Hyperlinking and Defamatory Publication: A Question of "Trying to Fit a Square Archaic Peg into the Hexagonal Hole of Modernity"?

Publisher:
Butterworths
Publication Type:
Journal Article
Citation:
Australian Bar Review, 2012, 36 (2), pp. 137 - 170
Issue Date:
2012-01
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The internet poses a major challenge to legal regulation.Should `old law be applied to the `new technology or is internet technology so special that it warrants modifying the `old law, or even abandoning it in favour of a new regulatory regime? Last year the Canadian Supreme Court departed from tradition and declined to apply the traditional bilateral publication rule to determine whether hyperlinking to defamatory material constitutes publication of that material for the purposes of the law of civil defamation. This article examines this landmark decision and its three new approaches to the question of hyperlinking and defamatory publication. It also considers whether, and if so to what extent, Australian courts would be prepared to follow the Canadian lead on this important question. The internet is integral to modern-day communication and hyperlinks are integral to communication across the internet. The Canadian decision sparks new conversations about defamation on the internet and internet regulation generally.
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