Does Defamation Know Borders? 113
spam-it-to-me-baby writes: "Interesting court case going on down under at the moment involving a prominent Australian businessman who claims he was defamed by a Dow Jones article published on a web server in the United States. Prosecution is digging up an obscure 1848 judgement over what constitutes an act of publication to ensure the case is heard here rather than in the U.S. Dow's claiming the story was for a U.S. readership. The case continues ..." And since laws on what you can legally say aloud or in print vary greatly from country to country, please make sure your words are only available in pre-screened jurisdictions.
Re:More litigious countries (Score:1)
Re:Missing the point? (Score:2)
As a point of interest, in the UK, truth is always a complete defence against any libel action. If a publisher can prove that what they said (wrote, etc.) was truthful, there is no question of libel. However, it is a risky option - if they fail to demonstrate that they were correct, damages are likely to be bigger.
I understand that fair comment is the more usual defence. I believe this means that provided what you wrote was a reasonable conclusion from your available information (and that you had made a reasonble attempt at research), then one is safe from a libel case. Of course, that statement has some rather important qualifiers, which contain the expense of libel cases.
I think that the real nastiness comes in when things are "alleged" in articles. Suppose A says that B has been convicted of crime Y. If B has, then there is no libel, and if B hasn't, that's relatively easy to prove.
Next, suppose that A alleges that B has committed crime Y many times, but is such a criminal mastermind that they have never been caught. How does one sort that one out? Under the broadest definition of free speech, B would have to prove that they'd never committed Y in order to win. However, there is this little principle called presumption of innocence (still around, despite the best efforts of various Home Secretaries, but that's another matter), so why should B be required to demonstrate that they are not a criminal? That then goes against presumption of innocence for A. It's a bit of a mess.
I'm not sure as to how that one is resolved in the UK, or anywhere else. And it might be different for civil and criminal offences. Libel, being a civil offence, is certainly subject to a different standard of proof from criminal cases.
Again, I don't know about the rest of the world, but the libel system in the UK is in need of a bit of an overhaul. It is extremely expensive to bring a libel action, but the damages can be ridiculously high (I understand that you can be entitled to many times more compensation if a newspaper libels you, than if the editor runs you down in their car, and loses you a leg). That is a cycle which can feed on itself. Some method (I'm unsure as to what would work) of limiting both costs and damages would be useful.
get it right! (Score:4)
Not that simple (Score:2)
Secondly, there is still the issue of expense. If a particular virulent group of spammers [badtux.org] in Britain are publishing defamatory nonsense about me, sure, I can sue them here in a Phoenix AZ court of law or there in Britain (I have correspondents in both country who would testify to publication in both places). But if I sued them here in Phoenix I'd end up having to sue them in a British court to enforce the judgement, and if I sued them there in Britain, I'd have to spend a bunch of time in London. Sorry, I don't like the dreary isles that much.
Saying that a web site can only be sued in the country where it is published gives free rein for liars in one country to defame people in other countries all they want, knowing that the people in those other countries aren't going to have the resources to travel to some dreary little island in the North Atlantic just to sue some moronic spammers. The current situation is not ideal -- it basically means that if I sue under my own laws, I end up having to sue twice to enforce a judgement -- but the alternative is no better.
-E
HBO's disclaimer (Score:3)
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Check the stories before posting (Score:5)
Secondly, this is a civil case - there is no 'prosecution', just a plaintiff (a claimant in English new-lawyer speak) and a defendant.
Re:published in US, but defamed in Oz (Score:2)
Jurisdiction may be the whole case. (Score:4)
Specifically in the commonwealth (of which Australia is still mostly a part) defamation means simply publishing lies about me. That means if you write an article claiming I had a 12" dick which would stay up for hours at a time I could sue. In the US you would have to also make a negative inaccurate comment with malicious intent. In other words an American judge would tell me to laugh off the 12"
Also in the US the comment must be not only false and damaging but also believable. In other words you would need to say I have a 5" dick and am impotent. I would then need to show that this has something to do with our disagreement over some other matter, or your hatred of me.
In other words, depending on the facts in the case this herring might be all you need to tell the outcome. By contrast if the newspaper in question was in new Zealand this hearing might not take place since either side would be content to fight on the other guy's turf.
Worse yet Commonwealth courts tend to award costs as a separate payment from damages. I.e. If you beat me I pay your lawyer and you travel costs too. It may be called unfair but it dose cut down on the number of merit lesscases brought before our courts.
Missing the point? (Score:1)
If you print lies it shouldn't be about who you want to read it.
For example: Racist papers that are only intended for KKK members. Should these be allowed to write anything they like and can come up with just as long as they only let rasists read?
Does this only bother me?
// yendor
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It could be coffe.... or it could just be some warm brown liquid containing lots of caffeen.
Re:Missing the point? (Score:1)
Windows sucks and bill gates is trying to kill off all other OS'es.
This should be enough by the defenition, although it's dificult to show loss of earnings.
Defamation have to have a couple of exceptions when it comes to public figures...
I have one word in plural: politicians.
