The publishers and author of the book Tom Cruise: An Unauthorised Biography could be sued under Australian defamation laws if anyone in Australia read it online in the form of an e-book.
The book went on sale in the US this week, accompanied by a media tempest over alleged defamatory remarks made by the book's author, Andrew Morton, against Cruise, his family and the Church of Scientology.
Two of Australia's largest book stores, Dymocks and Angus & Robertson, will not sell the book in Australia because of the legal risks it carries with it.
Peter Bartlett, a partner at law firm Minter Ellison, wrote for the news Web site Crikey.com.au that if anyone even read it online in the form of an e-book it would, for defamation purposes, be technically considered to have been published in Australia, and the US publishers and author could be sued here.
He told Crikey it was an example of the significant differences in US libel law compared to Australia, where the onus is on the publisher to prove that the material published is true or that another defence is available to it.
"The High Court of Australia decided in the Gutnick case that if you access and read something online in, say Victoria, then that material has been published in Victoria for defamation purposes. Thus the plaintiff could sue in Victoria and the Victorian Court would have jurisdiction to hear the case," Bartlett told Computerworld.
"For each publication there is a $250,000 cap on damages. The courts have not as yet been asked to decide whether there are separate publications each time someone accesses and reads the material. There is also scope for aggravated damages in certain circumstances."
He said that Australians could buy the book on Web sites like Amazon, but the fact that the publisher and author could then be sued if the book is read in Australia usually results in publishers asking Amazon not to sell the book to Australian customers.
"There is some protection for ISPs in Australia, but if they are on notice that the material is defamatory, that protection is unlikely to assist them. The same goes for book stores. If they are put on notice that a book contains defamatory material and they continue to sell that book, they are exposed to action," he said.
Bartlett explained that it was not uncommon for books distributed in the US to be withheld from distribution in Australia due to the added risk of legal exposure here.
"Australia does not have a system in place that protects freedom of speech to the same degree as that existing in the US. In Australia we have put more emphasis on the protection of reputation. Some say we have gone to far. Some say the US has gone too far in protecting free speech."
Among other things, the book alleges that Cruise is the unofficial second in command of the Church of Scientology, and that it played a key role in the breakup of Cruise's marriage to Nicole Kidman and threatened to blackmail her if she spoke out against the notorious religion.