The Australian High Court just made a ruling allowing overseas internet publishers to be sued in Australia.
This is obviously unfortunate from my POV. E.g., it means I could be sued in Australia for something I posted on this message board. :eek: This decision raises many questions, such as:
– Will it be reversed on appeal?
– Is it a legally correct decision?
– Will similar decisions be made by other countries?
– What impact will it have on internet usage?
– What should be done about this ruling? E.g., an international agreement choosing a single venue for lawsuits?
I recall an early porn star (Harry Reems?) being convicted of a crime in a state where his movie was shown, although he had never set foot in that state. It always seemed unfair.
Since the World Wide Web is, well, world wide, this ruling means that anyone posting on the Web can be sued in Australia. If other countries make similar rulings, then the same would go for those countries as well. This seems unfair and counter-productive.
I would like to see an agreement restricting suits to the country where the stuff was posted, but I am pessimistic.
december:I would like to see an agreement restricting suits to the country where the stuff was posted, but I am pessimistic.
As your linked article points out, “the High Court said [defendant] Dow Jones wanted to overturn a 153-year-old legal principle that a defamation occurred where the material was read, heard or observed and the subject had a reputation to protect – not where the material was produced.” They sound unlikely to abandon that principle.
The justices are apparently aware of the drawbacks, though: “justices Ian Callinan and Kirby acknowledged that the borderless nature of the internet meant a plaintiff could ‘forum shop’ and sue in a number of countries where they had a reputation.”
International treaties are probably the only way to deal with these issues in the long run.
I have no idea if it will be reversed on appeal. As an American, I have very little experience with the Australian legal system, and that also makes me a bit leery to post judgements about them.
Legally correct? The ruling raises freedom of speech issues all over the world, and that’s a heavy responsibility for any court to decide. When this case gets to the Victorian Court (as Dow Jones says it will), it will no doubt be considered very carefully. The decision is already getting worldwide scrutiny, as exemplified by your OP. (But will Australia feel compelled to prosecute any of us for our Internet postings? I doubt it. Unless you’re making comments about how you plan to kill the Australian Prime Minister, I think you’re safe. ;))
Other countries? I think that almost certainly sometime in the near future, governments the world over will have to consider legislation regarding the Internet - as the link you cited states:
I also think one of the litigants believes he has done some good for internet-hooked humanity:
Internet usage? Perhaps people will be made more responsible for their Internet behavior, given the possibility of Australian wrath!
If anything, I hope that this ruling facilitates the creation of some kind of international legal body for the open discussion of global issues. However, isn’t that what the UN is for? If this ruling really does end up ruffling feathers, I foresee debate among the UN representatives.
I can’t help but feel that future historians will look back on the turn of the century internet as we know it today and compare it to the “wild west.” Thing is, I kind of like it better the way it is.
Without going into the substance or merits of the OP, I just want to say that as soon as I read the thread title I know who had posted it. Indeed I was right. Somehow I do not feel particularly threatened by the Australian authorities. In any case, if they want to get me, they’d have to pay my ticket to Aussieland which might be worth the while.
I seem to recall another internet scare story a couple of years ago regarding French law. IIRC, in France individuals own their images in photographs. People then raised the possibility of cases like this:
Lets say I take a photograph of another Australian, on Australian soil. I upload the photo to the internet. The person in the photograph then sues me in France because I have made the image available online in that country, and have breached their (French) copyright.
I don’t think that one was ever taken seriously either.
Here is the full text of the decision.
Just from a glance at the text :
[ul]
[li]It is a decision of the full court of the High Court of Australia (“HCA”) - the equivalent to the US Supreme Court.[/li][li]The decision means that Mr Gutnick can go back to the Victorian Supreme Court (“VSC”) to pursue his defamation action.[/li][li]Dow Jones’s basic argument was that the articles in question were published in New Jersey, where the servers were located. Gleeson CJ at 20:[/li]
[li]Dow Jones was seeking the VSC proceedings be set aside, as it was not the correct jurisdiction.[/li]
[li]Mr Gutnick made an undertaking not to sue in any other jurisdiction other than Victoria, his home state. He is only claiming for damages that occurred to his reputation in Victoria, and not in any other jurisdiction.[/li][/ul]
I don’t have to much problem with this decision. “Diamond” Joe Gutnick is a pretty well known person in Australia, particularly in Victoria, where he was formerly president of the Melbourne Football Club.