// yendor
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It could be coffe.... or it could just be some warm brown liquid containing lots of caffeen.
Re:Missing the point? (Score:1)
> dealings." (mycareer.com.au) This is why often in the news people are "alleged" to have
> commited a crime.
Then we are back at the begining.
It's slander since there's no proven facts to base the accusations on.
When you use "alleged" it should still fall into lible.
Do the libel/slander only cover people and businesses or do it extend to products?
// yendor
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It could be coffe.... or it could just be some warm brown liquid containing lots of caffeen.
Re:Stupid First amendment (Score:1)
Possibilities (not exhaustive):
Law suits involving movie stars are more newsworthy.
Businessmen are more likely to negociate an out of court settlement to avoid publicity.
Articles about movie stars are more likely to be read by brainless members of the public who take anything they read at face value.
Movie stars careers are more sensitive to the opinion of brainless members of the public.
Movie stars have more money to spend on lawsuits, unfounded or not.
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Duchess of York (Score:2)
Then again, is that really being reduced? *ponder*
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Re:I hope this falls through... (Score:2)
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Re:Missing the point? (Score:2)
Much as I hate racism, if you want freedom of speech, you must allow racists to express their views. To that extent, saying/writing "I hate blacks" is allowed under freedom of speech. Actually discriminating against blacks is not allowed under various equal opportunities laws.
BTW, feel free to s/blacks/$ETHNIC_GROUP_OF_CHOICE/g; the meaning is the same.
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Re:I hope this falls through... (Score:2)
If there are punitave penalties based on this charge and the defendant doesn't pay up, (s)he's guilty of contempt of court which is a criminal offence.
It's not unknown for the directors of a company to be held liable for the sins of the company. Quite apart from this, there's a precendent potentially being set where a real person could be sued by a foreign national and then they are barred from the country.
In any event, a company is often legally equivalent to a person; any criminal charge against it would prevent it performing any business in Australia, which would be a disaster for a multinational (or multinational-wannabe) company. That said, the company would probably spin off a subsiduary to do trade in the relevant country.
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Re:I hope this falls through... (Score:2)
I think Douglas Adams (May he rest in peace. No, how about 'may he suddenly rise from dead and get back to writing those insanely hilarious books again!') said it best [douglasadams.com]:
"There we British sat, poor grey sodden creatures, huddling under our grey northern sky that seeped like a rancid dish cloth, busy sending those we wished to punish most severely to sit in bright sunlight on the coast of the Tasman sea at the southern tip of the Great Barrier Reef and maybe do some surfing too. No wonder the Australians have a particular kind of smile that they reserve exclusively for use on the British."
Re:Issues (Score:1)
Are you suggesting that pronouns can be overloaded gender-specific/gender-neutral, whereas nouns such as "actor" cannot?
Please explain yourself.
More on some of the key players (Score:5)
Additionally, he has written several highly-successful books on human rights laws, wrote a play (later turned into a BBC mini-series, IIRC) about one of the most famous obscenity trials he was involved in, writes occasionally for British and Australian newspapers, and hosted a fondly-remembered TV show that involved a large group discussing hypothetical scenarios about legal, moral and social issues.
Joeseph Gutnick, the plaintiff, is also a fascinating character. By profession, he is actually an orthodox rabbi. He has made and lost several fortunes out of Australian mining companies, and there have been persistent allegations that his fortunes have been gained by less than legal methods.
He has spent many millions of dollars supporting Likud and other right-wing parties in Israel, and has funded the expansion of some of the Jewish settlements that so enrage the Palestinians.
To top it all off, for the past three years he has been the president of the Melbourne (Aussie Rules) Football Club, which by Australian standards is the football club of a conservative, mainly WASPish, Melbourne "establishment". Whilst highly popular with the rank-and-file members of the club after personally funding the club with millions of dollars from his own pocket (very uncommon in Australian Rules football), and thus saving it from a merger with another club, he has managed to fall out dramatically with the members of the club's board, and resigned implying that the board was out to get him for his (domestic) political views and even that the board was anti-Semitic.
It is also worth noting that "Diamond" Joe Gutnick's financial situation is apparently very tight at the moment, so he is under pressure in a variety of ways.
So, all in all, there are some intriguing characters involved in this dispute, as well as the wider issues of defamation on the Internet.
Go you big red fire engine!
Re:Missing the point? (Score:2)
After observing the McLibel case off and on (and from a safe distance, here on the other side of the pond), I can tell you that in order to sue someone in the US for slander or libel, the burden is on the plaintiff to prove two things. First, the plaintiff must prove that the allegations are false. Second, the plaintiff must prove that the defendant *knew* (or should have known, given a reasonable expenditure of effort) that the allegations were false, and hence made them maliciously. In the UK, the system appears to be the complete opposite. There, the defense available appears to be the truth of the allegations - the burden is on the defendant to *prove* that what they alleged is, in fact, true.
In other words, in the US, if you take some steps to investigate what you are saying, and you can reasonably believe that what you are saying is true, you're okay as far as civil law is concerned. If I allege that you are a wife-beater after being told so by your brother, your employer, and your priest, in the US, I'm probably okay, even if it later turns out to be untrue. In the UK, the burden is on me, the defendant (when you sue me), to *prove* that, on at least one occasion, you did actually beat your wife.
