Oz High Court Whacks Dow Jones

[Don K Dyck]

In a memorable judgement last week the Oz High Court found (7/0) in favour of businessman Mr Joseph Gutnick that the alleged defamation he suffered by the publication of a report in Barrons on the Internet and in hard copy in 2000 could be determined in the Victorian (State) Supreme Court (Oz).

This judgement has ramifications for all Internet websites because it could leave the site providers open to claims of defamation if it can be shown that the site providers did nothing to prevent or eliminate defamatory statements made by one poster against another. To put is simply, the courtroom may be intruding into siites like Lit.

As one poster on this site who has traded comments without fear or favour, I accept that a certain amount of "robust discussion" occurs . . . if you can't stand the heat, don't come into the kitchen . . . but this HCA decision will have international effects because an offended party only has to prove that publication occurred in their Oz jurisdiction and claim they realised that they were defamed, and suddenly, the lawyers could be making a lot of money . . .

I hope some of the lawyers on Lit have the opportunity to look at this link, because the implications may be enormous. I would appreciate any comments that people would like to make after perusing the "light legal reading" of the judgement below. Thanks.

DOW JONES & COMPANY INC V GUTNICK [2002] HCA 56 (10 December 2002)

 

[Coolville]

Read that.
Interesting decision. Right up there with the French court's decision against Yahoo.

The Internet is truly global and the laws should reflect that.

Tricky to legislate, but this ruling is a step in the right direction.

 

[Byron In Exile]

In a memorable judgement last week the Oz High Court found (7/0) in favour of businessman Mr Joseph Gutnick that the alleged defamation he suffered by the publication of a report in Barrons on the Internet and in hard copy in 2000 could be determined in the Victorian (State) Supreme Court (Oz).

This judgement has ramifications for all Internet websites because it could leave the site providers open to claims of defamation if it can be shown that the site providers did nothing to prevent or eliminate defamatory statements made by one poster against another. To put is simply, the courtroom may be intruding into siites like Lit.

The implication of Australian libel laws having jurisdiction over something on a web site in New Jersey is that anything published on the web is liable in every country with an Internet connection. This is possibly the dumbest thing of the month.

The remedy for the company being sued is simple: ban Australian access to their servers. From this excerpt from the judgement, that's apparently what the court thinks an acceptable remedy if it were possible:

The appellant contends that the Internet is not "pushed" into any particular jurisdiction. The contention ignores the commercial and social realities that greater publication produces both greater profit and broader persuasion. Indeed, the appellant's arguments would suggest that all of its objectives were exclusively high-minded. Revenues from increased advertising and circulation, and the word "profit" never passed the appellant's advocate's lips. It may well be that "firewalls" to deny access to the unintended or non-subscribing reader are at present perhaps imperfect. So be it. Publishers are not obliged to publish on the Internet. If the potential reach is uncontrollable then the greater the need to exercise care in publication.

Australian defamation law, and, for that matter, English defamation law also, and the policy underlying them are different from those of the United States. There is no doubt that the latter leans heavily, some might say far too heavily, in favour of defendants. Nor has the metaphor for free speech developed by Holmes J in a series of cases and beginning with his dissenting judgment in Abrams v United States, a marketplace of ideas, escaped criticism in the United States. Writing in The New Criterion, Robert H. Bork pointed out:

"The market for ideas has few of the self-correcting features of the market for goods and services."

Later he added:

"In a word, what the Constitution says, as interpreted by today's Court, is that one idea is as good as another so far as the law is concerned; only the omnipotent individual may judge." (original emphasis)

If something on a web site in New Jersey is liable under Australian law, isn't it also liable under Ugandan law, North Korean law, Chinese law, etc.? Sounds like the Internet might have to be broken up into national segments.

 

[REDWAVE]

Very bad decision

I think it's a very bad decision. Libel law is notoriously a tool of the rich and big corporations, who use it to silence and intimidate their critics. The defendants weren't arguing that they couldn't be sued, just that they couldn't be sued in Australia, but had to be sued in the U.S. This gives libel plaintiffs a big advantage, by being able to sue people in a faraway land with an unfamiliar and perhaps hostile legal system.

Having said that, this case brings up horrible memories of the Conflict of Laws course I took in law school. I still have nightmares! How fondly I remember the famous lex loci delicti. And if you lick the lex locus delicti in the wrong places, you'll renvoi with your depecage, and wind up in a state of comparative impairment.

That's a joke only lawyers would get, and probably only a few of them.

 

[Don K Dyck]

Thanks for our comments

Thanks for dropping y and taking the time to peruse the judgement, Coolville, Byron and Redwave.

The international implications that you have recognised, especially your very clear statement, Byron, definitely does break up the Internet into national jurisdictions . . . and the dreaded lex loci delicti . . . enough said.

But the law is a snail compared to the Internet hare . . .

Thank you for your opinions.

Don

 

[roxanne69]

ppppsssssssssst...Don, do you ever empty your PM box????

 

[Guest]

 

[teddybear4play]

ppppsssssssssst...Don, do you ever empty your PM box????

My PM box is free.

TB4p

 

[Byron In Exile]

What an interesting thread, Don.

May I try a hypothetical?

Let's assume that Australian access to a particular site in the United States has been banned (as I think Byron was suggesting).

