No right of free speech for Australian critical website

In Kaplan v Go Daddy Group & 2 Ors the owners of Hunter Holden have been able to continue an interim injunction against the owners of <www.hunterholdensucks.com> a site (probably a blog) that encouraged critical comments of a Sydney car dealership.

In a case that seems to be the first Australian version of the taubmansucks.com case, the New South Wales Supreme Court was reluctant to base the injunction on either fair trading or defamation grounds. Instead it relied on the tort of injurious falsehood.

In the end it continued the injunction on the basis of the balance of convenience and that there were no public interest issues involved. Australia has no First Amendment right of free speech.

No cybersquatting issues were raised.

Some key quotes:

28 The only element of the tort that could be disputed is whether what the second defendant has published was false.  As Hayne J said in Palmer Bruyn & Parker Pty Ltd v Parsons at paragraph 154,  "If there is no false statement made it is not enough to establish injurious falsehood to show that the plaintiff is held up to ridicule." In the same way, it is not enough for the plaintiffs to show that the website was established maliciously for the purpose of disparaging the second plaintiff to its injury.  To succeed at a final hearing the second plaintiff must show that the statements the second defendant published were false....

34 It is arguable that the words "Hunter Holden Sucks" convey the imputation that the business of Hunter Holden is poorly managed, and that it provides poor products and services.  There may be other available imputations which are disparaging of the business and products of the second plaintiff.  There is a serious question to be tried that such imputations are false.

35 There is also a serious question to be tried that the other comments and headings on the site which state or imply that the second plaintiff engages in fraud, and that overcharging of its customers is rife are false.  As I have said, there is a serious question to be tried that the second plaintiff is the author or publisher of those comments. 

36 There is therefore a serious question to be tried that the second defendant has committed and threatens to commit the tort of injurious falsehood.

37 The balance of the convenience is all one way.  The second defendant would suffer no damage if the injunctions are continued.  On the other hand, if the injunctions are dissolved, the second plaintiff may suffer substantial damage which it could never prove as potential customers may be deterred from visiting it.