FIJI HUMAN RIGHTS & ANTI-DISCRIMINATION COMMISSION ANNUAL REPORT 2018 42 Apprehension stems from the obligation to remove or block content without any determination of the legality of the content by a court coupled with the failure on the part of companies and social networks to understand the complex jurisprudence on freedom of expression. The other criticism of the Act by human rights groups was that the Act provides no recourse, including the right to appeal to users whose content has been blocked or deleted unfairly. Similarly, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in his 2011 recommendation on intermediary liability recommended that: “To avoid infringing the right to freedom of expression and the right to privacy of internet users, the Special Rapporteur recommends intermediaries to: only implement restrictions to these rights after judicial intervention; be transparent to the user about measures taken, and where applicable to the wider public; provide, if possible, forwarding to users before the implementation of restrictive measures; and minimize the impact of restrictions strictly to the content involved. Finally, there must be effective remedies for affected users, including the possibility of appeal through the procedures provided by the intermediary and by a competent judicial authority”. Should intermediaries or platform providers enter the protocols of the Bill to ensure greater online safety, the Online Safety Commission must use its mandate under section 8 (b) of the Bill to “organize awareness and education programmes, including the provision of online safety material”. The Human Rights and Anti-Discrimination Commission can also assist the Online Safety Commission with this particular mandate by drawing on international best practices as articulated in the Camden Principles on Freedom of Expression and Equality and the Rabat Plan of Action. Jurisdiction The ubiquitous nature of cyber space and the blurring of territorial boundaries often raise fundamental questions about jurisdiction when it comes to the regulation of social media. Preeminent amongst which is whether it possible to institute legal proceedings and hold individuals to account if they have posted damaging materials about someone but operate in another country? In the case of Dow Jones v. Joseph Gutnick, Australia’s High Court has ruled that the financial publishers Dow Jones can be sued in the Australian state of Victoria over an article that appeared on their website in United States setting an important precedent. The primary judge held that the Australian Court had jurisdiction to try the matter. The case was appealed in the court of appeal of Victoria and to the High Court of Australia. The subject of debate before the High Court of Australia was exactly where the alleged defamatory material was published. Was it published in Victoria? Dow Jones argued that the article was published in New Jersey because the server is maintained in the United States and therefore an Australian Court could not assume jurisdiction over the matter. The High Court of Australia held that the Australian Court had the jurisdiction to try an action for defamation concerning an article, hosted at the servers of Dow Jones in the United States. The Court held that the law of defamation seeks to strike a balance between, on the one hand, the society's interest in freedom of speech and the free exchange of information and ideas and on the other hand, an individual's interest in maintaining his or her reputation in society, free from unwarranted slur or damage. The majority judgment further held that those who post information on the social media do so knowing that the information is available to all, without geographical restrictions. The Court further held that defamation is to be located at the place where the damage to the reputation occurs. It was in the place where any person downloaded the defamatory material that the damage to reputation could be done. Following this principle, the court held that an action for damages for defamation could be continued in Australia against a US web site. Conclusion The clamour for civil and political rights through freedom of expression must be balanced with the imperative to protect our constitutional right to dignity, privacy and reputation, including the right to be free from the advocacy of hatred. It is time that Fiji considers a legislation that promotes online safety. Submission to the Parliamentary Standing Committee on Foreign Affairs and Defence on Ratification of the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic,