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The Courts Government News Your Rights Online

Gutnick Can Pursue Dow-Jones Libel Case 270

Anonymous Coward writes "Libel cases based on Internet material could be mounted anywhere in the world, after a landmark judgment handed down by the Australian High Court today. International news service Dow Jones failed in its bid to have a defamation action brought by mining magnate Joseph Gutnick heard in the United States."
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Gutnick Can Pursue Dow-Jones Libel Case

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  • You can read the full judgement HERE

    Nice conservative judgement in which the judges refused to redefine the law to suit the WWW (or Dow-Jones).

    • Re:Link to Case (Score:5, Informative)

      by Capsaicin ( 412918 ) on Monday December 09, 2002 @09:25PM (#4849702)
      • Thanks for the link.

        A few possibly interesting observations:

        The most substantive is that some may wonder at the liberal citation of American precedent. The reason is something called choice of law, which in this cases tells the Australian court to look to American precedent in certain cases. We have similar legall traditions, but this must be quite difficult in some cases. I read one case where a serviceman sued an American company for a defective mortar or something; the place of injury tort law was determined to control -- in that case, Cambodian law.

        There's no "e" in judgment -- weird lawyer thing -- no, I don't know why. This is apparently true in Australia as well as the U.S.

        Australian law is ahead on the U.S. on this point: numbered paragraphs! American lawyers still cite page numbers, though few ever see physical pages. Paragraph numbering allows for for more precision, though I wish they could set them off a little, so it didn't feel as though you had someone slowly counting over your shoulder.

        The tone is also more casual for a high court; American judges generally avoid using "I" in their judgments unless writing in dissent.

        (Well, i think these things are interesting. :)
        • Australian law is ahead on the U.S. on this point: numbered paragraphs! American lawyers still cite page numbers, though few ever see physical pages. Paragraph numbering allows for for more precision, though I wish they could set them off a little, so it didn't feel as though you had someone slowly counting over your shoulder.

          Offtopic: Paragraph numbers have always featured in English/Australian judgments, although it is far more common to see page citations than parapoint citations. This is because it is easier to look up a page citation in a physical volume than a parapoint (for obvious reasons). However, as more and more research is done online, there is a gradual shift towards "medium neutral citation" such as parapoints so that both writers and readers don't have to haul their lazy a**es from their terminal to a bookshelf to look up a page citation. Just a bit of trivia to lighten your day :).

          • Ofcourse the lazy designers of those systems could easily create a cross-reference between pagenumbers and paragraph numbers so nobody has to get out of their comfy chair.
            Of course this could easily evolve into virtual pagenumbers which don't exist in real life since the publications are never printed anymore. But he, why change something that works and everybody seems to be comfortable with..;)
            • Actually -- I don't have a sample handy -- private online services already do provide cross-references using symbols in the text. I never picked up a printed volume except to (1) look for italics not in the plain-text computer version; and (2) to fix typos and such in the electronic edition. It's still a bore to type up -- especially since the pages and paragraphs align differently in different pubs.

              The printed page will not go away for a while yet.
  • by www.sorehands.com ( 142825 ) on Monday December 09, 2002 @09:24PM (#4849693) Homepage
    This is a good argument for including terms of use in a website.

    In most terms of use, it is customary to include choice of law and jurisdiction provisions.

    I would think that courts would not enforce the ones that are too broad, but if it is narrow it may work. See a lawyer about this since your milage may vary and IANAL.

    • In most terms of use, it is customary to include choice of law and jurisdiction provisions.

      Not relevant. The point is that a third party has prima facie had their reputation damaged. Any contractual agreements between the publisher and the reader cannot affect that third party's rights.

      • If the person claiming libel, read the article, then it may be argued they agree.

        Of course this all comes down to how much a person who is making a claim is exempt from copyright and EULAs in investigating for a lawsuit or potential lawsuit.
        • Granted, the article covers choice of law in a libel case, but the interaction between contracts and investigation reaches to other areas of law.

          Of course this all comes down to how much a person who is making a claim is exempt from copyright and EULAs in investigating for a lawsuit or potential lawsuit.

          For example, in the United States, the DMCA's circumvention ban does not apply to any investigative action in which federal, state, or local government is involved (17 USC 1201(e) [cornell.edu]).

          And doesn't a subpoena trump a unilateral contract?

        • If the person claiming libel, read the article, then it may be argued they agree.

          Of course they didn't read it. Someone told them about it. :)

          Usually a choice of law clause will read something like "... to litigate any dispute arising ouf of this subscription according to the law of ..." Now the libel cannot be said to arise out of the subscription. In fact it is difficult to see how a clause could be broad enough (and still remain enforcable) to cover a situation like this.

    • I don't think that a defamation action can legally be excluded by a choice of law clause. The purpose of a defamation action is to "refame" or remove the defamation of the claimant in the place where the action was claimed. See the judgement http://www.austlii.edu.au/au/cases/cth/high_ct/200 2/56.html paragraph 6.

      It does not seem likely that the publishers can say that they are free to defame in any jurisdiction other than the ones they choose.
    • and as most countries do not recognise terms of use as being able top remove your rights the US would become the only place to NOT try the case...
  • by m.lemur ( 618095 ) on Monday December 09, 2002 @09:27PM (#4849710)
    I suppose....

