Earlier this month, USA registered company Evony initiated proceedings against UK blogger Bruce Everiss for defamation in the Supreme Court of New South Wales, Sydney, Australia. Everiss is the author of a popular blog called Bruce on Games. Evony is an online real-time strategy game, which according to its press releases has over 8 million players worldwide. Evony claims that Everiss defamed the company by suggesting in his blog that Evony sends spam as part of its advertising, that it’s associated with fraudsters and that it had stolen intellectual property rights from other game developers.
There is no special connection between Evony or Bruce Everiss and Australia, so why litigate in Australia? Australia may have been selected because the law here is arguably more favourable to international cases – the test applied is ‘Is Australia a not inconvenient forum?’ and it is a high threshold for a defendant to show that the forum would be inconvenient. In contrast, the UK approach would be ‘the more convenient forum’ – which could be USA. If the USA was found to be the most convenient forum, the constitutional protection of free speech is usually a bar to claims such as this. This defence would not be available in Australia.
Assuming Evony establishes that Australia is “not an inconvenient forum”, it must then be proved that there was publication in Australia, it is an “excluded corporation” (meaning that it has fewer than 10 employees worldwide and isn’t related to another corporation), and finally, that Evony has been defamed. The case is next before the Court on 14 December 2009.