Australian High Court threatens net's liberty

Great Debates
41

Are you saying then that the people who are publishing the material on the internet should be able to do it without punishment.

With regard to your China example, I would suggest that whether or not the Chinese courts (if they even have open courts) adopt a similar precedent, any one who is a known publisher of pro-Taiwan articles could face trouble in China regardless.

However, this issue is irrelevant, and I really shouldn’t have brought it up, as it relates to criminal procedure, which is a different kettle of fish to civil liability.

Do you have a proposed solution to this problem, or do you prefer the system where only the law of the land where the servers are located guides the content of webpage?

  • Bubba.
42

If it is legal where they publish it why would you think otherwise? If the material is extremely offensive to certain countries then they can block access to it from their country.

I think this issue is similar banking issues. Some countries have banking laws that facilitate money laundering. Countries that object to this put pressure on those countries to reform their laws. And they scrutinize transactions coming from that country.

I really don’t think that it is a different kettle of fish at all. Basically if we grant Australia the right to enforce their laws on the Internet outside of their country why would China not be granted the same privilege.

43

Straw man, anyone?

No one is “granting” Australia the right to do anything, and Australia is not seeking to do anything other than enforce its own laws within its own borders. If you don’t understand that, go back and read the decision again, and read the various posts in this thread by myself and other lawyers explaining its effect.

You may consider it a privilege for any country outside the US to be able to enforce its own laws within its own borders. I suspect most people would not. Do you realise how offensive your last post is?

44

For the specific case, Joe Gutnick could have sued Dow Jones in the US.

In general people are going to have to get used to the idea that various countries in the world have different standards and it is getting harder and harder for governments to control what people can see and hear.

45

I think if you are going to come up with a solution which is going to be of any real use, you are going to have to deal with more difficult situations.

Say a person is seriously slandered by a website in Outer Mongolia which has no effective legal system, in a way that seriously damaged that person to an extent that would be actionable under US law. And let’s say the person who is behind the slander has assets in the US.

What now?

46

Princhester:

That seems about right. So, you think the ruling was a good thing despite this? There seem to be two sides here:

  1. The ruling was correct, based on existing laws. Even though these laws do not take into account the nature of the internet, we should all applaud the ruling.

  2. The ruling was correct, based on existing laws. These laws should be changed to take into account the nature of the internet.

Also, you seem to think internet publishers only need be worried about countries that have set a precedent like this. That is simply untrue, because there always has to be a first time. It will be little comfort to the first person sued in Estonia in similar circumstances that they are setting a precedent.

As for what can be done, well, sometimes the person being sued could just go along with it. But if they don’t, then it is up to the government to act on their own end, either by trying to block the “offensive” site or making it illegal to view it.

Can he expect a lawsuit?

:rolleyes:

And where has anyone said people in the US should be able to sue foreign web sites for libel?

47

But it is not asserting its laws within its own boarders. It is asserting the law beyond its own boarders. The idea that people should be able to publish legal material in countries where it is legal is offensive?

48

Have you actually read my posts?

Good point. It’s a worrying world. If you had actually read my posts you would see that I agree that something needs to be done.

Ha bloody ha.

No one has and I didn’t say they had. I just asked a question.

49

Sorry to have to remind you of some facts (all of which have been pointed out numerous times in this thread) that don’t fit your views but:

[list] - Dow Jones had and knew they had Australian subscribers, from whom they took payment in return for publication, to Australians

  • the decision is to the effect that Diamond Joe is entitled to sue in respect of his damage to reputation within Australia

  • any decision will only be enforceable against Dow Jones assets in Australia or in other countries if a court in that other country decides that, by the laws of that country the Australian decision should be so enforced

Australian courts do not have any power to do anything outside Australia.

50

No, Australia is not asserting its laws beyond its own boundaries. Due to the nature of the internet, the material was published in Australia, and Gutnick’s reputation in Australia may have suffered damaged.

