Papers by Michael Douglas
The Supreme Court of New South Wales has issued a global injunction enjoining overseas defendants... more The Supreme Court of New South Wales has issued a global injunction enjoining overseas defendants to remove tweets of a corporate leaker. This comment (provided in draft format) first appeared in the Gazette of Law & Journalism on 29 September 2017. See http://glj.com.au/2927-article
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Oxford University Commonwealth Law Journal, 2017
In The ‘Halcyon Isle’, a bare majority of the Privy Council held that questions as to the recogni... more In The ‘Halcyon Isle’, a bare majority of the Privy Council held that questions as to the recognition of a foreign maritime lien are to be determined by the lex fori. The case divided the common law world. Recently, in The Ship ‘Sam Hawk’ v Reiter Petroleum Inc, the Full Court of the Federal Court of Australia held that The ‘Halcyon Isle’ should apply in Australia. The practical effect of the decision is that it will prevent many creditors, who could assert the existence of a maritime lien under United States law, from proceeding in rem in Australia. The case is also notable for providing a rare discussion of characterisation in a choice-of-law problem. This comment explores what The ‘Sam Hawk’ means for maritime law and private international law more broadly.
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Open justice is essential to the integrity of our justice system. When a court departs from open ... more Open justice is essential to the integrity of our justice system. When a court departs from open justice, it is appropriate that media organisations are able to question whether the circumstances warrant the departure. This article addresses the standing of media organisations to challenge departures from open justice. In some jurisdictions, the issue is resolved by statute. However, the position is not uniform around Australia. The article explains the position under the differing statutes and at common law. It focuses on the common law position, where the standing of media organisations is controversial. It argues that at common law, media organisations may intervene as of right, as a matter of natural justice, in any proceedings contemplating a departure from open justice.
See (2016) 37(1) Adelaide Law Review 69
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The number of cases of defamation by social media is growing. This article examines the principle... more The number of cases of defamation by social media is growing. This article examines the principles of assessment of damages as they apply to those cases. In particular, the article examines the concept of the 'grapevine effect': a metaphor used to explain the basis for recovery of general damages for defamation. The grapevine effect has been deployed to notable effect in recent cases of publication by social media. The article argues that the role of the 'grapevine effect' reflects the purposes of awards of damages for defamation in light of the unique characteristics of social media.
For published version, see: Michael Douglas, '"Their evil lies in the grapevine effect": Assessment of damages in defamation by social media' (2015) 20(4) Media and Arts Law Review 367.
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In Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652, Treasurer Joe Hockey was awarded $... more In Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652, Treasurer Joe Hockey was awarded $200,000 in damages in respect of a number of defamatory Fairfax publications. The case raises important questions about the defence of qualified privilege and the impact of defamation law on freedom of political communication in Australia. This article focuses on the implications for the developing jurisprudence of defamation by social media, and Twitter in particular.
Published in: (2015) 18(6) Internet Law Bulletin 118
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[First published in Alternative Law Journal 40(2) 2015]
The Internet has an almost unlimited cap... more [First published in Alternative Law Journal 40(2) 2015]
The Internet has an almost unlimited capacity to remember, which has been described as the problem of ‘digital eternity’. Digital eternity presents a challenge for the protection of the right to privacy. This article questions Europe’s controversial response to that challenge in the so-called ‘right to be forgotten’. Since May 2014, search engine providers like Google have been required to remove thousands of links to personal data upon request. The article identifies the practical and ethical difficulties that come with observance of the right to be forgotten.
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Published at (2014) 22 Torts Law Journal 160
In Marsh v Baxter the WA Supreme Court resolved a... more Published at (2014) 22 Torts Law Journal 160
In Marsh v Baxter the WA Supreme Court resolved a dispute between organic farmers, the Marshes, and their genetically-modified-crop-growing neighbour, Mr Baxter. Causes of action in negligence and nuisance each failed. The court denied that Baxter owed the Marshes a duty to prevent swathes of GM material entering their property, and denied that Baxter
unreasonably interfered with the use of their property. In terms of principle, the case is notable for a narrow view of recoverability of pure economic loss and for application of principles of nuisance to the battleground of GM farmers and their anti-GM neighbours. The judgment could be seen as a
step towards resolving the tension between those who adopt GM technology and those who eschew it, but not an entirely satisfying one.
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Note published at (2013) 21 Tort L Rev 117
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Drafts by Michael Douglas
Forthcoming: (2017) 18 Macquarie Law Journal.
Choice of court agreements are a standard and impo... more Forthcoming: (2017) 18 Macquarie Law Journal.