    Get your case heard in a non executing country.
  • Geeeez... (Score:4, Informative)

    by WeekendKruzr ( 562383 ) on Monday December 09, 2002 @09:31PM (#4849763)
    Wow, way to create an incredibly reactionary and inaccurate story summary. In reality, this judgement only affects lawsuits in Australia and not "the rest of the world." You know, given the fact that the ruling of an Australian court has no jurisdiction within any other country. Not only that, but this doesn't say in the least whether or not it actually was libel, he merely won the right to have his case heard in the court. The court could still decide that this particular case does not in fact amount to libel.
    • It can be used as precendent where the laws are comparable.

      especially the common law which is still heavily in use in the English speaking world.
      • Re:Geeeez... (Score:3, Interesting)

        by Capsaicin ( 412918 )
        It can be used as precendent where the laws are comparable

        Not exactly a precedent (ie binding), but certainly as pursasive. The other problem (from a publisher's point of view), is that if internet publishing isn't brought to its knees by Australian defamation actions, it will become a lot more difficult to argue that adopting a non-traditional view of where defamation takes place is vitally necessary for the survival of web based publication.

        • The crucial paragrpah is this one:
          ...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 in its majority judgment.

          which makes it, not so bad when you think about it, until all the worlds powerful take up residency in Singapore (which has truly horrific defamation laws).
          • Not so bad? It still requires any publisher (meaning anyone with a website) to be an expert in the law of every jusridiction in the world. It doesn't matter what it is you're writing, you never know what obscure country has some bizzare law that covers it. You don't like peanuts? Well the nation of Greater Bumfukia has a law protecting their peanut plantations from defamation.

            -
            • a) the PERSON (not a thing) you're defaming has to be identified by you in order to be defamed.

              b) it's a problem for dow jones because they have a presence in Australia. If you don't have any presence in Greater Bumfukia there's no civil come-back to you.

              If on the other hand you DO have a presence there then perhaps you should be mindful of the laws of that land without hiding behind a web-hosting on geo-cities.
              • a) the PERSON (not a thing) you're defaming has to be identified by you in order to be defamed.

                Maybe according to the laws of YOUR contry, but Bumfukia has different defamation laws. Besides, the issue is attempting to apply laws in general to something someone has done in a location outside the jurisdiction.

                And the fact the court generally has zero ability to enforce its ruling just highlights how stupid it is to start with.

                -
              • it's a problem for dow jones because they have a presence in Australia. If you don't have any presence in Greater Bumfukia there's no civil come-back to you.

                Yes there is. You take the record to an American court, tell them you were awarded $X by the Supreme Court of Bumfikia, and ask for an order awarding the amount you are entitled to. Easy.

    • Re:Geeeez... (Score:5, Insightful)

      by Any Web Loco ( 555458 ) on Monday December 09, 2002 @09:50PM (#4849922) Homepage
      I agree it was completely inaccurate and reactionary, but you're wrong that this won't affect the rest of the world. It will, and in at least 2 ways. First, it means that any legal person (ie, includes corporations) which has offices in Australia can now be held liable for posting information to a server in Uzbekistan, if that information is viewed by the relevant public in Australia. The second way in which it matters to the rest of the world is that it sets a precedent, and one which IMHO (and IAAL, so I know a little about this) will impact judicial thinking in other jurisdictions, and quite probably along the same lines. Defamation law, like Copyright law, is one of those things which is slowly becoming internationally equivalent... epect this in a Court Near You soon.
      • Re:Geeeez... (Score:3, Informative)

        by Capsaicin ( 412918 )
        First, it means that any legal person (ie, includes corporations) which has offices in Australia can now be held liable for posting information to a server in Uzbekistan, if that information is viewed by the relevant public in Australia.

        I'm not sure that it is even a requirement that the tortfeasor have a presence within the juridsiction. What is necessary to grant jurisdiciton to the Victorian Supreme Court is that "the proceeding is brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act or omission wherever occurring," which is one of the requirements for serving outside the jurisdicition.

        True having a presence within Australia will make it easier to get at the damages if they are awarded, but I think there are international agreements in place between Australia and the US as regards foreign money orders.

    • Yes, it only applies to Australia. So this is mainly only a problem for corporations that have a presence everywhere (like news services, for example). For them, though, this is very problematic, and as mentioned, even if this guy loses his suit, the finding of fact already decided (I use the US term but I assume aussie is similar) is important in itself.