I’m sure that Gutnick considered suing Dow Jones in the US, however, being as he doesn’t have the reputation there that he has here, most of the damage occured here. As stated, he even made an undertaking to the court that he would not seek damages in any other jurisdiction.

Once again - do you have a solution?

  • Bubba.
51

Princhester
The point about there being paying Australian subscribers makes a very good case for publishing in Australia and not the just the US. Thus by extension that this is not a case of Australia extending their law to other countries.

However, I do not want to see international coverage from websites like CNN and the BBC lessened by their complying with what I consider to stringent libel laws. I do not want to have Falun Gong and Tibetan liberaton websites shut down because the Chinese government was able to sue them for damages and putting them out of business.

I would turn this around and say what if some country had very Draconian libel laws compared Australia’s. Someone in that country could sue you for making disparaging yet true comments about them. Are you being offensively arrogant if you think that you should not be subject to the laws of countries with relatively harsh libel laws for what you publish on an Australian website? I myself think that we should be erring heavily on the side of allowing anything to be published rather than suppressing publication to save the reputation of people.

I don’t think that my case is far fetched at all. Salman Rushdie had to go into hiding for a book that was published in countries where it was legal. The call for his death was issued by people that were then and probably still are very influential in what is law in Iran. I don’t think that the book was even published in Iran.

Court precedents like this one, the Sklyarov case and the Yahoo case give ammunition for more repressive governments to try and suppress dissenting opinion published abroad. By showing that other governments find that regulating foreign content is legal.

The trouble with the Internet and free speech in general is that in exchange for the opinions and information that you like you have to put up with the crap that others like but you don’t.

52

Tony Barber’s Underwear

A solution that I have is that he needs to sue in the US. I am sure you don’t like that one. But I don’t like the solution proposed by the Australian court.

53

99 % agreed Gazpacho.

My only quibble was with the implication that Australia was being “granted” the right to enforce laws within its own borders.

The sooner all restraint on this wonderful thing that is the WWW is agreed worldwide the better.

54

I do still think that in this case Australia did more than enforce laws within its own borders. I don’t think that we want an internet without restraint either. Tony Barber’s Underwear wants a solution to what to do if someone write smack about you on the internet. In general I don’t think that is an unreasonable position. But I don 't want Tony or anybody else to be able to shop around for countries that have different laws about libel and how to decide what the damages to their reputation are. This would greatly damage my ability to know what is going on in the world which I find unacceptable.

I don’t that posting on the internet should be considered simultaneously publishing in all the countries that have the internet. Countries by allowing themselves to be connected to the internet have to expect that their citizens will be able to find things that would not be allowed to be published in their own country.

Some questions for Tony and anybody else who cares to comment about publishing using the internet:

  1. A company Fred’s news that has offices and employees only in country X. They post an article about John in country Y that conforms to the laws of country X. This article is hosted on a machine in country X. Where was the article published?

  2. Fred’s news again based in country X sends an email newsletter to clients for a fee. In this weeks email is an article about John from Y. The subscribers could be from all over the world there is no particular way for Fred’s News to know where the news letter is being read. Where have they published?

  3. Jimbo’s multinational news has offices in many countries and runs many websites targeted to various countries. They write an article about John in country Y. This article is not published on the website targeted and hosted in country Y. But is instead published on the website targeted and hosted in country X. Has the article been published in country Y?

55

What I don’t understand is this. Say I publish something libelous about an Austrailian. Said Aussie then sues for libel. The Austrailian legal system finds for the plaintiff and awards him damages. I live in the U.S.A. I don’t plan on ever going to Austrailia. How’s he going to collect? How do the Courts enforce the ruling when I am out of their jurisdiction?

In the case at hand, what happens if the Dow just tells the Austrailian Legal system to get bent and publishes photoshopped pictures of all the High Court Judges on clown bodies molesting sheep? As long as the publisher has no assets in Austrailia, how is the ruling anything more than just a symbolic one?