The moral? Given the choice, try to get sued for libel or slander in the US rather than the UK - at least that way, the burden of proof is on the person/entity suing you, rather than you. I'm guessing (but I don't know and would appreciate knowledgable comments from Aussies) that the Australian method of dealing with slander and libel is more akin the the British way than the American way. Hence, it should be no surprise that DJ wants to be tried in a US court.
The funny thing about McLibel is, it never would have gotten anywhere in the states. But in the UK, McDonald's, a large multinational corporation, was essentially able to try to use the libel laws as a way of harrassing and silencing its critics. Unfortunately for them, and fortunately for advocates of *anything* in the UK, it turned into a PR disaster for them. I don't much agree with what was alleged about McD's by those folks, but, dammit, people ought to have the right to say things that they truly believe in. If they're wrong, debate them, dammit - don't try to sledgehammer them into shutting up...
Re:Missing the point? (Score:1)
This isn't a pissing contest, we are all at risk (Score:2)
Not any other nation (the Netherlands and others have much more freedom, both of speech and how one leads one's private life in general, and there are probably other examples as well, particularly since the enactment of the DMCA), but most other nations, which I think is probably still true.
Certainly in this example, the allowance for speech in the United States exceeds that of countries with British style rules of libel which basically amount to "you aren't allowed to say anything not nice about someone publicly" with a few exceptions thrown in to obfuscate that fact enough that people do not rebel outright. If the lowest common denominator of freedom becomes the internet norm through this kind of back door, international legal thuggary, then each of our freedoms becomes defined by the most oppressive regime on the planet, and none of us, in the US, in Europe, or anywhere else, will have any significant freedom at all. Would you like to see Bush and the American Religious Right defining obscenity on the internet in the Netherlands? That is the danger the previous poster is warning about
Yes, we'll be free to do what we're told or suffer the consiquences (and you would be surprised at how many Americans of religiously right leanings have used that very phrase to argue that their onerous restrictions don't infringe on the freedoms of others). However, I would argue that the freedom to do as one is told or [insert harsh penalty up to and including death here] is not freedom at all, and any definition which would say otherwise must also then imply that life under Stalin and Pol Pot was equally "free."
It is this danger that the poster correctly warns against
Re:Or in other words.... (Score:1)
Of course, now you have the problem that if it's cheaper to pay the occasional settlement than to force its workers to wear hairnets, there's no impetus for McBurgerJoint's to change their operations. Not that the U.S. system is that great either, it's just different. It seems to me that punitive damages should actually be higher in some cases, or at least scaled to the size of the company - McDonald's probably doesn't even notice paying out millions in a settlement.
Caution: contents may be quarrelsome and meticulous!
Re:I'm not really sure about the freedom in the US (Score:1)
Not that I necessarily support the FCC on this, but I have to point out that this isn't a new policy of the Bush administration. I used to listen to a morning radio show that practically had a direct debit to the FCC for their weekly fines. At least so far the FCC's actions are no worse than they were under the previous administration. And hey, you never know - Joe Liebermann could have been worse.
Caution: contents may be quarrelsome and meticulous!
Re:Missing the point? (Score:1)
They aren't really mutually exclusive, though - just because someone writes a scurrilious pamphlet in which they claim that my ethnic group all have tails and pick nits all day long, doesn't deny me my freedom, my rights, or my dignity. Dignity comes from within, and my freedom and rights (in the practical sense) are limited to what my society as a whole will permit, rather than what the most narrow-minded bigots would prefer.
Sorry, but freedom of speech is more important than someone's hurt feelings. If you don't like what someone says about you, the solution is more speech - publish exactly why they're wrong about you, and then go out and prove it.
If you don't like the way someone thinks, then please go stick your head in a pig :)
Caution: contents may be quarrelsome and meticulous!
Re:Missing the point? (Score:1)
...but on the other hand, I don't see how publishing or saying something which isn't true could be actionable, even if it does damage your character or reputation. The truth hurts, deal with it.
Caution: contents may be quarrelsome and meticulous!
Re:Please... (Score:1)
What are the consequences of this? Probably means we Australians will be blocked from American News Media sites in the future, as we are currently blocked from purchasing from some of the ebay sites.</TT>
Historical interest ... (Score:2)
Just to give a historical perspective, around 1550 the stationers (shopkeepers repsonsible for arranging and distributing customer books) received a royal charter for exclusive rights to print editions of registered works. However, the Crown's main intention was a quid-pro-quo where they required the stationers to censor works before printing. Both the Church and State feared proliferation of blasphemous or seditios works with the widespread availability of printing. This monopoly (that no Man shall print any Book or Ballard, unless he be authorised thereunto by the King and Queen's Majesties Licence) led to a century of acts of censorship enforced through the willing complicity of the Stationers.
