly damaged reputation there.
Dow Jones, on the other hand, argued that Australian courts did not have jurisdiction in the case. The publisher claimed that the allegedly defamatory article was published in the US, where the company's web servers are located, and therefore the case should be heard there.
It also claimed that the establishment of jurisdiction where internet material is downloaded would unreasonably expose web publishers to defamation suits all over the world and therefore restrict freedom of speech.
After its arguments were rejected by two lower Australian Courts, Dow Jones brought the case before the country's High Court.
The court considered submissions by 18 media organisations, including AOL Time Warner, the Associated Press, Reuters and Yahoo!. It upheld the earlier decisions, reasoning that "jurisdiction and the place of wrong are established in Victoria" and dismissed the appeal.
The court said in its decision: "Victoria is a clearly appropriate forum for the litigation of [Gutnick's] claim to vindicate his reputation which has been attacked in Victoria, as well, plainly as elsewhere."
It played down, however, the notion that those who publish defamatory material on the internet are answerable before the courts of any nation where the damage to reputation has occurred.
The court considered that this "spectre of 'global' liability" is moderated by "the costs and practicalities of bringing proceedings against a foreign publisher" which "will usually be a sufficient impediment to discourage even the most intrepid of litigants."
It continued:
"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."
Dow Jones expressed "disappointment." The defamation case can now continue in Victoria's Supreme Court.
The High Court's decision can be found at:
www.austlii.edu.au/au/cases/cth/high_ct/2002/56.html
Source:
http://www.out-law.com/page-3184
Friday, September 11, 2009
Wednesday, September 9, 2009
"je ne regrette rien"
FACT: In the recent directions hearing I spoke with Mr Brisciani’s lawyers before going before the Registrar so that we might make arrangements as to how to proceed. One of the agreements was to go before mediation.
“Mediation is a confidential process where an independent and neutral third party assists the disputants to negotiate and reach a decision about their dispute.”
- Source: http://www.iama.org.au
FACT: On his site Mr Brisciani has said the following statement regarding the mediation…
“Most recently, Greg Smith has indicated he would like to meet to discuss ending this. I hope he's not hoping for an apology or payout.”
FACT: So Mr Brisciani has now publicly stated that WILL NOT apologise for the [alleged] defamatory publications.
And yet he wonders why the matter needs to be pursued through the courts.
“Mediation is a confidential process where an independent and neutral third party assists the disputants to negotiate and reach a decision about their dispute.”
- Source: http://www.iama.org.au
FACT: On his site Mr Brisciani has said the following statement regarding the mediation…
“Most recently, Greg Smith has indicated he would like to meet to discuss ending this. I hope he's not hoping for an apology or payout.”
FACT: So Mr Brisciani has now publicly stated that WILL NOT apologise for the [alleged] defamatory publications.
And yet he wonders why the matter needs to be pursued through the courts.
Thursday, September 3, 2009
CHOICE Computer magazine puff piece
On 02 September 2009 CHOICE Computer magazine published an article prima facie concerning online censorship. The article appears to be an apology piece for Tony Brisciani and zgeek. The article reports incorrect facts, fails to report likely bias, and makes no attempt to discover the truth behind the events it claims to report. I will state the facts that correct this inaccurate reporting.
CC ARTICLE: "Tony Brisciani is being sued over comments posted by a member on the site's forum."
FACT: Tony Brisciani is being sued over multiple publications he made on his site, zgeek. There were several authors of the publications.
CC ARTICLE: "The issue relates to a war of words about a book that says the 9/11 terrorists attacks were a conspiracy."
FACT: The issue before the courts relates to Tony Brisciani publishing comments stating as fact that Greg Smith as a "scam artist" and a "fraud". Greg Smith first posted on the forum to give a brief review of an exert from the book 'The Third Truth'.
CC ARTICLE: "The defamation action has been brought by
FACT: The defamation action has been brought because damaging lies about Greg Smith were published by Tony Brisciani. The documentary 'MERCHANT OF DEATH' detailed the life and times of alleged arms-dealer Viktor Bout. The documentary had nothing to do with the 9/11 attacks in the
CC ARTICLE: "[Smith] claims that the comments about the book and the subject, arms dealer Viktor Bout, have damaged his reputation and caused him to lose substantial funding."