      For private individuals, I assume you can tell the aussies to piss off. I would be surprised if the US extradited anyone on such a charge, but you never know. Basically, if you libel an aussie, don't plan on that Sydney vacation.
    • and as this action only pertains to Australia he could simultaniously start action in all other countries. Australian law is based on British law (as is most law) so the basis for the decision and the relevant arguements would be the same elsewhere.
  • Not good (Score:2, Insightful)

    "Libel cases based on Internet material"

    As a society, most of us don't realize the serverity of what we say on the internet. Now that internet defamation is prosecutable, I expect it to be one of the fastest rising crimes ever.
    • Not quite, a company, i.e. a newspaper can be libelous but peoples letters in the letters page are considered opinion rather than fact. I think that comments here would remain opinion but if the article made a statement that could be considered libel. People in general should think about what they say so I do not think it would be a bad thing, I would think huge punitive damages against individuals bad if all they said was someones breath stinks.
  • Disclaimer (Score:4, Interesting)

    by SparkyMartin ( 206236 ) on Monday December 09, 2002 @09:34PM (#4849787)
    Just put a disclaimer on you website, emails, and all your discussion board postings. Something like:

    "Not intended to be viewed by anyone in the country of Australia. By viewing this you agree that you forfeit any legal recourses available, cannot hold the posting or publishing individual or party accountable for any comments that have been made"

    If it works for shrink-wrap software, it should work for anything else.
    • Re:Disclaimer (Score:5, Interesting)

      by tc ( 93768 ) on Monday December 09, 2002 @09:37PM (#4849822)
      Doesn't work. The person being defamed/libelled is a third party, not the reader of the site. They could sue for libel without ever having read the site, or encountering your proposed disclaimer.
    • Try more like "any country outside the originating justidiction"

      It's a reasonable judgment.

      Gutnick's (who, in my opinion, is a bit of a weasel [note under australian defamation laws a clearly marked statement of opinion is not libellous]) reputation was damaged primarily in the place he lives and works.

      Dow Jones could choose to ignore the verdict of the Supreme Court of Victoria (the state Joe Gutnick calls home) but they have interests in Australia that are probably worth more than the damages against them.

      Try and imagine if the Sydney Morning Herald spectacularly defamed a major american tycoon (ok, and if the laws in the US were more defamation friendly) I think you'd see this differently.

      This is going to bring about big problems, but they are things that do have to be resolved and we can't close our eyes to it anymore.

  • by Maul ( 83993 ) on Monday December 09, 2002 @09:35PM (#4849798) Journal
    #1. How can they enforce this sort of thing on everyone?

    For example:

    Let us say that I say something mean about someone in Australia on the web. That person then files
    suit against me in an Australian court.

    I have no presence in Australia. Even if they manage to serve the suit to me via mail or something, what inclines me to go to the court? What can they do to me, since I'm in the USA?
    Would they try to get the US Government to extradite me? Sure, it might just prevent me from ever visiting Australia, but I don't see how they could get someone over there to trial.

    Since Dow Jones probably has some sort of presence in Australia, I can see how they might be more inclined to follow the court's orders... but what about everyone else?
    • They don't really care about *you* per se. Someone who considered themselves defamed would go for deeper pockets - your employer (if you posted from work), or your ISP (more likely). If they didn't remove the offending material, they'd try find a way to have *them* brought as a party in Australia, which, being corporates, is a hell of a lot easier.
    • IANAL, but I have read some stuff written about this area.

      In short, if you've got not presence in Australia, don't lose any sleep over this. US courts have a long history of throwing out decisions that violate public policy (i.e. free speech). For instance, see Matusevitch v. Telnikoff (702 A 2d 230 (Md CA 1997)). In this case an English defamation decision was thrown out in America.

      • by StArSkY ( 128453 ) on Monday December 09, 2002 @10:06PM (#4850037) Homepage
        This is only a civil and not a criminal act, so as an individual you don't have to worry. If however defamation was criminal (eg you can go to Jail) then the Australian government could have you extradited under a common treaty.

        If you are an individual in the US, it would also be very difficult for you to libel, slander, or defame someone in Australia anyway (unless you are working for an employer that has power over public opinion such as a big company or press). eg. Bill Gates could Slander me (but only because he is idenitifiable becasue of Microsoft). In that case I could sue Microsoft IF they endorse or publish the information.

        Either way I don't think that Gutnick will win the case anyway. The press are a forum for opinion, that is what they do, offer their opinion and they did. I don't think there are many people who would have their perception of Joe altered in anyway by the article they published. Everyone here in Australia already knows he is a blood sucking parasite and as such the perception of his good standing is crap and has been for years anyway.

        All of the companies he has run are in financial ruin (well most of them), and in typical fashion Joe is teflon man (the shit never sticks).

        Hell, he even got kicked off the board of the football club he financially supported because he was such a prick. How can anyone who nobody respects or admires be defamed!

    • Yes they can still try you but of course enforcing the judgement is problematic. As part of the judgement would probably be a court order requiring removal of the offending remarks it could lead to your content being blocked within Australia (although as Defamation is done at a State level here it shold really only apply within that state). Of course it would be nearly impossible to enforce the financial part of the judgement unless you gained some sort of financial status within the country.
      The US government wouldn't extradite you on a civil matter ( defamation is a civil matter, libel a criminal one ).

      BTW Truth is not necessarily a defence against defamation in Australia, if intent to cause harm is the motive you can still lose a case. The defamation laws are highly tilted in the favour of the rich over here.
      • BTW Truth is not necessarily a defence against defamation in Australia, if intent to cause harm is the motive you can still lose a case. The defamation laws are highly tilted in the favour of the rich over here.

        Which is obviously why he wants the suit to be handled in Australia. It's a good old case of jurisdiction shopping; the Australian laws are more favorable, so he wants the case to be tried there. The American laws are more favorable to Dow Jones, so they want the case tried in America.

