International Law

Mark Pesce sent me a link to this article in the New York Times, "Venting Online, Consumers Can Find Themselves in Court", which I think raises an interesting issue for us here in Australia.  Here is an extract from the article:

After a towing company hauled Justin Kurtz?s car from his apartment complex parking lot, despite his permit to park there, Mr. Kurtz, 21, a college student in Kalamazoo, Mich., went to the Internet for revenge.

Outraged at having to pay $118 to get his car back, Mr. Kurtz created a Facebook page called ?Kalamazoo Residents against T&J Towing.? Within two days, 800 people had joined the group, some posting comments about their own maddening experiences with the company.

T&J filed a defamation suit against Mr. Kurtz, claiming the site was hurting business and seeking $750,000 in damages.

Web sites like Facebook, Twitter and Yelp have given individuals a global platform on which to air their grievances with companies. But legal experts say the soaring popularity of such sites has also given rise to more cases like Mr. Kurtz?s, in which a business sues an individual for posting critical comments online.

The towing company?s lawyer said that it was justified in removing Mr. Kurtz?s car because the permit was not visible, and that the Facebook page was costing it business and had unfairly damaged its reputation.

Some First Amendment lawyers see the case differently. They consider the lawsuit an example of the latest incarnation of a decades-old legal maneuver known as a strategic lawsuit against public participation, or Slapp.

The label has traditionally referred to meritless defamation suits filed by businesses or government officials against citizens who speak out against them. The plaintiffs are not necessarily expecting to succeed ? most do not ? but rather to intimidate critics who are inclined to back down when faced with the prospect of a long, expensive court battle.

?I didn?t do anything wrong,? said Mr. Kurtz, who recently finished his junior year at Western Michigan University. ?The only thing I posted is what happened to me.?

Read more here.  While many States in America have anti-Slapp laws (and Congress is considering legislation to make it harder to file such a suit), Australia does not have any such protection.  It could be argued that Australia does not need anti-Slapp laws because, generally speaking, corporations do not have a cause of action for defamation in Australia.  However, this is immaterial because of the tort of injurious falsehood, which allows corporations to sue for false statements concerning their goods or business.

Given the financial and power imbalance between a business and an individual who has posted a critical comment online, I think Australia should also consider whether we need anti-Slapp laws.  Internet users should feel free to post comments, reviews and even criticisms of businesses online, without the fear of being threatened or intimidated with costly and flawed lawsuits.