Historically the only thing authors/playwrights owned was the physical manuscript and originally copyright derived from the exclusive rights associated with producing a fair copy of this manuscript in the printer's possession. Since the traditional stationers and booksellers had a monpoly in printing they kept publishing rights rather than devolving back to author after a period to cover print-runs. However, the licensing act of 1662 for "preventing Abuses in Printing Seditious, Treasonable and Unlicensed Books and Pamphlets and for Regulating of Printing and Printing Presses" lapsed by the end of that century, dissolving the implicit contract between state and book industry. The Statute of Anne (~1710) though essentially a book-sellers bill, was the first legal document where authors got even a brief mention, but at least it recognsed authors as the original holders of rights. Progressively the concept that authors "owned" the original ideas in their heads and words were just descriptive clothing became widely accepted. This was a far cry from medieval era where divine inspiration was considered an expressive gift of god and thus and not controlled by an individual. However, the shift towards private property of published works also implied an obligation of truthfulness or more strictly speaking, authority. In fact, modern book contracts may have clauses asking the author to affirm that the written (non-fiction) text is "truthful". Of course the concept of "truth" can be rather debatable, e.g. with Samuel Johnson in compiling a "definitive" dictionary of English words.
However, though it is easy to "borrow" the gravitas of authority by quoting snippets from famous people and classics. Rearrangement and lack of context cues can quite often prove misleading. Libel, defamation, etc are direct consequences as with the cost of physically printing goes down, the effort is checking and verification goes up. If you look at top-notch journals (e.g. medical) the effort of cross-checking and insistance of independent peer review often meas it can be 2 or more years fore a submitted article gets finally published. Contrast this with the tabloid press and CNN and you can predict the disconnects, especially when you bring such written fluff into one of the most stringent semantic standards and investigatory spotlight of the law. Suffice to say that if truth in advertising and other academic standards (cough*bnchcrafting*cough) were imposed on the popular press, the volume of discourse would probably be significantly reduced. It is a rather tricky situation, when you have so many stages in the production process to ascertain precisely who deliberately (or otherwise) originated a piece of opinion. This may have a rather interesting analogy in GPL works as since you are required to put your name down to affirm copyright, people can trace you back if necessary (cough*sapam*cough). Contrast this with popular press which at times ressemble a gigantic Chinese whisper. Given that a lot of modern crap
Enough blabbing for now
LL
Re:Currently: no (Score:2)
If France sues the French subsidiary of Yahoo in an unreasonable way, Yahoo will simply pack up and leave. Nobody will fill their shoes. France either stops this behaviour, or ends up without an internet connection (or, a government sanctioned one at any rate). Either way, the world doesn't lose anything, because, who really wanted to talk to a bunch of arrogant censors anyways?
Ditto with Australia. If their courts allow them to punish a foreign company (by demanding payments to prevent seizure of local assets, presumably) then foreign companies will leave.
There's a reason nobody except oil companies does business in countries like Iraq and Afghanistan.
Re:Please... (Score:2)
I just can't wait until someone sues for access to content that has been blocked for their country, precisely because the provider had been sued for providing it...
Re:Currently: no (Score:2)
And the parent company can only be sued in some cases.
If Yahoo-France does X, and gets sued, then they pack up and leave, France has a case against Yahoo-Parent. But if Yahoo-France paid for X, and left, then Yahoo-Parent does Y, which comes into France on the Internet, France is without any recourse.
Or rather, it comes down to cases like this Aussie suing a US company for actions in the US, baseless and in the end, destined to lose.
I'm not really sure about the freedom in the US (Score:2)
It is the new Bush-administration that tries to clean up obscenity and indecency.
This is no troll, the popular opinion that "the US has laws ensuring more freedom than any other nation", is not always correct.
Here is my source: Reuters [reuters.com].
Giant Boot (Score:2)
Don't forget disparaging the boot is a bootable offense!
Re:Missing the point? (Score:2)
As much as I hate to say it... yes. Freedom of Speech should be blind.
Doesn't make it any better though. *sigh*.
Simon
Re:get it right! (Score:1)
Re:Other jurisdictions don't matter (Score:2)
smoke marijuana in the Netherlands (where it's legal) and then return
to the US (where it's illegal), I wouldn't be arrested.
I'm pretty sure that if I were to smoke marijuana in the US (where it's illegal) in a private place without any police officers or narcs, I wouldn't be arrested.
It's not because they couldn't arrest you, it's because they wouldn't know that you commited a crime, would have no way of proving it and in most juristictions really can't be bothered busting people for merely smoking in private (as opposed to growing or possessing large quantities).
But... (Score:1)
Re:Sheesh (Score:1)
Are you really suggesting that I should live down to some other jurisdictions statutes which imply that fair and accurate comment which MAY injure someone's reputation is actionable? No thanks, I can't live by your standards, which imply very little except a stifling of free speech (of which Canada actually has very little).
Re:Hypothetically... (Score:1)
yes. Ask jon johansen, who put up DeCSS in Norway but was sued in the US.
//rdj
Another case to watch (Score:1)
http://www.wired.com/news/politics/0,1283,43583,0
Yahoo! Anyone? (Score:2)
Second, this case would seem to have repercussions relevant to the French Yahoo! case...
