Australian High Court To Decide Net Defamation Case 22
natslovR writes: "In a World first for a 'final' court, the defamation case against Dow Jones by an Australia businessman will go before Australia's High Court, allowing it to determine whether defamation laws apply across the Internet irrespective of geography.
The businessman claimed he was defamed by an article that Dow Jones published in a US based online magazine. Australia's High Court will now determine if a lower court erred when it ruled that the article was published in Melbourne, Australia and so defamation proceedings could be brought against Dow Jones under Victoria's strong anti-defamation laws, despite the webserver on which it was 'published' residing in the U.S, the writer residing there too, and the online magazine's primary audience being U.S. based."
You don't seem to get it (Score:2, Interesting)
Europe does not want anything racist on it's wires, doesn't it have jurisdiction over those wires ? Certainly it does. How do you stop people from transmitting racist things ? Simple, you sue them. Is that legal ? Ofcourse because they willingly transmitted illegal stuff over Europe's wires. Are they going to get convicted ? Defineately.
In america you can say "Black people are the dumbest, most stupid assholes I've ever seen", but you cannot say "encryption X works like so
Re:You don't seem to get it (Score:3, Insightful)
Think about it - if this is allowed, where do we draw the line? Is every paper in every country responsible for knowing all countries laws regarding publishing issues? Or do we censor on the lowest common denominator? Should organisations that promote literacy and education for women have removed from the net when the Taliban was in power (I know that they weren't internationally recognized as the government, but you get my point). Should all on-line publications be censored from showing a woman without a head covering because it would offend some Muslim?
At what point does it stop? This case is about WHERE the plaintiff can litigate, not who 'owns' the WWW.
Regards,
-Tammie
BTW: I didn't vote for that bumbling, fumbling idiot.
Re:You don't seem to get it (Score:3, Insightful)
Not only is it not likely that one could say that and continue to enjoy a full set of teeth in most places in America, but there are a few jurisdictions that have made it illegal as well under hate crimes law (one guy in Idaho is facing up to five years in prison for something similar). The whole concept seems to be that we are free to use speech any way we want as long as it isn't causing harm to someone else, which is why slander and libel laws are still on the books despite their apparent conflict with the First Amendment. I don't know if any case involving hate crimes vs. free speech has gone to the Supreme Court yet, however.
Anything you do within the "sovereignty" of a country is governed over by the laws of a country. Since you americans have apparently decided that you fully control the DNS space, and thus the visible part of the internet, you should really not be surprised that antother country does the same
If you think 'us americans' fully control the DNS space, run an alternative. I'd use it. The whole .com, .org, .net concept is outdated and springs out of the concept that the Internet started here. We'd probably be better off if that was scrapped and country codes were mandatory for every address so that whatever legal craziness abounds is mostly tied to a national scale. BTW: This paranoia that all Americans think as one to do things to piss you off is an unhealthy thing.
You might not be aware that the U.S. has recently decided that it has jurisdiction over its wires as well (see http://www.politechbot.com/p-02845.html). Most Internet traffic passes through our country. This may mean that if you are transmitting something between two sites in your own country that is legal there and illegal here and your connection happens to pass through our country (willing or unwilling) you have just committed a crime in the U.S. I don't know if that sounds stupid to you, but it sounds pretty stupid to me. How is Europe's decision any less stupid? Should the channel of distribution matter any more than the two points doing the communicating? What kind of impact could this concept have on satellite or radio transmissions that may bathe an unintended region with illegal content as part of the process of delivering that content to an area where it is perfectly legal?
Re:You don't seem to get it (Score:1)
There's probably more to the story than that. Appellate-level courts have taken a very dim view of "hate crimes" laws that criminalize mere speech. The common standard is that "hate crime" statutes are permissible when there's an actual crime and hate is a motive. Merely being an asshole, however, remains protected by the Constitution.
I'm not overly thrilled with the DMCA either. However, I really don't understand the parent's position. One type of speech arguably could be used to facilitate the commission of a crime. And most if not all US states do have laws against supplying training to people knowing that training will be used for criminal purposes. OTOH, so-called "hate crimes" laws (of the Euro flavor) mostly criminalize speech on the basis of "It makes someone feel bad and tries to assuage our guilt over the Nazis/Fascists/Vichy/et cetera."
At any rate, were I with Dow Jones, I'd quite simply tell the Australian plaintiff where to get off. If Australia's court marshalls (or whoever enforces court orders) want to seize DJ's AU holdings, then maybe we should just claim Eminent Domain on Rupert Murdoch's US holdings and offer him the five bucks that Fox is actually worth.
Clarification; Idaho case link (Score:1)
I'm not clear about which position you don't understand, so I'll try to rehash my thoughts in a different way.
