The thread title was the headline of the cited new article.
I should perhaps say that I am entirely sympathetic to your overall position, and that I think this decision is a backward step (although I can see how the High Court arrived where it did).
But…
Those laws are not defamation laws and this decision has no relevance to those laws. You are jumping at shadows here.
They will not. In very broad terms, foreign judgments for civil damages are widely enforceable throughout the first world. Criminal law is only enforceable outside national boundaries in very narrow circumstances. But this whole argument has nothing to do with this recent decision, see point one above.
To a very limited extent (refer the restrictions on the impact of this judgment described ad nauseum in previous posts) I agree.
Your principle is too widely stated. Would you say that just because wife burning is acceptable in India, it is ridiculous that Indians in other parts of the world aren’t allowed to burn their wives?
I agree that Australian defamation laws are too restrictive. but I can’t see anything wrong in principle with Australian courts saying “we are not going to refrain from enforcing a sanction under Australian law against an activity just because that activity would be OK under US law”.
The problem is that nationalism and national differences are incompatible in some ways with the internet.
Yes, and the sentence immediately following the one that I quoted above states:
I think this is the point. If you were to print an article in a newspaper that could be defamatory in Australia, you would probably be careful about publishing that same article in Australia, presuming that you had the ability.
The internet simply gives the individual the opportunity to publish in a huge range of jurisdictions, and care should be taken if you are an organisation that is succeptible to legal attacks in those jurisdictions, as Dow Jones is. Once again, I don’t think that the individual placing rubbish on his webpage has too much to worry about.
I do think that there needs to be some legislative clarification, but in this case the High Court was following precedent.
- Bubba.
I think it should be noted too that all this case has done is allowed Joe Gutnick to proceed with defamation action against Dow Jones here in Australia. It will also I imagine (although not being a lawyer I don’t know how it all works), set a precedent for Australia. I’m 99% sure that there aren’t any other countries in the world that rely on Australian precedent. So this ruling doesn’t apply anywhere else.
Having said that, however, countries with similar laws to Australia will watch this with great interest, because if their laws are similar, then the same thing may be argued in those countries. Whether they will be successful, and the outcome will be the same, I don’t know - we’ll just have to wait and see.
There are no other countries that rely on Australian precedent. Other common law countries may take some notice (UK, NZ etc).
This is not so much a blow to the internet’s liberty, as a legal recognition at least in one country of its global nature. I think this will be the first such judgement of many made by many countries around the world.
The two undeniable facts of the internet are:
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It cannot be censored or controlled
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It does transgress national laws
So what is to be done?
In terms of 1. we have been over these arguments a billion times. Where do you censor it? ISP-level? User-level? How do you stop people getting a satellite phone and connecting to a server in North Korea or Sealand or somewhere beyond most international jurisdictions? Ultimately, you can’t. (Osama manages it with half the world trying to track him down).
In terms of 2. we are not just talking about libel laws - we are talking about copyrights, freedom of information, decency/illegal porn, court reporting restrictions, rehabilitation of offenders, etc. Information that could a trial is widespread on the internet and legal in most countries.
This may mean very little to people right now. But it means that jurors - ie members of the public - can log on to the internet during a trial, run a name search on “Barry Brown” who is accused of grievous bodily harm, and maybe find out that 15 years ago he was involved in a drunken brawl in a bar while at college. Which is not admissible as evidence at his trial, or even at sentencing, yet may prejudice a juror’s mind against him, may just tip the balance in their minds between “not guilty” and “guilty.”
So many countries will literally have to rethink huge parts of their legal systems to deal with the whole internet phenomenon. I have no clue how they are going to do this.
Even beyond legal issues, people need to recognise that they need to far better safeguard their privacy on the internet. Let’s say some student has posted extensively on the SDMB or some other bulletin or news group about their cannabis use, or their pro-legalisation stance. Let’s say that five years later, they no longer touch drugs, and they join a company with a rigidly strict no-drugs policy. Well, what if someone from that company stumbles across an employee’s past postings?
We’re all putting our history up here, our personal lives, and to be honest I think a lot of people here really don’t think of the consequences. I know most people use anonymous usernames, but loads of people also link to their homepages, or post actual pictures of themselves, or use emails that they use in “real life” as well.