While Dow Jones likened the placement of the material on the internet to the placement of books on a library bookshelf, it was correctly determined that they were publishing the material in a variety of jurisdictions - all those jurisdictions where the material can be read.
What may be more interesting is whether a plaintiff eventually seeks a defamation action in a wide variety of jurisdictions. Callinan J :
Bubba.
PS. I note that Geoffrey Robertson QC appeared for Dow Jones. He is one of my favourite Barristers - he has done some awesome human rights work in his time. I highly recommend The Justice Game
I haven’t had a chance to read this judgment yet, and I will comment more when I have, perhaps. But to answer the first of your questions, it will not be overturned on appeal. The Australian High Court is the equivalent of the Supreme Court of the US. There ain’t no appeal body beyond it.
France ruled that Yahoo must adhere to some of the French laws even though the site was in English hosted in the US. I remember this getting a lot of press then.
It will not be reversed on appeal. The High Court is the highest court in the land. This was, I believe the third appeal in this case (all prior judgements going the same way).
Yes. As the decision upheld the current and longstanding interpretation of defamation law in Australia. The court also accepted submissions from other parties including AOL Time Warner, Amazon.com and others. It was not a decision made in haste.
I don’t know. I would imagine that other common law countries would have similar laws to Australia, and therefore similar interpretations of said laws.
I doubt it. The only possible impact may be that people take more care when publishing certain information.
What to do is a complex question. I agree that some measures need to be taken to avoid jurisdiction shopping, but I also think that there needs to be protection for individuals or corporations against being defamed. That the vehicle for the defamation was the internet is irrelevant.
One of the key things that I found (not having read all the judgement in detail and not being a lawyer) was that it was found that Joe Gutnick lives in Victoria, is based in Victoria and has a reputation in Victoria. Therefore given that the material was obtained and read in Victoria, it may have damaged his reputation.
One of the major arguments put forward by Dow Jones was about jurisdiction shopping, and it would be impossible to apply every possible law in every jurisdiction with internet access around the world to something published. In the ruling, it was said that jurisdiction would be limited to those where the litigant had a reputation, and that should be obvious from the person you publish information about. If someone published something defamatory about me on the internet, then the only jurisdiction I could sue them in would be Victoria, Australia, because that’s the only place where I have a reputation. If I had a reputation in Germany but not Australia, then I couldn’t sue in Australia under Australian law, I would have to sue from Germany under German law.
I don’t think it’s a blow for liberty on the internet, but it is saying that just because you publish it on the web, doesn’t mean it’s above the law, and you can’t just go to some other country with more liberal laws to avoid responsibility for what you publish.
My post was poorly edited. I blame society, specifically the insidious influence of the Australian courts. Perhaps I should sue.
What I meant by Yahoo caving is that they basically said they would comply with the French order and not publish Nazi material. One of the articles said that they are not doing a good job of keeping the offending material from the French.
Dow Jones did not just go to another country. They stayed in the country that they are from.
I think that it is a huge blow for liberty on the internet. Basically it is saying that anything you put on the Web must adhere to the laws of every country that is on the web. I am not sure if that is even possible given large disparity in laws from country to country.
True. But they published with full knowledge that the information would be accessed in other countries.