        That said, there is a certain degree of reason to the Australian court's ruling. If a web site can actually be read anywhere, then damage from defamation can happen anywhere, and the plaintiff should be able to sue wherever he suffered the damage. The fact that there's a specific person involved naturally limits the number of places where damage can take place, so it inherently limits the amount of jurisdiction shopping that can take place and the number of applicable defamation laws that the publisher needs to consider.

    • by vandan ( 151516 ) on Monday December 09, 2002 @10:12PM (#4850085) Homepage
      Althought I agree with you, you have to admit it's a little unfair of US citizens to complain when they do the same things themselves.
      How about that DMCA case with the Russian guy. He broke a US law while in his home country and got in the shit over it. So US jurisdication covers the entire world and everyone elses' jurisdication only covers their own lands' and then only when it doesn't contradict US law?
      • No, not at all. I am in agreement with you that Dmitri should not have been arrested in the manner he was. That was pretty shameful of the US Government. I believe US jurisdiction should cover the US, ONLY. I believe that Australian jurisdiction should cover Australia, ONLY.

        However, it seems that the governments of many countries, the US and Australia included, are now under some delusion that their laws should extend beyond their borders. The US is a huge offender in this area, no doubt. It doesn't make me happy that my country is doing this.
        • Disclamer: I am Australian, and IANAL

          Australian courts have juristriction in Australia. If found guilty under Australian law then they will be punished under australian law, and will have to pay 1) court costs 2) compensation.

          Note that in Australian there is no concept of punitive damages, and costs are almost always paid for by the loosing party, so the sums of money are smaller then those in the US.

          There is nothing about this being enforced in the US, but if the company wants to have do anything in Australia, they will have problems. The company may be based in the US, but most large companies have operations in many countries. Unless each local entity was its own corperation (and hence a person in the eyes of the law) each local office would be liable for any verdicts against the whole company.

          There is a flip side to this arguemnt. If a company is based in one country, but commits a crime in another, which country should the case be heard in? Consider that unlike a person, a company can operate in many countried at the same time. Imagine that microsoft was registered in a small island country. Would that prevent the US anti-trust actions from beign heard in the US? Should Microsoft not be sued in Europ for anti-compeditive actions because it is based in the US?

      • Let's be fair here. The US citizenry didn't pass the DMCA. A bunch of old congresscritters did (didja hear Strom Thurmond just hit 100?)


        It's an assinine and stupid law, but if it's enforced in your country it's because your government rolled over, which is to say that both my government and yours are doing a poor job. You *can* say no.

      • vandan writes:
        "How about that DMCA case with the Russian guy. He broke a US law while in his home country and got in the shit over it. So US jurisdication covers the entire world and everyone elses' jurisdication only covers their own lands' and then only when it doesn't contradict US law?"

        To be fair, unless you have another post by this guy where he's cheerleading the US Gov't on that one, I really don't think you can hold it against him. Just because the MPAA gets away with sqwishing fair use doesn't mean I have to forfeit ever arguing fair use again.
      • He was arrested in the US. Not that I agree with him being arrested, but if he knew he was violating a US law, he should have never come to the US.
      • US Citizens hate the DMCA as much as the rest of the world. US Citizens don't do anything to citizens of other countries.

        The US Government does those things and the US *government* is completely out of touch with the wishes of its citizens, because it is controlled by a handful of people who are completely out of touch with any passion other then greed.

        • Are you sure that the US Govt. is out of touch with the people? Or is it that it is *in* touch with those who have fat wallets?

          This administration makes Taft look good. (And the one before wasn't that much better.)

          This is a structural problem. If you look at the cost of running for office, you could predict ahead of time that the only ones who are successful are beholden to SEVERAL people who have bought them. Possibly Bill Gates could afford to run. I might even vote for him. I despise him and his company, but he COULD be an honest candidate if he wanted to. Most candidates don't have that option. Ross Perot is the only one I can think of. (Mind you, being honest isn't the same as being a good choice.)

      • 1. Many US citizens who are cognizant of the Skylarov case and those like it aren't at all happy about setting a precedent where US laws can be enforced against entitities outside of US jurisdiction.

        2. It could be argued that Dmitri broke US law while doing business in the US, in which case arresting him under DMCA provisions would be justifiable (provided that the DMCA laws were just, and that's debatable as well).
      • Grandparent didn't complain. He said, "Would they try to get the US Government to extradite me? Sure, it might just prevent me from ever visiting Australia, but I don't see how they could get someone over there to trial."

        You are making exactly the wrong comment. Dmitri is accused of violating a US law in the US. Just as if he had sent a bomb here in the mail. Since the DMCA is a flagrant violation of all kinds of essential human rights, there is no way Russia would have extradited him. So, instead, they waited until he flew here on his own, and arrested him on US soil.

        There is zero "jurisdiction" question here at all. A US law was violated in the US. The dude who they think did it came to the US. They arrested him in the US. Nothing relevant to the case occured outside US borders.

        Similarly, Dow Jones committed a crime in Australia. Since they're already in Australia, some Australians are taking them to court in Australia. Again, no jurisdiction question at all. It's just interesting because it raises the point that if certain speech is illegal in any nation, making that speech on the internet violates law in that nation.

