>From a news bulletin this morning I understand that Hedigan J, has just
handed down his decision that the Victorian Supreme Court has jurisdiction
to hear the defamation case between Mr Joseph Gutnick v. Dow Jones (see
below). Does this decision mean that an on-line publisher is potentially
liable and hence may need to defend itself in a multitude of jurisdictions
all around the world? The smallest of web-publishers may find it prohibitive
to protect and defend its rights in some foreign jurisdiction!
Background
In this hearing before the Victorian Supreme Court, Mr Joseph Gutnick, is
suing Dow Jones & Co Inc., over an article published in its weekly American
business magazine Barron's and on an Internet site hosted by the Wall Street
Journal. The article, entitled “Unholy Gains,” claims that embattled
Melbourne mining entrepreneur, religious figure and philanthropist, Mr
Gutnick had been involved in questionable financial dealings including money
laundering, share manipulation and fraud. In the article, which purports to
be a warning to US investors that Mr Gutnick has a questionable record in
financial matters, it is claimed, among other things, that he had used
religious charities to promote stocks. Mr Gutnick denies the allegations and
alleges that the article is defamatory and is suing specifically over the
Internet version of the article that he says was published in Victoria.
The hearing before Hedigan J., did not seek to establish the truth of the
article but rather, to determine in which country the trial will be held. Mr
Gutnick's lawyers argued that publication occurred when it was downloaded in
Victoria and that the defamation case should be heard in Australia. They
argued that the article's appearance on the Internet enabled it to be
accessed by people in Victoria, thereby defaming him where he is best known.
Counsel for Dow Jones, Geoffrey Robertson, QC, argued that “publication
occurs when the material is pulled from the server in New Jersey and that
any downloading of the journal which may have occurred in Victoria was the
result of independent actions for which it [the publisher] cannot be
properly held responsible" (AFR, 2001). He said the matter rested largely on
the question of whether Internet material is published in the country of
origin or the country where it is read and told the court that the action
should be heard in the United States. He argued that the matter should not
be heard in a Victorian court because the publication of the article did not
take place in Victoria but in New Jersey, where the site server for the
Internet magazine was located. He also argued that the story's source was an
American publication that dealt with American issues and was meant to be
read largely by American readers. Mr Robertson said the matter also depended
on the definition of "publication" in terms of the Internet. He said it
would have to be decided whether information on the world-wide web was
published in the country of its origin or whether it wasn't published at
all.
Adam Gatt
http://seven.bf.rmit.edu.au/~adam
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