Istari, two comments.
Firstly, at least in my jurisdiction, jurors are not usually allowed access to information sources that might affect their deliberations during a trial. I doubt they would be allowed an internet connection.
Secondly, I don’t hope for too much intelligent political response to the issues raised by the internet until a date (decades from now) when the internet is something that your average politician grew up with and has a real feel for.
Example. Australia’s Communications Minister gave a press conference a few years ago on new Australian anti-internet porn legislation. Prior to the legislation being passed, there were extensive submissions made by various parties (civil liberties groups, major ISP’s) which described the way the internet worked (in baby language) and why effective censorship was a near impossibility.
The legislation was nonetheless passed, despite being completely useless because almost all porn viewable in Australia is off-shore.
A journo at the press conference asked: “What is to stop people just using the internet to access porn hosted in other countries”
Answer: “Well, the international telephone call rates should discourage too much of that”
The press conference dissolved into incredulous laughter while the Minister stood there with a “what did I say?” look on his face.
We have a Communications Minister who had clearly not read any of the relevant submissions, no idea of how the internet worked, no idea why his answer was ridiculous and, at least at that time, clearly never actually used the single greatest advance in communications of the last 100 years or more.
Right. Nothing complicated about that. I am sure it is easy to get a complete grasp of the legal systems, including the precedents, of every country on earth, and to follow the laws of every country at the same time.
The problems with the responses in favor of this ruling:
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It has been mentioned often about how this ruling makes it harder to victimize people. Except… there is no victim. There is no crime. Unless you are simultaneously responsible for following the laws of every country on earth.
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What about people with world-wide reputations? Can’t they just choose the easiest country to win a suit in? In other words, it looks like it is now literally illegal to criticize the rich and world famous.
Of course I doubt it will ever come to this. In fact I was exaggerating, because this case may have been decided correctly. If Dow Jones publishes with the intention of being read in Australia, then they should be aware of Australia’s laws. Then they should have the option of either no longer intending to be read in Australia, or going through with Australian law. However, if you don’t specifically intend what you put on the internet to be read in a certain country you should not be liable if someone in that country reads it, and I think that is where the major problems people have with this ruling is. It could be leading in a very bad direction, but it is too soon to tell.
I already said that I agreed that this decision makes matters more complicated. Gazpacho nonetheless overstated the position, as you do, yet again, because yet again you seem to ignore the fact that you only have to worry about the laws of the place where this decision applies and is followed, and someone has a reputation, not the laws of every nation on earth.
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So let’s apply your reasoning. Let’s say a person lives in country Y, and an act is committed against them in both Country Y, where the act would be an actionable tort and Country X, where it would not be. You are saying that they are not a victim, even though by the laws of their own country the act is an actionable tort, because the act was also committed in Country X, where it is not.
Riiight. You wanna attempt to justify that philisophically?
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If this precedent becomes widespread, yes. Good point.
An enormous exaggeration. Firstly, this decision has not been adopted throughout the world. Secondly, no country whose judgments are likely to be practically enforceable in the first world has defamation laws that rule out all criticizm. Thirdly, who said anything about illegality? We are talking about civil actionability.
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I agree that something needs to be worked out to balance internet freedom and practicalities against individual nations’ right to have the laws that they want.
See, I don’t think this is actually possible. I think a major, major societal shift will have to occur instead, and a huge mindset shift and legislative shift for most nations.
Ultimately, I do believe that the internet and digital media will drive many record companies out of business, and drive the profits down of others - permanently, unless they are able to create alternative revenue streams.
I do believe the internet will make it easier for criminals to communicate and for people to build bombs and weapons and that we will never be able to stop this.
I do believe the internet will result in a significant personal privacy and anonymity loss for famous and non-famous individuals on this planet.
I also believe it will do a hell of a lot of good things. It will help people learn, communicate, help fight disease, reach common ground, create, empower themselves, fight loneliness and isolation, have a voice no matter how insignificant or uneducated or disempowered they may feel or seem to others.
And I believe the good will outweigh the bad. (And that even if it doesn’t, it’s still progress that can’t be halted).