        Grandparent poster asked, "What if I never went to Australia?" and that's an interesting question. Not a complaint. Jesus.

        I keep having to reiterate this: The problem with Skyalarov's case is that he did not violate the DMCA, and the DMCA is an unjust law. There is no jurisdictional question.
    • Actually, even assuming that libel is still a prosecutable "crime", the US extradition treaty (27 UST 957) with Australia only covers specifically enumerated felonies, (libel is not one of them... therefore enforcing a judgment against you would be next to impossible):

      1. Murder or willful murder; assault with intent to commit murder.

      2. Manslaughter.

      3. Aggravated or willful wounding or injuring; assault occasioning actual bodily harm.

      4. Unlawful throwing or application of any corrosive or injurious substances upon the person of another.

      5. Rape; indecent assault, including unlawful sexual acts with or upon children.

      6. Illegal abortion.

      7. Procuring, or trafficking in, women or young persons for immoral purposes; living on the earnings of prostitution.

      8. Abandoning or exposing a child when the life of that child is or is likely to be injured or endangered.

      9. Bigamy.

      10. Kidnapping; child stealing; abduction; false imprisonment.

      11. Robbery.

      12. Burglary; housebreaking or any similar offense.

      13. Larceny.

      14. Embezzlement.

      15. Obtaining any property, money or valuable securities by false pretenses or other form of deception.

      16. An offense against the law relating to bribery.

      17. Extortion.

      18. Receiving any property, money or valuable securities knowing the same to have been unlawfully obtained.

      19. Fraud by an agent, bailee, banker, factor or trustee, by a director or officer of a company or by a promoter of a company, whether existing or not.

      20. An offense relating to counterfeiting or forgery.

      21. Perjury; subornation of perjury; conspiring to defeat the course of justice.

      22. Arson.

      23. An act done with the intention of endangering the safety of any person traveling upon a railway or in any aircraft or vessel or other means of transportation.

      24. Any seizure or exercise of control, by force or violence or threat of force or violence, or by any other form of intimidation, of an aircraft.

      25. Piracy, by statute or by law of nations; revolt on board a vessel against the authority of the master of the vessel.

      26. Malicious injury to property.

      27. An offense against the bankruptcy laws.

      28. An offense against the laws relating to narcotics, dangerous drugs or psychotropic substances.

      29. Dealing in slaves.

    • This is not about some little company existing only in one country that was unfortunate enough to be hit on in another.

      Dowjones [dowjones.com] has several Australian offices and it markets services there.

      What is dangerous though is that it sets some dodgy precedents for reporting of less savoury regimes in, for example, Zimbabwe that like to keep criticism to a minimum. The BBC [bbc.co.uk] could certainly be hit in court for their reporting of Mugabe's administration (in earlier times they certainly had a bureau there(. One man's reporting is another's unjustified criticism.

      • That worry has to be at least slightly tempered by the knowledge that Mugabe doesn't need a civil suit to make his displeasure known. It's not as though he's above appropriation of private property and threats of violence against people for no better reason than that they make inviting targets. If he wants to try to bully the BBC into giving him good coverage, he's likely to do so no matter what the Australian Supreme Court says about this case.

        • The BBC has been banned from Zimbabwe for a while, but every despot likes to have an excuse to go after any critical reporting. If the excuse has been used in a western country, even easier.

          I guess though that Australia suffers from a British-style approach to defamation because of the related legal systems, which often makes rich men very much richer.

    • What can they do to me, since I'm in the USA? Would they try to get the US Government to extradite me?

      International extradition is only for criminal offences, and even then only when the conduct alleged is criminal in both contries.

      The Court acknowledged [austlii.edu.au] (at paragraph 53) that a defamation action will be pointless if the defendant does not have assets in a jurisdiction that will enforce any judgement

  • by mcc ( 14761 ) <amcclure@purdue.edu> on Monday December 09, 2002 @09:36PM (#4849811) Homepage
    Aren't many corporations these days-- for tax purposes, or whatever-- incorporated outside of the united states?

    At the least, don't most corporations have 'branches' in various different foreign countries?

    This decision, of course, so far applies only to Australia, but if decisions like this are made in other countries as well, could a corporation with branches in many countries be free to sue for libel under the jurisdiction of the country of its choice?

    If so, this could be useful for corporations. I am told many countries, for example Britain, have much nastier libel laws than america.

    For example, given this ruling, if i say something about mcdonalds at MyShittyNewsBlogNoOneReads.com, and they want to charge me with libel, would they be free to actually file the suit in australia because even though both i and mcdonalds reside in america, since McDonalds has an australian wing? Would that mean i'd have to fly to australia to defend myself or something?

    Of course, in the highly unlikely chance they tried this, if i just ignored them and said "screw you, i'm ignoring this lawsuit and staying where i am, the u.s. probably isn't going to extradite someone for libel", then the worst that could happen would be that if i ever set foot in australia i could be charged with contempt of court or something, right? I guess that's not so bad, there are lots of places in the world that aren't australia, but still.