Re:Check the stories before posting (Score:2)
Re:I hope this falls through... (Score:1)
Actually, I believe it's explained by their colonial roots.
They are trying desparately to clean up their reputation.
Re:I hope this falls through... (Score:1)
I had heard a brief report on Australian history on National Public Radio awhile back where an Australian was saying that Australians don't much like to talk about their roots and that it's referred to as "the stain".
Did a quick web search and I just found this [pbs.org], which may be related to the Radio show I'd heard (this is PBS, which is TV, not NPR, but they often share content).
I'm sorry if I drew too much of a conclusion from my very limited understanding of a complex issue. Didn't mean to offend.
Crowded Theaters (Score:1)
Re:I hope this falls through... (Score:1)
The US already implements laws, particularly relating to third country trade with Cuba, which result in the conviction of non-US nationals in US courts for acts illegal under US law only and which were carried out wholly outside the US.
Dan's point therefore is a little late...
Re:I hope this falls through... (Score:1)
Re:Other jurisdictions don't matter (Score:2)
Yes. Lets take another example. Suppose I'm living in a country which does not have laws against murder and I hire a hitman to kill you. I'm entirely safe from prosecution, because I haven't broken any laws in the country where I live.
If, however, I decided to catch a plane to the US, I could (and probably would) be arrested as soon as I stepped off the plane, because the murder I ordered was illegal in the US, even if it wasn't in the jurisdiction where I committed the act.
The parallel is exact; the web server was in the US, I was in my fictitious murder-is-legal nation; an act was committed (libel) which was illegal in Australia, an act was committed (murder, or perhaps conspiracy to murder) which was illegal in the US; Dow Jones established offices in Australia, I stepped off a plane into US-controlled territory.
Re:What if China hauled WSJ into court? (Score:2)
Well, if that happened, then the WSJ would simply pull their staff out of China. Simple solution really, if the Chinese government won't allow something in China, don't take it into China.
I fail to see what the problem is.
Other jurisdictions don't matter (Score:3)
As long as you do not conduct business in France/Australia/US/[insert name of country which is stepping close to the bounds of extraterritoriality here], this isn't a problem. On the other hand, it is always true that if you are conducting business in a nation you should know and abide by the laws of that nation.
For example, some nations have laws restricting ownership by private citizens of more than a given quantity of gold. Some nations do not. If you're carrying around fifty pounds of gold, you'd better stay out of countries where it is illegal... but as long as you stay out of said countries, you're entirely safe, because even if they attempted to extradite you they would fail (under most, if not all, extradition treaties, you cannot be extradited from a country if you have not committed an act which would have been criminal in that country).
Yahoo conducts business in France. Yahoo was breaking French laws. Bad Things happen to Yahoo. Dow Jones conducts business in Autralia (it may not be their primary place of business, but they conduct business there all the same). Dow Jones is accused of breaking Australian laws. Dow Jones has to face trial in Australia. I, on the other hand, reside in Canada, and will likely never go to Australia in my entire life, so I can completely ignore Australian libel/porn/encryption/etc laws.
I really fail to see what the big deal is here.
More litigious countries (Score:2)
OK, an extreme example, but as we know laws are frequently twisted by people with the capital to pursue such cases. Surely if this goes ahead it sets a precedent for people in other countries to try US citizens outside the US. I'm guessing the Chinese government will be paying attention.
Re:Does this make me guilty of defamation? (Score:1)
But Bush hasn't done anything to put him into the same category as Nixon yet. Then again, maybe by the time he dies...
Re:get it right! (Score:1)
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Re:Or in other words.... (Score:1)
This is a much greater deterent then any fine or form of punitive damages.
Re:Or in other words.... (Score:2)
That's why we don't see these stupid million dollar payouts for finding a hair in a burger.
Judges also don't look to fondly on people who waste the courts time with frivolous actions. What we therefor get is only people with a legitimate gripe taking court action.
Or in other words.... (Score:3)
What I do find a pity is that it takes test cases liek this to clear up issues like this and often it doesnt go the way it should. Napster is the prime example. I dont believe a person rpoviding a transportmedium should be held accountible for the actions of others. It's a bit like sueing the Postal Service because you post photocopies of copyright works to 100's of people. Who committed the crime, you or Napster?
Geoffry Robertson has done this before in other high profile cases, dragging up some interesting precident and presenting it to the court. Quite often it wins as he quite clearly does good research. In Australia law, Britsh Law does count as a precident. So does USA law too, but to a lesser degree. It's not binding of course, but precidence is an important factor when the law (be it Common or ordained in Act's of Parliment) is unclear.
Re:I hope this falls through... (Score:1)
Whahahaha!!! Right. Ask PRZ [mit.edu] about freedom in the US. But sure, you have a point, there aren't too many countries in the world that allow you to have murder weapons in your house so that you can shoot your neighbor if you want to. Or to let your children shoot themselves for that matter.
Come on, get a life! Try to look a little further than your own borders. Most civilised countries don't even have the death penalty anymore, but the US gives their judges the freedom to kill.