But I don’t believe we can interpret, or control, or try to regulate the internet either physically or theoretically by our existing understanding or existing systems that we have. I think the internet transcends every accepted parameter today, and it will change us more than most of us are ready for.
Posted by Princhester
I still don’t understand how you can say that you do not have to worry about the laws of every country in the world. Lets say you want to publish something about the Ted Turner or Bill Gates. I think that that they have a reputation in almost all industrialized nations and many of the non industrialized nations. How would I as a small time web publisher determine if someone has a reputation in Australia? If I feel that I am following the laws of the country I live in should I be allowed to publish without fear of legal action? This ruling makes it clear that Australia feels that I should comply with their libel laws.
Gazpacho I alread agreed with nighttime that if this decision is adopted widely it will have a widespread effect upon comments about persons with worldwide reputations. You did not qualify your comments in that way. They were therefore overstated.
Is this so hard to understand? Sheesh.
Well if you are publishing in Australia, why do you feel that you do not have to comply with it’s laws?
Obviously your answer is: because I am publishing on the internet which transcends national boundaries and is a whole new paradigm. You would say that you cannot publish on the internet just to the US, and it’s not your fault if you are inadvertantly publishing elsewhere.
I agree.
All that I am saying is that it is not hard to see how the decision fits with established Australian (and for that matter US) legal principles about nations being able to control what goes on in their own countries.
There are plenty of instances of US law that impinge on foreign nationals and which the US enforces rigorously when they get the chance. Helms-Burton being the classic example.
Another good example is the way people use more generous US tort law relating to personal injuries, by finding some tenous US link, and then suing in the US instead of a country that has more obvious links with the facts of the matter, so as to obtain a more generous payout.
Yes, and by using the internet to put across your views, you are publishing in Australia, and therefore are liable under our laws. If you do not want to publish in a certain jurisdiction, don’t use the internet to make your statements, use another medium such as print.
- Bubba.
Don’t go blaming this on Australia.
You may have heard of Dmitry Sklyarov, a Russian citizen who wrote a software program that violates US law, but is entirely legal in Russia. When he visited the US, he was charged with producing a copyright circumvention device, and detained for several months. The Dow Jones defamation case seems almost reasonable in comparison.
I think also that in this case one of the key things to note in this case is that wsj.com where defamation is supposed to have occurred is a subscription service. To access the information, you have to fill out a form, including information about where you are from. I seem to recall too, that because of this, they were able to establish the exact number of Australian subscribers. Because of that, you can absolutely say that Dow Jones knew that this would be read in Australia. After all, they were accepting money from Australian subscribers. So it’s not like they just put it out there assuming no one in Australia would read it. (Although, if I read the ruling correctly, that shouldn’t make too much of a difference).
Tony Barber’s Underwear said:
You are making my point for me here. You are saying that this ruling means you must conform to the laws in all the countries that have the internet. Which means that this ruling is a huge blow to what people can publish on the internet.
That is the point that we are both making. I think where we differ is as to whether it is necessarily a bad thing. As I stated, I think the main people who this decision concerns are large organisations with a presence in countries that adopt this precedent. As myself and Princhester have stated, the decision does raise some concerns, but you are jumping at shadows. The High Court reached its decision based on firm precedent, and it is not their duty to create new law, simply because the internet is a new medium. Rather, it is the role of the legislature to find a balance and implement a workable solution.
Journalists in Australia (and I’m sure in many if not most other developed countries) are guided by ethical standards, editorial oversight and regulatory review. The internet, however, has allowed anyone with access to a computer and modem to make whatever accusations they like about whomever they like, without fear of redress.
By your reasoning, Gazpacho a group could disseminate child pornigraphy over the internet without fear of prosecution, as long as the pornography was located on servers in a place that does not have child pornography laws.
- Bubba.
Yes they could. And by and large the people that view it in countries where it is illegal could be prosecuted in much the same way as they are now. The child porn rings that I have heard about on the news are busted because people have the pictures on there computers in countries where it is illegal to posses such images.
I might add by your reasoning the Chinese would be able to prosecute people in the US who put up pro Taiwan or Tibetan liberation cites.
Yes, Gazpacho, they could. It’s a big mess isn’t it? What do you think should be done?