    There is great potential for abuse in this kind of ruling..
    • Aren't many corporations these days-- for tax purposes, or whatever-- incorporated outside of the united states?

      From http://www.netstate.com/states/intro/de_intro.htm:
      Delaware has been called the "Corporate Capital" because so many corporations have incorporated in the state because of it's business-friendly law. According to the Delaware Division of Corporations (2002), more than 308,000 companies are incorporated in Delaware. This includes 60% of the Fortune 500 and 50% of the companies listed on the New York Stock Exchange.
    • For example, given this ruling, if i say something about mcdonalds at MyShittyNewsBlogNoOneReads.com, and they want to charge me with libel, would they be free to actually file the suit in australia because even though both i and mcdonalds reside in america, since McDonalds has an australian wing? Would that mean i'd have to fly to australia to defend myself or something?

      They could file suit in Australia all they wanted, but since you're not Australian, they couldn't force you to do anything (though you might have to rethink any vacation plans you had for Australia). For that matter, the courts would probably recognize this and throw out the suit before it even got anywhere.

      If you were a multinational corporation too, that would be a different matter, of course.

  • by RobertEwing ( 100767 ) on Monday December 09, 2002 @09:41PM (#4849850) Homepage
    ...read the case [austlii.edu.au]:

    164. The dismissal of the appeal does not represent a wholly satisfactory outcome. Intuition suggests that the remarkable features of the Internet (which is still changing and expanding) makes it more than simply another medium of human communication. It is indeed a revolutionary leap in the distribution of information, including about the reputation of individuals. It is a medium that overwhelmingly benefits humanity, advancing as it does the human right of access to information and to free expression. But the human right to protection by law for the reputation and honour of individuals must also be defended to the extent that the law provides.
    165. The notion that those who publish defamatory material on the Internet are answerable before the courts of any nation where the damage to reputation has occurred, such as in the jurisdiction where the complaining party resides, presents difficulties: technological, legal and practical. It is true that the law of Australia provides protections against some of those difficulties which, in appropriate cases, will obviate or diminish the inconvenience of distant liability. Moreover, the spectre of "global" liability should not be exaggerated. Apart from anything else, the costs and practicalities of bringing proceedings against a foreign publisher will usually be a sufficient impediment to discourage even the most intrepid of litigants. Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this especially if that judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture.
    166. However, such results 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[202]. In default of local legislation and international agreement, there are limits on the extent to which national courts can provide radical solutions that would oblige a major overhaul of longstanding legal doctrine in the field of defamation law. Where large changes to settled law are involved, in an area as sensitive as the law of defamation, it should cause no surprise when the courts decline the invitation to solve problems that others, in a much better position to devise solutions, have neglected to repair.
    So they seem to be saying: Hey, the law says we've got to do this. It's the wrong result though, so can someone please change the law. Courts get blamed for a lot of things that are really the fault of the parliament (or congress, if you're in the US).

    • I thought this sounded like good old Justice Kirby, I checked and it was Justice Kirby!

      Kirby J is widely regarded as the left-winger of the right-wing High Court bench and he has written some great articles on human rights online and privacy in cyberspace.

      In fact if anyone is interested, both his honour and former UNHCR Mary Robinson will be speaking on the issue at the 13th Commonwealth Law Conference in Melbourne in March next year.
  • for those of you who're interested, here's [austlii.edu.au] the full text of the judgement. It's long, but not hard to follow. The most interesting parts (the actual reasons for the judgement) can be found from about para 180 onwards.

    This is important stuff, and not just for Australia - it sets a precedent which other jurisdictions will follow.

    So what do you think? Erosion of Your Right Online (TM) or a transjurisdictional extension of them?

  • Hmm... (Score:2, Insightful)

    by El ( 94934 )
    Does this mean Saudi Arabia can now shut down ALL the porn sites, as they are illegal there? This IS a pretty scary precedent.
    • The judge specifically considered defamation a special case. If you write an article, it is clear who you are potentially libeling. Therefore, the judge said, you can determine what laws would apply. This is not the case with most other restrictions on speech, so Saudi Arabia could not shut down porn. It does, however, seem to imply that Saudi Arabia could try foreign web journalists for insulting the Saudi government, which IIRC is illegal there.
    • This action does not in any way extend legal powers beyong anyones boundaries. There is no mention of any enforcement action taking place in a foreign country. That said I would sugest that known porno hosts avoid holidays in Saudi Arabia as they could be prosecuted for distribution across the internet. Then again, does anyone go to Saudi for a holiday? Oh look, another sand dune... and over there you can see an oil pipeline... etc.
  • by SoCalChris ( 573049 ) on Monday December 09, 2002 @10:08PM (#4850053) Journal
    I'm surprised no one has refrenced this yet... http://www.snpp.com/episodes/2F13.html [snpp.com] Andy: Hear ye, hear ye. This session will now come to order. With the cooperation of the US Department of State, we have present today one Bart Simpson.

    [everyone mutters amongst themselves]

    I believe he has something to say. Bart?

    Bart: [goes to microphone, scratches, clears throat several times]

    I'm sorry. I'm sorry for what I did to your country.

    [everyone applauds]

    Andy: [jovial] Well, you're free to go, Bart...right after your additional punishment.