Does this make me guilty of defamation? (Score:2)
Bush thought that sounded pretty good, so the devil opened the first room. In it was Richard Nixon and a large pool of water. He kept diving in and surfacing empty handed. Over and over and over. Such was his fate in hell. No, George said. I don't think so. I'm not a good swimmer and I don't think I could do that all day long.
The devil led him to the next room. In it was Newt Gingrich with a sledgehammer and a room full of rocks. All he did was swing that hammer, time after time after time. No, I've got this problem with my shoulder. I would be in constant agony if all I could do was break rocks all day, commented George.
The devil opened a third door. In it, Bush saw Bill Clinton, lying on the floor with his arms staked over his head, and his legs staked in a spread eagle pose. Bent over him was Monica Lewinsky, doing what she does best. Bush took this in disbelief and finally said, Yeah, I can handle this.
The devil smiled and said OK, Monica, you're free to go.
Mea Culpa Re:Stupid First amendment (Score:2)
More seriously, I still think the US system is superior. (OK, I'm an American, so maybe it's just what I'm used to.) By forcing proof onto the defendant, you definitely chill speech. The thrust of, say, the First Amendment is that more and open information flow is healthy for a democracy. From the viewpoint of American political theory, it is much safer to err on the side of too much published, rather than too little.
Your mileage may vary, of course, depending on your cultural norms. But considering the tremendous advantage possessed by the wealthy and the powerful, and their overriding interest in quashing uncomfortable truths, I'll accept the occasional mis-truth rather than see even one truth snuffed out.
Re:Stupid First amendment (Score:5)
Blockquoth the poster:
First, as an American, I view it thus: We don't have a "law giving" me freedom of speech. I have that as a fundamental and inalienable right, just as the poster does and indeed all people do. In the US, we have laws (esp. the First Amendment) that helps safeguard that right.Second, since it is a fundamental inalienable right of all humankind, we don't say it gives us the right to say anything to anyone. It gives anyone these rights; again, they are merely better protected in the US.
Third, as has been pointed out, the First Amendment is not a total shield. Even in the US we have libel suits and slander suits. (I'm not sure we have defamation suits, per se.) Such speech, the courts have ruled, is not protected by the First Amendment. But US laws on slander and libel are generally recognized to favor the defendant, primarily because the litigant must show that the statements are untrue. Other nations (at least, the UK and so, perhaps, Autralia) have no such requirement.
Let's look at that more closely, shall we? US laws says, you can't make up awful statements about someone, publish it, ruin their lives, and get away with it. UK law says, you can't discover the truth publish it, ruin their lives, and get away with it. As far as I'm concerned, the US gets the points for this one. If you've committed some heinous act, then you're the one who's ruined your life. It's not my fault just because I make it known. If you don't want to be painted with the brush, don't do the act.
So the issue isn't quite First Amendment after all. It's the issue of venue: where will the burden of proof lie? And despite what the poster said, that is a statement about the merits of the case. If the standards for defamation differ, then of course where the trial is held will help determine if defamation occured.
Re:Currently: no (Score:1)
Re:Other jurisdictions don't matter (Score:1)
This is true only as long as your web pages can't be viewed there either. Otherwise, you can commit torts there and be sued there.
Currently: no (Score:2)
Don't think that it would not be possible the other way round, i.e. an Oz publisher sued in the US: The problem here is with international private law, especially in the context of torts and the WWW.
The international private laws of most countries (yes, international private law is actually national law, which says which cases can be brought to national courts any the law of which country is to be used), tend to be very inclusive, especially wrt torts: Usually, you can be sued wherever any damage occurs.
Normally, this does make very sense: As a victim, you don't want to sue someone abroad when the damage has occured here: This normally includes cases such as car accidents with foreigners or your foreign neighbour shooting your sheep. ;-)
However, the WWW is different: Being a broadcast medium, the damage caused by defamation, IP infringment, etc., can occur anywhere. So you can also be sued anywhere.
This result seems very stupid, of course: You can be sued in countries you've never known that existed. (It even gets worse with international criminal law, which is similarily inclusive: Go to a country you've never been there before and get arrested for something you've done 10 years before in a country where it was completly legal.)
What we really need is a international treaty that limits the jurisdiction to a managable set of countries: The country where the person comitting the tort has actually acted, the countries where the servers she controls are located and, maybe, for some torts such as libel directed at a single person, the country where this person lives (this is problematic, however, maybe you should only have jurisdiction there but not use the law of that country).
Re:Please... (Score:1)
In the case of an American magazine published solely in the US, he got one of his UK employees to take out a subscription and then claimed the publishers had "published in the UK".
His final flurry of writs were designed to stop the press inferring that he had systematically raided his companies' pension funds to prop up his failing businesses. Shortly thereafter, he dropped off his provate yacht and drowned; after that it was revealed that most of his companies' pension funds had disappeared.
There's a moral in there somewhere, bit I'll leave that for others to find.
Re:Missing the point? (Score:1)
Also, the current case is purely to determine where the defamation case will be heard. More details can be found in the Sydney Morning Herald [smh.com.au].
