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Aussie Net Ruling Has Broad Implications
By ANICK JESDANUN, AP Internet Writer
A landmark decision Tuesday by Australia's highest court extends the reach of that nation's libel laws well beyond its borders, creating a global precedent that could subject Internet publishers to lawsuits regardless of their geographical location.
The decision, involving an article posted in New Jersey by a Dow Jones & Co. magazine, could subject U.S.-based Web sites to stricter libel laws than those that apply domestically, where rulings are generally more favorable to publishers.
"This is the first time that a Supreme Court anywhere in the world ... really tries to look at how jurisdictional law maps onto the Internet," said Michael Geist, a University of Ottawa law professor who tracks Internet cases around the globe.
He expects several other countries — particularly Commonwealth nations including Canada and the United Kingdom — to apply the Australian ruling. But Geist and other legal experts doubted the decision would have a major impact on what news organizations will be willing to publish online.
"Their words are their product and if they export it internationally they know how to work the cost of litigation into the sale of their product," said Jonathan Zittrain, an Internet specialist at Harvard Law School.
Jerome Barron, a First Amendment professor at the George Washington University Law School, said news organizations have historically continued to publish outside their home countries even after being sued in other nations where their publications circulate.
But Lee Tien, an attorney with the Electronic Frontier Foundation who focuses on online speech, worries the ruling could silence smaller Internet publishers, including individuals who post on message boards and can't necessarily afford legal representation.
In Tuesday's ruling, the High Court of Australia unanimously dismissed an appeal by Dow Jones aimed at halting a defamation suit by mining magnate Joseph Gutnick.
Gutnick claimed a 7,000-word article that had appeared in Barron's in October 2000 portrayed him as a schemer given to stock scams, money laundering and fraud. The magazine article was also published online.
The decision means Gutnick can sue New York-based Dow Jones in his home state of Victoria, in Australia. The high court did address the merits of the libel case.
A coalition of 18 news and Internet organizations, including The Associated Press, The New York Times Co. and Amazon.com, joined Dow Jones in arguing that jurisdiction should be based on where a defendant last exercises control.
Lawyers for Dow Jones, which publishes The Wall Street Journal, Barron's, Dow Jones Newswires and several stock market indicators, said the case should be heard in the United States, where the article was first published and its Web servers are located.
Gutnick said the case should be heard in his hometown, Melbourne, since people in Victoria could see the article on the Internet and he was thus defamed where he is best known.
"It will certainly be re-established that the Net is no different than the regular newspaper," he told Australia's Channel Nine television. "You have to be careful what you write."
Dow Jones said in a statement that it was disappointed and now must defend itself "in a jurisdiction which is far removed from the country in which the article was prepared and where the vast bulk of Barron's readership resides."
Brigitte Trafford, a Dow Jones spokeswoman, said the ruling won't change the magazine's Internet offerings or the types of stories it pursues: "We have no intention of changing our high editorial standards."
David Tomlin, assistant to the president at The Associated Press, said the ruling "underlines the need for a thorough review of agreements and treaties or perhaps the construction of new ones that would govern tort law on the Internet."
The seven-judge court did impose some limits on defamation actions.
In its ruling, the court dismissed Dow Jones' concerns that many defamation actions could be brought as a result of one publication. It said that after any successful defamation action, subsequent legal action could be viewed as "vexatious" and therefore unlikely to succeed.
The court dismissed Dow Jones' contention that it would have to consider the defamation laws from "Afghanistan (news - web sites) to Zimbabwe" in every article published on the Internet.
"In all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort," the court said.
But the court acknowledged that the results it crafted "are still less than wholly satisfactory. They appear to warrant national legislative attention and to require international discussion in a forum as global as the Internet itself."
Zittrain said technology may ultimately be required to avoid lawsuits elsewhere. Developers are now refining software that could let sites identify where visitors come from and block them if they come from jurisdictions deemed hostile.
But he said the Internet will be disappointing when "many speakers will start limiting the reach of what they say to their own turf to avoid lawsuits."
AP writer Peter O'Connor in Sydney contributed to this report.
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Australia's highest court allows businessman to sue over article posted on Internet
Tue Dec 10, 2:41 PM ET
By PETER O'CONNOR, Associated Press Writer
SYDNEY, Australia - In a landmark case, Australia's highest court on Tuesday gave a businessman the right to sue for defamation in Australia over an article published in the United States and posted on the Internet.
Analysts suggest the ruling against publishing company Dow Jones & Co. — the first by a nation's top court to deal with cross-border Internet defamation — could set a precedent and affect publishers and Web sites that post articles in the 190 nations that allow defamation cases.
"This is the first time that a supreme court anywhere in the world (rules) not just in libel but really tries to look at how jurisdictional law maps onto the Internet," said Michael Geist, a University of Ottawa law professor who tracks Internet cases around the world.
The High Court of Australia unanimously dismissed an appeal by Dow Jones & Co. aimed at stopping a defamation suit in Australia by mining magnate Joseph Gutnick.
Gutnick claimed that a 7,000-word article that had appeared in Barron's in October 2000 portrayed him as a schemer given to stock scams, money laundering and fraud. The article was also published online.
The decision means Gutnick can sue New York-based Dow Jones & Co. in his home state of Victoria, in Australia.
Dow Jones & Co., which publishes The Wall Street Journal, Barron's, Dow Jones Newswires and several stock market indicators, said it was disappointed with the ruling and promised to continue its defense.
"The result means that Dow Jones will defend those proceedings in a jurisdiction which is far removed from the country in which the article was prepared and where the vast bulk of Barron's readership resides," it said in a statement.
Several media and Internet organizations, including The Associated Press, Amazon.com and AOL Time Warner, filed legal briefs in support of Dow Jones.
Some media law experts doubted the ruling would have a major impact on what news organizations will be willing to publish online.
Jerome Barron, a First Amendment specialist at George Washington University Law School, said news organizations have historically published around the world even after being sued in other countries where their publications circulate.
"It will just be the cost of doing business," he said. "There's libel insurance for that."
Lawyers for Dow Jones argued that the case should be heard in the United States because the article was first published in New Jersey and intended for a U.S. audience.
Gutnick said the case should be heard in his hometown, Melbourne, since people in Victoria could see the article on the Internet and he was thus defamed where he is best known.
"It will certainly be re-established that the Net is no different than the regular newspaper," he told Australia's Channel Nine television. "You have to be careful what you write and if you offend somebody or write malicious statements about people like what was done in my case you can be subject to being prosecuted."
The judgment means material published on the Internet is deemed to have been published in the place it is viewed online, not just the country of origin.
"I think it will be accorded great respect by courts around the world, particularly those which have an English common law heritage like Britain, Canada, New Zealand," said Dr. Matthew Collins, a Melbourne lawyer and academic who has published a book on defamation and the Internet.
However, the seven-judge court imposed some limits on defamation actions.
In its ruling, the court dismissed Dow Jones' concerns that any defamation actions could be brought as a result of one publication. It said after any successful defamation action, subsequent legal action could be viewed as "vexatious" and therefore unlikely to succeed.
The court dismissed Dow Jones' contention that it would have to consider the defamation laws from "Afghanistan (news - web sites) to Zimbabwe" in every article published on the Internet.
"In all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort," the court said.
Tuesday's ruling in Australia's highest court of appeal made no decision on the defamation case itself. Gutnick will have to pursue his case in the Victorian Supreme Court.
KJC |