FACT: The comments referred to in the law suit are the comments that refer to Greg Smith as a "scam artist" and a "fraud". The book is not referred to in Greg Smith's legal pleadings.
CC ARTICLE: "Tony Brisciani told CHOICE Computer magazine that Greg Smith was never mentioned in any of the posts."
FACT: Greg Smith was mentioned in the posts by name, business name and address on several occasions.
CC ARTICLE: [Tony Brisciani says] "I didn't know about it until later when a moderator noticed it."
FACT: Tony Brisciani wrote to Greg Smith in an email responding to Greg Smith's request to remove the posts. In this email Tony Brisciani says...
"Dear Madam,
After reviewing your threatening email, myself and my team would like to thank you for your feedback but would like to point out you're bat shit crazy and full of shit.
Please consult a real lawyer before sending out threatening emails or you may well be on the receiving end of a lawsuit yourself.
Also, I can't remember when Australian law because enforceable in the
If you could refresh my memory that would be very helpful.
The ZGeek Management."
FACT: When asked again to remove the posts, Tony Brisciani replied with...
"I hope you have deep pockets. It's going to take a lot to sue the owner as they live in the
You haven't even contacted them properly! I'm not forwarding your shit to them. And I am not going to give you their details unless a court orders me too.
So eat shit sucka! Learn to internet, you come to a forum spamming your book and you get flamed. Your such a fucking poofter you have to sue people because you can't back your shit up.
Pathetic. Go die in a fire."
FACT: Tony Brisciani posted offensive material on the initial thread, and in other areas of his site, after the publications in question were made. Tony Brisciani had full knowledge of exactly what the alleged defamatory material was.
FACT: An initial request for an injunction on the zgeek site was denied due mainly to the fact that by then the material had been removed from public display. Three days after the request for an injunction was dismissed, Tony Brisciani republished some of the allegedly defamatory material on the zgeek site.
CC ARTICLE: "... generally a person and not a company can be defamed and it must affect someone's standing"
FACT: The comments published as fact referred to Greg Smith by name.
FACT: Greg Smith has been the subject of threats by members of the zgeek community as a result of this matter. The threats were published on the zgeek forum and referred to visiting Greg Smith's residential address. Sasha Shaw, an associate of Tony Brisciani, was interviewed by NSW police regarding his involvement in a telephone death threat directed at Greg Smith.
Facts Behind the Current Defamation Case
What follows is a direct statement of facts concerning the defamation matter involving Greg Smith of Myrmidon Enterprises (plaintiff) and Tony Brisciani of zgeek (defendant). This has been published to provide interested media the facts of the matter. I have tried as much as possible to avoid using loaded terminology and to simply state the facts.
In June 2009 Greg Smith added a post (#137 of thread entitled “Aussie publishes 9/11 book – The Third Truth”, located in the section “ZGeek News > News, Reviews & Articles > News stuff > Front page news”) to a forum thread on the zgeek website, under the username “Jackal”. In the post Greg Smith stated his opinion of an exert from the book, “The Third Truth”. Greg Smith stated that he enjoyed the exert, found the arguments well-presented and interesting and recommend it to those who were interested in the subjects discussed.
Post #137
The publisher released a small pdf relating to the
The arguments are coherent and well presented. (Although I dislike reading off a computer screen.) The pictures are relevant and serve to provide excellent illustration of the points.
I'd recommend looking through it. The first half of the 56p document explains all about nukes, explosions, and 'mini-nukes'. The terminology is not dumbed down, but is simple enough that me (a non-scientist) could follow it on a first read-through.
The second half of the download goes through the events, blast damages, and injuries sustained by the
I hadn't thought about the attack as being nuclear previously, but the arguments and evidence presented are very convincing. If the topic is of interest to you, I would recommend it.
The link to the author's site can be found by searching for "3truth911".
Whatever commercial links there are can be followed from there.
