San Francisco-based international digital rights group Electronic Frontier Foundation (EFF) has succeeded in challenging an Australian court injunction in a United States district court, which ruled that the Australian ruling was "repugnant" to the US Constitution's First Amendment.
The novel case highlights the stark differences in the broad protections afforded under the United States constitution, and the limited protections available in Australia for freedom of speech.
In October, 2016, Australian company Global Equity Management SA Pty Ltd (GEMSA) succeeded in obtaining a court injunction from the South Australian Supreme Court against EFF after the GEMSA and its patents were discussed in EFF's Stupid Patent of the Month series.
EFF lambasted GEMSA for its registration of a patent over the idea of using virtual cabinets to represent data storage and organisation. It also wrote about the company's patent litigation against a number of different entities, describing it as a "classic patent troll".
Unlike the US constitution, Australia has no express free speech protections. The threshold for launching defamation and libel cases in the country is much lower than in the US.
GEMSA succeeded in gaining an injunction against the organisation restraining it from publishing further material, also known as "prior restraint". The proceedings are still active and there has been no final determination on the defamation case.
Injunctions in other jurisdictions can be challenged in the US under a 2010 Act aimed at preventing "libel tourism", where court actions are taken in countries that have more limited speech protections. EFF launched proceedings in the US District Court of California earlier this year.
District court judge Jon Tigar considered the defamation claim by GEMSA, and the likelihood of success in the United States. He found that it had virtually no prospect of success, and that "not one of the alleged defamation statements would be defamation under California law".
Judge Tigar went further, finding that the South Australian Supreme Court never had jurisdiction over EFF, because it was not given proper legal notice of the legal action.
"The court concludes that the Australian court lacked jurisdiction over EFF, and that this constitutes a separate and independent reason that EFF would prevail," he wrote.
He made an order for default judgement against GEMSA, which never appeared in the court, and failed to enter any appearance. BuzzFeed News contacted the company, but it has not responded.
EFF's Kurt Opsahl wrote in an analysis of the decision that, "While GEMSA knows its way around U.S. courts — having filed dozens of lawsuits against big tech companies claiming patent infringement — it failed to respond to ours."
Paul Farrell is a senior reporter for BuzzFeed News and is based in Sydney.
Contact Paul Farrell at firstname.lastname@example.org.
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