Choice of court agreements are a standard and important component of modern contracts. Recent events suggest that Australian principles of private international law in respect of choice of court agreements are about to change. In November 2016, Parliament’s Joint Standing Committee on Treaties recommended accession to the Convention on Choice of Court Agreements through an ‘International Civil Law Act’. The Convention applies in international cases to exclusive choice of court agreements concluded in civil or commercial matters. It contains three basic rules, each subject to exclusions and exceptions. First, where a court is designated in an exclusive choice of court agreement, that court is essentially obliged to exercise jurisdiction. Second, if a court is faced with an exclusive choice of court agreement in favour of another court, the court is obliged to decline to exercise its jurisdiction. Third, judgments made in proceedings giving effect to exclusive choice of court agreements must be recognised and enforced. This note briefly considers whether Australia will accede to the Convention and how accession could impact how Australian courts address exclusive choice of court agreements.
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Papers by Michael Douglas
See (2016) 37(1) Adelaide Law Review 69
For published version, see: Michael Douglas, '"Their evil lies in the grapevine effect": Assessment of damages in defamation by social media' (2015) 20(4) Media and Arts Law Review 367.
Published in: (2015) 18(6) Internet Law Bulletin 118
The Internet has an almost unlimited capacity to remember, which has been described as the problem of ‘digital eternity’. Digital eternity presents a challenge for the protection of the right to privacy. This article questions Europe’s controversial response to that challenge in the so-called ‘right to be forgotten’. Since May 2014, search engine providers like Google have been required to remove thousands of links to personal data upon request. The article identifies the practical and ethical difficulties that come with observance of the right to be forgotten.
In Marsh v Baxter the WA Supreme Court resolved a dispute between organic farmers, the Marshes, and their genetically-modified-crop-growing neighbour, Mr Baxter. Causes of action in negligence and nuisance each failed. The court denied that Baxter owed the Marshes a duty to prevent swathes of GM material entering their property, and denied that Baxter
unreasonably interfered with the use of their property. In terms of principle, the case is notable for a narrow view of recoverability of pure economic loss and for application of principles of nuisance to the battleground of GM farmers and their anti-GM neighbours. The judgment could be seen as a
step towards resolving the tension between those who adopt GM technology and those who eschew it, but not an entirely satisfying one.
Drafts by Michael Douglas
Choice of court agreements are a standard and important component of modern contracts. Recent events suggest that Australian principles of private international law in respect of choice of court agreements are about to change. In November 2016, Parliament’s Joint Standing Committee on Treaties recommended accession to the Convention on Choice of Court Agreements through an ‘International Civil Law Act’. The Convention applies in international cases to exclusive choice of court agreements concluded in civil or commercial matters. It contains three basic rules, each subject to exclusions and exceptions. First, where a court is designated in an exclusive choice of court agreement, that court is essentially obliged to exercise jurisdiction. Second, if a court is faced with an exclusive choice of court agreement in favour of another court, the court is obliged to decline to exercise its jurisdiction. Third, judgments made in proceedings giving effect to exclusive choice of court agreements must be recognised and enforced. This note briefly considers whether Australia will accede to the Convention and how accession could impact how Australian courts address exclusive choice of court agreements.
See (2016) 37(1) Adelaide Law Review 69
For published version, see: Michael Douglas, '"Their evil lies in the grapevine effect": Assessment of damages in defamation by social media' (2015) 20(4) Media and Arts Law Review 367.
Published in: (2015) 18(6) Internet Law Bulletin 118
The Internet has an almost unlimited capacity to remember, which has been described as the problem of ‘digital eternity’. Digital eternity presents a challenge for the protection of the right to privacy. This article questions Europe’s controversial response to that challenge in the so-called ‘right to be forgotten’. Since May 2014, search engine providers like Google have been required to remove thousands of links to personal data upon request. The article identifies the practical and ethical difficulties that come with observance of the right to be forgotten.
In Marsh v Baxter the WA Supreme Court resolved a dispute between organic farmers, the Marshes, and their genetically-modified-crop-growing neighbour, Mr Baxter. Causes of action in negligence and nuisance each failed. The court denied that Baxter owed the Marshes a duty to prevent swathes of GM material entering their property, and denied that Baxter
unreasonably interfered with the use of their property. In terms of principle, the case is notable for a narrow view of recoverability of pure economic loss and for application of principles of nuisance to the battleground of GM farmers and their anti-GM neighbours. The judgment could be seen as a
step towards resolving the tension between those who adopt GM technology and those who eschew it, but not an entirely satisfying one.
Choice of court agreements are a standard and important component of modern contracts. Recent events suggest that Australian principles of private international law in respect of choice of court agreements are about to change. In November 2016, Parliament’s Joint Standing Committee on Treaties recommended accession to the Convention on Choice of Court Agreements through an ‘International Civil Law Act’. The Convention applies in international cases to exclusive choice of court agreements concluded in civil or commercial matters. It contains three basic rules, each subject to exclusions and exceptions. First, where a court is designated in an exclusive choice of court agreement, that court is essentially obliged to exercise jurisdiction. Second, if a court is faced with an exclusive choice of court agreement in favour of another court, the court is obliged to decline to exercise its jurisdiction. Third, judgments made in proceedings giving effect to exclusive choice of court agreements must be recognised and enforced. This note briefly considers whether Australia will accede to the Convention and how accession could impact how Australian courts address exclusive choice of court agreements.