    Homer: Punishment?

    Andy: Well, a mere apology would be a bit empty, eh? Let the booting begin.

    Homer: Booting?

    Andy: Aw, it's just a little kick in the bum.

    [a man with a gigantic boot walks in]

    Bart: Y'uh oh.
  • What it means (Score:5, Informative)

    by siliconbunny ( 632740 ) on Monday December 09, 2002 @10:15PM (#4850099)
    Watching /.'rs comment on law is amazing . The whole thing is simple:

    A. if you post something defamatory on the web, and it affects someone somewhere in the world, don't be surprised if they try to sue you in whatever country that person has a reputation to protect.

    B. most baseless suits (including those where the plaintiff has no reputation in the country where the suit is lodged) will be stayed in most jurisdictions--it's called forum non conveniens.

    C. defamation is not a crime. This isn't about extraterritorial criminal laws.

    D. Insulting a religion or king *may* be a crime -- eg lese majeste in Thailand. Problem: depending where the poster is, courts of that country may not have jurisdiction, and the crimes are unlikely to be extraditable (no dual criminality and all that). Solution: if you insult a country or its king, don't visit it. If you insult a religion, don't visit countries where that is an official or protected religion.

    E. much free speech law in the US proceeds on a bogus premise anyway. The First Amendment (try reading it [cornell.edu]) is supposed to prevent the Government enacting laws which impose censorship ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press") and was intended to prevent laws stifling policical discourse. It is a restraint on Congress' ability to enact laws. It shouldn't apply to one private person slurring another without justification, any more than it applies to shouting fire in a crowded theatre. No Federal law == amendment not apply.

    F. Even if a US company or person is sued overseas, unless they have assets in that jurisdiction, they are likely to be safe. No assets = nothing to enforce the judgment against locally, even if the plaintiff wins. Further, US courts will probably not enforce a foreign judgment obtained under libel laws which are incompatible with the ridiculously overbroad reading given to the First Amendment.

    G. the issue in the Dow Jones case was interlocutory: could the case proceed to hearing in Victoria or not? There has been no trial. Whether the story was defamatory or not, and whether or not any defence applies, is only now to be considered.

    H. the result of the judgment [austlii.edu.au] is to affirm responsibility -- if you have to power to say something nasty about someone, wherever they are located, you have the correlative responsibility for what you say. Being based overseas is no excuse. My spin: if you don't like that, use technological means to limit who sees the material; and/or check your facts about what you are saying; and/or don't make it a slur; and/or check the local laws of the places your target lives & has a reputation, and is accordingly likely to sue. (The judgment also politely observes that many US courts do not understand the single publication rule! :).

    I. Godfrey v Demon was not about this issue. There, the defendant ISP which carried the objectionable posting was based in the UK, as was the plaintiff. See a good potted summary [cyber-rights.org] of the case.

    J. Before anyone jumps to a conclusion and complains about US-centricity, I am not based in the US. Many web servers are.

    K. I am a lawyer, but this post does not constitute legal advice, is not offered with any warranty, and I assume no responsibility for anyone acting upon it.

    • E. No Federal law == amendment not apply.

      That sort of ignores Amendment 14 [cornell.edu], which in (really) short says that the Federal constitution applys to the states as well.
    • A. if you post something defamatory on the web, and it affects someone somewhere in the world, don't be surprised if they try to sue you in whatever country that person has a reputation to protect.

      In my country (Bumfukistan) I have a reputation as the greatest lover in the world. I just found a post that says siliconbunny is the greatest lover in the world. In Bumfukistan the penalty for this defamation is death. I have a reputaion to protect.

      B. most baseless suits... will be stayed in most jurisdictions

      Bumfukistan never dismisses baseless suits.

      C. defamation is not a crime.

      It is in Bumfukistan.

      D. ...don't visit countries where...

      You have half a point there. Don't visit countries with fucked up laws, they can chop your head off the moment you arrive. You better hope your government doesn't have a broad extradition treaty. It's a really lousy solution though. Do you really want to check the entire legal code of every contry you enter to see if anything you ever did violates their law? Like insulting a religion or king, or having pre-marital sex, or voting, or eating a hamburger, or reading Huckleberry Finn.

      E. much free speech law in the US proceeds on a bogus premise anyway.

      In your oppinion US free speach is ridiculously overbroad. That's nice. Actually it supports my position. What about some other country that is ridiculously overnarrow in your oppinion? The internet is global, try applying the worst laws from every legal system. Or any two with mutualy exclusive requirements. Whoops! No one can say or do anything. I'm sure something in your post violates a law somewhere in the world, maybe Zaire has a law saying anyone who identifies hmself as a lawyer must state where he's licenced to practice.

      F. Even if a US company or person is sued overseas

      You sure seem obsessed with the US. US shmoo-ess. I don't care what two countries are involved. It's a lousy idea to try to apply laws to things that occurr outside their jurisdiction. Your defence that that court will most likely be incapable of enforcing its ruling just reinforces how stupid it is in the first place.

      G. the issue in the Dow Jones case was interlocutory: could the case proceed to hearing in Victoria or not?

      It should have been tossed for lack of jurisdiction. The ruling itself pointed out several of the problems with allowing jurisdiction. In my oppinion he dissmissed some of them too lightly. Still, the judge said the law needs to be fixed.