I have been reading through the judgement at the link posted by foxyboxer. Probably one of the most key things I have read is this:
It’s saying that under Australian law, defamation is about the damage caused by certain information rather than publishing it. If it’s published and never viewed - it wouldn’t be defamatory in Australia. Further to that, the place where the defamation is said to occur is the place where the dammage occurs. It naturally follows that:
You must have a reputation that can be damaged
The defamatory information must be consumed in the place where you have the reputation (a defamor can’t act alone - a third party must consume the information for it to become defamatory)
The information must cause damage to your reputation
Acording to the judgement:
He’s confining his tort to what happened in Victoria only. He’s not suing for any damage to his reputation in the US, or even in any other Australian states, but only for that damage done in Victoria. The judgement goes on to say that it would be a more difficult proposition if he had brought the action for defamation in multiple jurisdictions, even if those were multiple states of Australia, let alone multiple countries. The judgement has also said that it’s not opening everything up to every possible jurisdiction:
It’s not a blow for liberty. The law has been upheld as it has always applied in Victoria. The Internet has thrown up some interesting challenges and difficulties for the law, and these are acknowleged in the judgement, but it seems to me that the initial tort brought my Mr Gutnick was narrowly enough construed that it fell well within the existing law.
Well Gazpacho that is not quite correct. As Robinc308 says, this decision does not mean you have to adhere to the laws of every country. It just means that if a country adopts this decision, you will have to avoid defaming people who have a reputation in that country.
In other words, if I was to make negative comments about Joe UScitizen on the internet which would not actionable under US defamation law, but which would be actionable under Australia’s tighter defamation law, he would not be able to access the Australian courts unless he has a reputation in Australia which was damaged in Australia.
TLD I think that this impact may well have more impact than the French/Nazi brouhaha. The problem that the French anti-nazi groups have had is that although they received favourable decisions from the French courts, they are having great difficulty enforcing those decisions.
I expect that if Gutnick’s case is successful (and of course the substantive issue of whether he has been defamed is yet to be decided) he will be able to enforce any monetary judgment against Dow Jones. It is a large company with (I should think) a wide spread of assets, and Gutnick will be able to find at least one country with both Dow Jones assets against which to find leverage, and a court system that is willing to enforce an Australian judgment.
In other words, I suspect that this decision will impact on substantial companies whose assets are vulnerable to attack who publish on the internet and defame Australians.
Well that basically means you cannot publish material that could be libelous in any country on the internet. Which I find a huge blow to internet publishing.
Does anybody know if this material would be considered libelous in the states? I have heard that England and the US have different laws on the subject. Articles in English tabloids have been considered libelous that if published in the States would not be considered libelous.
Gazpacho you continue to overstate the case. The decision (if it is widely adopted) will mean that when you comment upon someone, you have to consider whether what you say would be defamatory of them in the places they have a reputation. Given that you know who you are commenting on and where they live and so on, the considerations you will have to make to avoid defamation are not utterly open ended.
Let’s say you place an article on your website that makes a number of claims about John Doe of Bumblefuck, Idaho. Now, assume that these claims are protected under US/Idaho laws of free speech, and are not actionable there.
There isn’t really any way that John Doe can start an action against you using the tighter laws in an Australian jurisdiction unless he has a valid claim that his reputation in that jurisdiction was damaged. If we further presume that :
[ul]
[li]John Doe spends some time in Brisbane[/li][li]he has a solid reputation in Brisbane[/li][li]the article was read by people in Brisbane[/li][li]the article potentially damaged his reputation in Brisbane[/li][/ul]
then John may have grounds for a claim against you. Whether there is any way that he can actually follow through on his claim with you in the US is another matter.
People who are making claims on the internet, just as with any other media, should consider their ‘victim’s’ reputation, and which places their victim’s have a reputation that could be damaged by the claims.
There are countries that have laws against publishing things that are critical of the government. News organizations that publish articles critical of those governments could be punished if these sorts of judgements get to be widely enforceable. I really don’t see how anyone can look at this case and not think that publishing news on the web is now greatly complicated.
From foxyboxer’s quote of the judgement.
People are getting more and more of their news on the Internet. To say that a news organization has other outlets to publish things so they should not publish what in their own country is perfectly acceptable is to my mind just ridiculous.