I'll then pose this question: If defamatory info regarding businessman Mr. X of Australia is posted on the website and visible to viewers in the States, how does this resolve the defamation? Won't people who still have access to the website alter their opinion of Mr. X, and hence his ability to do business in the States?

Yes, but he could then only sue in the US, since the web pages were not viewable in Australia, and US law, with its emphasis on protecting free speech, favors the defendant more in a libel suit than does Australian law.

Australia is saying that the defamation occurs at the point at which the information becomes intelligible to the viewer, not where the information is stored.

 

[Guest]

 

[Byron In Exile]

You're so interesting, Byron, I'm going to start following you around if you're not careful.

Following is fine , but be advised I can make sudden stops.

I believe I get your point, but I still find this confusing. Mr. X would still have a legitimate case, would he not? Even if the odds of winning it were not in his favor. If that means that the defamation really isn't resolved (only unlikely to succeed in court), then how are the hypotheticals regarding websites which Don posits not a real danger?

I'm not sure I completely understand the last part of that, but perhaps I didn't explain well enough before.

The company being sued in Australia claimed that the defamation of which they were accused was outside the jurisdiction of Australian courts since the information was published in the United States (Uploaded to servers in New Jersey.)

The Australian High Court ruled that in their opinion, they had jurisdiction, because the defamation occurred not when the material was put on the server, but at the location(s) at which it became intelligible to human beings in Victoria.

This opens up a can of worms, since it would imply that to publish anything on the Internet, the company would have to consider the standards of defamation that might apply in every country that has access to the Internet. What are the standards of defamation in Beijing, for example?

Had the Australian court agreed that it had no jurisdiction in the case, the appellant would have had to bring his suit in US courts, which have a more strict view of what constitutes defamation. He could still bring his case there, but his chances of prevailing might be so much slimmer it wouldn't be worth the attempt.

 

[Coolville]

Re: Re: Oz High Court Whacks Dow Jones

The remedy for the company being sued is simple: ban Australian access to their servers.

Unfortunately, this doesn't seem to be possible at present. The French court ruling against Yahoo! brought up this question.

Yahoo was selling Nazi items on it's French auction site. Selling or displaying items that promote racism is illegal in France. They withdrew the items on yahoo.fr but, as the court ruled, french users could easily access the yahoo.com.

Yahoo had to pay fines until they blocked access from French users to their .com site. All the experts came out of the woodwork and the concensus was that it was an impossible task.

Then an American court ruled in favour of Yahoo, overturning the French decision. At the end of the day, Yahoo placed warnings on its nazi department on its .com site to French users, saying they risk breaking French law by entering. And that weird case was closed.

All in all it is one big grey zone. The beauty of the internet is it's globality but it's a shame when toes get stepped on. Breaking it up into national regions would be a shame.

The technology will no doubt be developed, it's just not available at the moment.

 

[Don K Dyck]

Well done Byron!!

Hi Lioness, Byron and Coolville, thanks for dropping by and sharing your opinion.

Lioness, I think Byron has clearly and succinctly identified the major points of the case in his two posts. In an Oz jurisdiction the plaintiff has a better chance of winning than in say, the US jurisdiction. Hence part of the reason that Mr Gutnick brought the case in Victoria rather than NY.

Byron's key quote is -

"This opens up a can of worms, since it would imply that to publish anything on the Internet, the company would have to consider the standards of defamation that might apply in every country that has access to the Internet. What are the standards of defamation in Beijing, for example?"


The HCA decisoin in favour of the plaintiff is not unexpected (terrible double negative legalese) because the present bench is intent on defining an Oz common law without too much regard for what happens in other jurisdictions, especially the English jurisdiction.


Unfortunately, Coolville, U$ corporations are currently developing the technology in the PR China. I agree that such division of the world Internet into regional subsets would be unfortunate . . . but the politicians like Dubyah Shrub and his puppetmasters would really love it because they would then have the same power as the Nazis in Germany 1933-1945 when the German people were subjected to party propaganda only, and outside opinions were excluded. Think of all the wars Shrub and his puppetmasters could ferment as they rushed to take control of the world's resources, regardless of current ownership by other nations.

Coolville, would you have a reference for that Yahoo case?

Thanks for sharing your opinions,

Don

 

[Coolville]

Re: Well done Byron!!

Coolville, would you have a reference for that Yahoo case?

hey don
most of it was off the top of my head but I doublechecked a few things by googling under - 'yahoo ruling in french court'.
lot's of links came up.
cheers.

 

[Don K Dyck]

Definite Incentive . . .

ppppsssssssssst...Don, do you ever empty your PM box????

With an av like that . . . of course I have emptied my PM box . . .

 

[Don K Dyck]

Reply from Murdoch Press Journalist

The following link is from The Australian newspaper, Media Supplement 19 December 2002, p2 by Mark Day, a senior journalist.


GUTNICK DECISION TANGLES THE WEB


The most important points appear to be

1. the reasonable refusal of the US Supreme Court NOT to enforce decisions made in other jurisdictions which would be contrary to US law;

2. his comment that the free speech in the US is "a trifling luxury not enjoyed in this neck of the woods" (heavy sarcasm here, see above in the article);

3. The recent US cases involving The hartford Courant and the New Haven Advocate which found in favour of the newspapers;

4. the need for legislative reform in this area.