56

Who needs Photoshop? :smiley:

57

How about this scenario:

Joe lives in the US. Joe creates a website. He puts on it some opinions of things he likes, and some things he doesn’t. One of those things he doesn’t like is a product manufatured in Australia (just as an example).

Now, this company in Australia comes across his site, and realizes it’s bad press for their product. They realize that it’s not really defamatory under Australian laws, but a clever lawyer suggests that they sue him anyway. A letter is sent, papers are filed, and now Joe finds himself being sued in Australia.

Assuming he doesn’t just ignore it, Joe now has to do something about this. Hire a lawyer in Australia? Probably expensive. Fly over and represent himself? Still expensive. Chances are, he’ll settle with the company out of court.

Sound far fetched? It’s already happening in the US, on a state level. Granted, these two examples are not international incidents, but it illustrates how this concept is easily abused to the detriment of the “little guy”. Don’t just think this is about Dow. The victims of the abuse in those two situations are individuals on a mailing list and small business owners.

I agree with the NY Times article. Being able to sue locally and force your defendant to come after you is a blatant abuse and a hinderence to the Internet.

58

Particlewill, if one obtains a judgment in country A in a particular matter, but it is against a company that only has assets in country B, the laws of country B may well provide procedures for the country A judgment to be registered or otherwise given effect, within country B.

Whether this will occur varies depending upon the two countries involved, what the judgment is for and so on. I can’t recall off the top of my head what the situation is as regards an Australian tort judgment and enforcement in the US. If I find the time I may attempt to look it up and get back to you, or maybe there’s a US attorney reading this thread who could comment…

Ed, the situation that you raise is by no means an internet problem. The internet simply makes broadcast publishing easier. And anyway, if you had to pay some lawyers to defend a defamation suit, you’d be much better off paying Australian lawyers, cos it’s sure as hell going to be cheaper than paying US lawyers :slight_smile:

Not only that, but in many countries, such as Australia, legal costs are awarded against plaintiffs who lose. So it is much more risky to file a bullshit suit against someone just to shut them down in Australia, because if you lose…

Gazpacho, I’d really like to hear your model as to how you say the internet should be regulated. You say that you think it not unreasonable that there should be some regulation.

How would you decide where one can sue for defamation?

I appreciate that your major concern is to avoid litigants shopping around for a jurisdiction that suits them.

The problem as I see it is that if you decide that the decisive factor that will control jurisdiction is something that can be controlled by the publisher, then that simply reverses the problem because the publisher will shop around to find a jurisdiction in which he can’t be sued.

There will always be some country that the publisher can find that has no effective defamation laws.

If you say “the appropriate jurisdiction is decided by reference to the location of the server” then all smart publishers will just move their content onto servers in “Nodefamationlawsonia”.

If you say “the appropriate jurisdiction is decided by reference to the intention of the publisher” the publisher will always say their intention was to publish only to persons in “Nodefamationlawsonia”.

If you say “the appropriate jurisdiction is decided by reference to the residence of the publisher” smart publishers will set up a $2 off shore subsidiary in “Nodefamationlawsonia” to front their website.

I say again, what is your suggestion?

59

How about this scenario–where you forget your case notes which had absolutely nothing to do with the decision at hand by the Australian High Court, and you think about the decision at hand, which involved a Victorian businessman, who was potentially defamed by an article published on a site that was accessible by Victorians, and was accessible by Victorians, and published in Victoria, according to all precedent.

  • Bubba.
60

Related question: How does Europe deal with this sort of thing?

Europe has lots of little countries that are very close to each other and have different laws. I’d imagine that people in some countries can recieve radio or television broadcasts from other countries.

For instance, it seems quite likely to me that some Danes would be able to recieve German radio or television broadcasts.

Am I right?

How are defamation problems sorted out here?

What if Mr Dane was defamed by a German radio station - would he be able to sue in Denmark?

It seems relevant and possible to me - does anyone have an answer?