      H. the result of the judgment [austlii.edu.au] is to affirm responsibility -- if you have to power to say something nasty about someone, wherever they are located, you have the correlative responsibility for what you say. Being based overseas is no excuse.

      Exactly, and I should be held accountable by the laws that apply to me. The other person being based overseas is no excuse to apply some random set of laws to me. Let's say I meet you in a diner in my country, we have a spat and I "defame" you. Now you go home to some unknown country and sue me? LOL!

      (The judgment also politely observes that many US courts do not understand the single publication rule! :)

      Ok, so what's the single publication rule? chuckle

      I.
      J.


      No complaints :)

      K. I am a lawyer, but this post does not constitute legal advice, is not offered with any warranty, and I assume no responsibility for anyone acting upon it.

      Well I'm not a laywer, so there! :D
      Anyone who considers anything I say to be legal advice and acts upon it is a moron.

      Oops, now I'll get sued for defamation in Uruguay for the "moron" comment.

      -
  • anybody who has ever had access to the internet is declared guilty of something, somewhere.

    Film at eleven.

    KFG
  • is that Australian defamation laws are considerably stricter than, say, the United States. That's why Gutnick is trying to sue here rather than there.

    The other point to be made here is that the High Court's ruling is not on a constitutional issue. Therefore, whilst it may not affect this case, it's quite possible that Australian laws may be passed in the future that explicitly define where something is published with regards to the internet.

    Exactly how that definition *should* be worded is worthy of some discussion, also...

  • For a scholarly, but readable roundup of Australian Defamation Law and the Internet I'd recommend:

    http://www.efa.org.au/Issues/Censor/defamation.htm l [efa.org.au]
  • Reversi (Score:3, Funny)

    by limekiller4 ( 451497 ) on Monday December 09, 2002 @11:21PM (#4850609) Homepage
    From the article [theage.com.au]:
    "The landmark judgment means material published on the internet is deemed to have been published in the place it is viewed online, not the country of origin."

    I don't know what the legal system is like in Australia but in the states you can generally sue anyone for anything you damn well like, regardless of its merits.

    While I doubt our courts will act in a reciprocal manner just to make a point, the tacit argument the Australian government is making is that they can apply our laws to American entities. If this is taken to its logical conclusion, and Americans are allowed to apply American legal standards to Australians, this might forever be known as the Pandora's Box Judgement.
  • This is problematic (Score:3, Interesting)

    by dh003i ( 203189 ) <`dh003i' `at' `gmail.com'> on Tuesday December 10, 2002 @12:33AM (#4851225) Homepage Journal
    People should be accountable to the laws of the nation they reside in, and only those laws. They should only have to know one set of laws: those for the country they reside in. It is outrageous that a US citizen could be sued for Libel in Australia under the much more restrictive Australian laws, which would be unconstitutional in the US.

    If someone in Australia thinks they were defamed by someone in the US, then they should have to sue the person in US court, if they have standing. I personally think that foreigners in other nations shouldn't be able to use the civil courts in this nation.

    The principal here is very simple: that a person should only have to be accountable to the laws of the nation (s)he's residing in. Anything else is inherently problematic, as it will put people in catch-22's, where a certain action may be mandated by the laws of one nation, but prohibited by those of another. This is why I think that the US should withdraw from most international agreements, in that they violate the US Constitution and the rights of US citizens. International treaties, for example, could allow a US citizen to be trialed in China for publishing an opinion critical of the Chinese government.

    Another inherent problem with US citizens being subject to the (say) defamation laws of Australia that it is analagous to taxation without representation. In this case, laws are being imposed on US citizens without those citizens being represented in the creation of those laws. It is outrageous.

    Every nation has enough bad worthless laws of its own. Nation's don't need the bad laws of other nations in addition to the bad laws of their own. Each nation's citizens run into enough problems with their own nations bad laws, let alone those of other nations.
  • especially since he's a white supremacist child molester who beats his neighbors dog and spits on old ladies' social security checks while wanking off in the food at the local soup kitchen watching beastiality porn.

    This is Bill Gates we're talking about, right?

  • by rollingcalf ( 605357 ) on Tuesday December 10, 2002 @01:38AM (#4851691)
    They tried to say that they should not treat the Internet differently than other published media, but their decision singled out the Internet for special treatment.

    If the libelous statements were made in a US-based newspaper, of which some copies were physically mailed to Australia, Australians would not have been able to sue the US publisher. But when the statements are on a US-based web site, which is "mailed" to Australia via the Internet, Australians can sue.
  • The judgement can be found at www.austlii.edu.au/au/cases/cth/high_ct/2002/56.ht ml
  • At paragraphs 51-52 of the leading judgement [austlii.edu.au], there is a strong suggestion that even though Victorian law will be applied, the defences available in New York will influence the effect of Victorian law in the circumstances of the case. This is something that Justice Gaudron repeatedly suggested in the hearing (she delivered a separate judgement that I haven't gotten to reading yet, but the fact that the lead judgement includes this suggestion is promising since it means the position won't disappear with her impending retirement).

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