Soon after, the following material was published by Tony Brisciani
- Greg Smith was identified by name; the same post stated as fact that Greg Smith’s films did not exist
- referring to Greg Smith, “If we wanted him dead, it wouldn’t take more than 24 hours.”
- that Greg Smith’s business, Myrmidon Enterprises, did not exist, and that his film ‘MERCHANT OF DEATH’ did not exist
- that Greg Smith was a “nutcase scam artist” who has made “false job postings”
- that Greg Smith was caught soliciting sex from a transsexual in
- that Greg Smith is a liar and a fraud and has placed fraudulent job offers on a film industry website
- that Greg Smith loves “to rape hamsters for fun and profit”, that he enjoys “being stuffed in a port-a-john, set on fire and kicked down a hill while wearing little boys underpants”, that he has a “casual use of paint-huffing”, is a “microphallic support charter member” and that he is into “sado-necro-beastiality with an equine inclination”.
Every single one of these publications is demonstrably false, and easily able to be established as false.
Every single one of these publications is harmful, untrue, and intended to discredit and malign the subject, Greg Smith.
One of the comments published by Tony Brisciani comprised of a zgeek member asks other zgeek members to
“add all of his [Greg Smith] contact details we can find to every spam list generator we can find”.
Contrary to any claims of a lack of knowledge or innocent behaviour, Tony Brisciani (aka “Pirate”) wrote on the zgeek site asking zgeek users to log in to other sites and
“bag out zgeek so I can sue him back”.
Tony Brisciani has also published threatening material such a post by a zgeek member states he will “pay Greg Smith a visit”. Sasha Shaw, an associate of Tony Brisciani who works at
On 20 June 2009, Greg Smith wrote to Tony Brisciani asking for the posts to be removed. Tony Brisciani’s response is quoted in full below…
Dear Madam,
After reviewing your threatening email, myself and my team would like to
thank you for your feedback but would like to point out you're bat shit
crazy and full of shit.
Please consult a real lawyer before sending out threatening emails or you
may well be on the receiving end of a lawsuit yourself.
Also, I can't remember when Australian law because enforceable in the
If you could refresh my memory that would be very helpful.
The ZGeek Management.
Greg Smith asked for
- a retraction from zgeek
- an apology from zgeek
- that the offending thread be deleted
- that an offending user be banned
Tony Brisciani’s public response on the zgeek website was to write
“Go fuck yourself. In the face.”
When informed of the forthcoming legal proceedings, Tony Brisciani wrote to Greg Smith. Tony Brisciani’s response is quoted here in full…
I hope you have deep pockets. It's going to take a lot to sue the owner as they live in the
You haven't even contacted them properly! I'm not forwarding your shit to them. And I am not going to give you their details unless a court orders me too.
So eat shit sucka! Learn to internet, you come to a forum spamming your book and you get flamed. Your such a fucking poofter you have to sue people because you can't back your shit up.
Pathetic. Go die in a fire.
Subsequently Tony Brisciani published material stating that
- Greg Smith was a con artist
- that the previously published statements are factual
- that the legal proceedings are a part of a con
- that the film ‘MERCHANT OF DEATH’ was a “shitty, poorly researched and sensationalistic moneymaking scam”
- that the film magazine ScreenHub was taking a bribe or kick-back from Greg Smith
- that Greg Smith is a charlatan
Tony Brisciani is one of the owners and operators of zgeek website business. The business is unregistered as of August 2009.
Tony Brisciani is an administrator & moderator of the zgeek website business and operates under the username of “Pirate”.
Tony Brisciani is the publisher of all material on the zgeek website.
Tony Brisciani has never offered apology to Greg Smith in any form.
Tony Brisciani has never offered restitution to Greg Smith in any form.
Tony Brisciani was warned previously by members of zgeek, and hence was aware, of the legal implications of his publications on the zgeek site.
Tony Brisciani has made repeated claims to the media that he is innocent of intentionally publishing any offensive material on his site in relation to this matter. The facts of the matter would indicate he is lying, repeatedly, about this.
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