Re:I hope this falls through... (Score:1)
There sure are a lot of clueless people posting comments to this article.
Re:I hope this falls through... (Score:2)
Re:I hope this falls through... (Score:1)
Petty theives were sent to Australia. The embezzlers, murderers, and rapists were imprisoned in England.
You're a troll, I know, but I wanted to make the point.
Re:I hope this falls through... (Score:1)
Troll Alert! Beep Beep Beep!
This is a troll. Nothing to see. Please move on.
Re:Missing the point? (Score:1)
Freedom of speech is article 19 of the declaration of human rights [un.org]. IHMO it should not be blind to the first eighteen articles, and especially not to the first one: All human beings are born free and equal in dignity and rights.
Racists usally forget about that one while claiming freedom of speech for themselfs.
BTW: DeCSS does not violate a human right.
Re:But... (Score:2)
I somehow think this would not fly. I am reminded of the French law suite vs Yahoo regarding Nazi materials.
But that was France where they are a bit daffy anyhow.
Check out the Vinny the Vampire [eplugz.com] comic strip
Hague Convention to turn the net off and more! (Score:2)
The "Hague Convention" aims to make this kind of situation the norm. Signing countries agree to enforce foreign judgements. This is law made for the benefit of lawyers and lawyers only.
Free speech? Let's hear what Afghanistan has to say about that. Better start shutting down those servers.
Reverse engineering allowed where you live? Not in the US. Prepare to go to jail.
Software patents are not threatening open source development in your country? Guess what, US patent law now reaches out to you, too.
This is serious. More information is here:l [cptech.org]
http://www.cptech.org/ecom/jurisdiction/hague.htm
Re:I hope this falls through... (Score:4)
http://www.cptech.org/ecom/jurisdiction/hague.htm
Re:Other jurisdictions don't matter (Score:2)
Is it exact? I'm not a lawyer, but I'm pretty sure that if I were to smoke marijuana in the Netherlands (where it's legal) and then return to the US (where it's illegal), I wouldn't be arrested.
That being said, libel seems to fall somewhere in-between murder and recreational drug use as far as how severe a crime it is. Also, I suspect there'd have to be some compelling reason for the arresting country to get involved -- if I were to murder someone with absolutely no ties to the Australia and then visited the country, I'm not sure they'd have much of a reason to arrest me.
So while I don't disagree that there may be some reasoning behind the argument, trying to draw a parallel to murder is utter bullshit.
Re:Missing the point? (Score:2)
This is the same declaration that claims paid holidays are a human right (article 24). Not exactly a cogent philosophical tract.
Ill-defined words such as "free" and "equal" are easy to toss around to restrict some select group's expression. Seems the U.N. is more interested in persuing a political adgenda than defining a metaphysical framework.
Please... (Score:1)
Re:But... (Score:2)
Re:More litigious countries (Score:1)
Coming to Gutnick - since I had the "pleasure" to see Gutnick in action I can only say so much: Even if Gutnick isnt legally guilty of some misdoings he is a very sharp operator who is walking a fine line. All he can achieve with this court case is to get his point of view across in Aussieland - and this all what counts to him.
Re:Missing the point? (Score:1)
Hypothetically... (Score:1)
If I were to set up a website, hosted in Australia, that slandered an American company, should I be sued in the US or Australia?
What if the company didn't trade in Australia?
...or if I were to write some software which decrypted audio-visual content in a way that was illegal in the US but legal in Australia (alas this is not the case) and post that on my website? Would I be liable to prosecution under US law?
Re:Please... (Score:1)
Re:I hope this falls through... (Score:1)
Except that quite rightly, the Helms-Burton act caused international outrage when it was implemented, and as far as I know has never been used. In fact, it backfired in that it caused Canada to increase ties with Cuba with regards to trade and diplomacy.
Such laws are merely another sign of the folly of big government.
I hope this falls through... (Score:4)
... because it would be an outrageous blow for both freedom and the ability of a nation to determine its own laws if this man suceeds in his suit against Dow.
If he wins, it basically means that citizens of one country can be held accountable to laws from any country in the world!
It's a precedent that should not be set, because it's a dangerous first step towards a loss of sovereignity.
And since the US has laws ensuring more freedom than any other nation, this means that we, as US citizens, are losing our freedoms through this judicial back door! The Constitution is already at the mercy of our Supreme Court, but this opens up the door for any other nation's courts to strip our people's freedoms away.
This could be a disaster if it goes through.
Joseph Gutnick (Score:2)
This case does not surprise me in the slightest. And I hope Gutnick loses. How can he sue a US company? Wota wanka.
Re:Stupid First amendment (Score:1)
Freedom of speech is not omnipotent. You can't yell "Fire" in a crowded movie theater, you can't openly publish things limited by the FOIA or under National Security, and the 1st Amendment does not protect someone from publishing libelous, slanderous and/or defamatory statements.
The 1st Amendment was written to allow for the open passage of speech, criticism of government without fear of retribution by that government, and other reasons.
And given the number of things said in various business magazines about businessmen around the world, and the relatively few lawsuits that make the news about them, most businessmen seem not to mind, apparently. Movie stars, on the other hand...
Kierthos
Re:Missing the point? (Score:1)
How cost effective is it to go after every last person saying "Windows sucks!"? Not very. And lawyers are expensive.
Also, you have to keep in mind that a lot of civil courts take dim views of frivolous cases. Most civil judges would throw out this kind of case because there is no obvious loss of earnings or damages to M$.
It's the same with most of the stuff that tabloids publish. A great heaping amount of it is potentially libelous, but it's generally not worth the effort for the people being libeled to do anything about it because hardly anyone believes the things they read in there anyway. (Also, there's usually enough of a grain of truth anyway to avoid slander, which most people _will_ take to court...)
And yes, there are public figure clauses in libel law. But they, oddly enough, also have more rights of privacy and protection under some of those laws because they are public figures.
Yes, it's complicated. As far as I can tell, it's that way on purpose.
Kierthos
Re:HBO's disclaimer (Score:1)
Now, it won't stop anyone from sueing, mind you, but it will curtail their chances of winning.
Kierthos
Re:More litigious countries (Score:1)
And since, at least in the U.S., you aren't actually required to be present in a civil case...
Now, during the Gulf War, all kinds of nasty things were said about Saddam by news anchors, politicians, soldiers in the field, etc. They weren't extradited to Iraq for saying those things. Heck, can you even be extradited for a civil crime? I don't think so....
Worst case (and remember, IANAL) is that you would be found guilty under some civil law, and be ordered to pay a fine. Unless you ever planned on going to Iraq, I doubt the UK would make you pay the fine. (Of course, in Iraq, saying nasty things about Mr. Mustache is likely to get you geeked, which would probably stop the UK from sending you over there for "civil" court anyway.)
Kierthos
Re:Missing the point? (Score:1)
Kierthos
Re:Missing the point? (Score:1)
Oddly enough, libel to follow the same pattern... according to Merriam-Webster it's spoken or written defamation, according to Duhaime it's only written...
hrm... definitely got to go look at Black's Law Dictionary again...
How about we chalk this up to too many "User Documents" and not enough verification? (And for all I know the Australian legal definitions and the U.S. ones don't even come close...)
Kierthos
Re:Missing the point? (Score:2)
From this, it really doesn't matter whether it's true or not, it's defamation. Slander, is false defamation, while libel is defamation that must meet other qualifications (that the statement is about a person who is identifiable to one or more persons, and that the statement is distributed to one or more persons other then the injured party, i.e. published).
In other words, slander _must_ be a lie. If it's the truth, it's not slander. However, if it's true, it can still be defamation. It must meet the other above criteria to be libel. (If you say unflattering but true things to someone's face, it's not libel, but if you publish them it may be.)
IANAL, but I got these definitions here [lectlaw.com].
Kierthos
Re:But... (Score:2)
The distinction of weather the material is delivered via sailing ship or optical fibre is not relevent as far as I can tell.
With regard to determining the place of publication and/or intended audience, as far as I know, cases involving websites thatoffer casino gambling, have set the precident in this area. If the website is served from a computer room in Antigua, that is it's location of publication. It's intended audiance is determined by such things as placing a link on the webpage stating that if it is illegal to ganble in your justisdiction, then you are not permitted to proceed.
With this in mind, I suppose all the WSJ needs to do in order to be in complience is to put similar verbage on their site that if you're in austrelia, you are not permitted to proceed further on the website. Granted that on it's face this proposal is rediculous, but it's no less rediculous than citing case law from 1848 in a civil complaint.
--CTH
Re:I hope this falls through... (Score:1)
Uncharted territory (Score:1)
You too can become an International Criminal ! (Score:1)
1) Get an ISP.
2) Post a website with content that's forbidden in another country.
Examples: "Islam sucks!" "Australian businessmen raped my daughter."
[Safety tip: Avoid saying things that are illegal in your own country]
3) Wait for wacky results (court summons from Caracas, excommunication notice, gibberish-spouting gunmen in ski masks shoot up your minivan, etc.)
4) Write to your congressman, urging him/her to oppose that new extradition treaty with Libya.
Have fun!
published in US, but defamed in Oz (Score:2)
Whether this argument holds or not ... is up to the courts to decide.
See the article in the Sydney Morning Herald. [smh.com.au]
Re:Missing the point? (Score:1)
--
Re:Missing the point? (Score:1)
> and equal in dignity and rights.
Unfortunately, many of the subsequent UN "rights" trod all over that. You have the right to a job? You have the right to government social security?
reformat (stupid tags) (Score:2)
Nobody has any "fundamental and inalienable right". All this rights argumentation has already proved itself of being some fairy tale. Everybody can do whatever he wants as long as he is willing to bear the consequences. And even if he is not willing to bear the consequences he can do whatever he wants, he has to bear them anyway.
The only thing you can say is that it has some advantages to treat the people in a fair way, or at least let them believe to be treated fairly.
It has some disadvantages as well. People being treated fair for a long time believe they have the right to be treated fair.
Just some examples:
Re:Missing the point? (Score:2)