Many seem to feel that free speech in the USA means or should mean that you can say whatever you want. The grandparent to your post has noted that Europe is restricting speech over its wires by prohibiting the transmission of racist content. The poster then makes light of the priorities in America (which are indeed screwed up) because our legislators have seen fit to pass a bill that effectively restricts our speech in regards to certain technical content while racist content is still permitted to exist. The poster's comment also stated that because America runs the DNS system we shouldn't be surprised that other countries want jurisdiction over the Internet.
I don't know whether the poster is upset at our priorities because he/she feels that we should have the same restrictions and laws as Europe (which seems to be a common complaint from Europeans, though I don't know where the poster hails from) or because of the inherent hypocracy of touting free speech and indicting Skylarov with the same mouth. I wanted to address both possibilities, which is probably why my real position sounded conflicted. My position, which I didn't really mention in the post because I only wanted to address the technical side of things, is that hate crime legislation is redundant and unnecessary in the U.S. If someone murders someone else, does the race of the victim really matter in determining the severity of the crime? What about battery? Or repeated harassment? If we think the punishments are too weak in the cases where these crimes cross racial lines, they're too weak when they don't. Hate crime legislation categorizes people in a world where we need to think of each other as equals. It achieves what it is seeking to prevent.
Could hate crime statutes criminalize mere speech? Of course; we've got other laws on the books that do as well. For example, using speech as a mechanism to get someone fired from their job on false pretenses is and should be illegal because it is going from the realm of disseminating ideas and concepts to the realm of actively causing harm to someone in particular (think libel and slander). Both the DMCA and hate crime legislation dance on the line between these two realms. One might say that, however distasteful, a holocaust denial website should be permitted to exist because the creator has a right to speak his mind; that censorship in the past has proven to be a detriment to the sharing of culture and knowledge and that you have to take the bad with the good. On the other hand, someone else would state that such a site is a harassment to a group who have endured misery on a scale most of us can only imagine. My point is that the apparent lack of priorities in the American system is really a symptom of the complexity of resolving the conflict of interest between free speech and anti-racism/pro-corporate agendas (corporations are making more headway against the First Amendment because their lobbyists are better funded). My position is that we need to be a lot more careful about telling people what they can't think and what they can't say because while we're supposedly doing this to bolster freedom (irony, that) it paves the way towards having a naive and unopinionated population that is just as capable of supporting evil as it is of good because it doesn't know any better.
I agree with libel and slander laws, anti-stalking laws, anti-harrassment laws, and the spirit of the DMCA, provided that all would be so carefully worded that there can be no doubt about the intent to harm in the speech or actions of those who violate the laws, but when the legislation is so sloppily constructed as to threaten to ruin the lives of someone who gets careless with his insults (Idaho case, see below) or permit publishers to sidestep our fair use rights with legislation merely intended to protect their works from exploitation it's just wrong.
The First Amendment has been so important to the foundation of our society in the U.S. that we shouldn't start stripping it down now just because we're fat, dumb, and happy and don't think we need to be as free anymore. Many of the problems people have with just thinking for themselves nowadays is because they get information spoonfed from CNN or Fox and think that's the whole story. The flow of information and concepts are being restricted to a couple of chokepoints where everything judged to be unsavory or unnewsworthy is filtered out and no matter where you go you get the same four pieces of news for the day with slightly different spins on them. That's before we even get started with the speech-limiting laws.
I've always viewed the Internet as an excellent way of importing freedom. In my case, I can visit news sites and talk with citizens in foreign countries to find out what the hell is really going on out there. So when each country starts deciding the rules for the rest of us, I get a bit nervous. Yes, that applies to when the U.S. does it every bit as much as it does to when Germany, Australia, or France does it. You mentioned the DMCA, which by the way is largely a codification of international law (WIPO), but I'm even more worried about the potential impact of certain provisions in the USA PATRIOT Act [eff.org] on the rest of the world. International cooperation and a laissez-faire attitude is what helped build the Internet, and I think that the aggregation of unpalatable laws from every country involved in handling its traffic will only serve to tear it down.
I usually cite sources, BTW, but I got lazy in my last post. You can read more about the Idaho case involving Lonny Rae here [go.com]. This is from August of this year, and while I'm sure there will be more to this story it hasn't happened yet. The latest thing I could find on it was a rethoric-packed plea from his lawyer for support in the beginning of September here [kornet.net] saying that it was going to trial in three weeks, but I haven't seen anything about it since. My guess is that media attention to this case will pick up again either when it goes to trial or when a verdict is announced, but I don't think the law has been overturned yet.
Re:Clarification; Idaho case link (Score:1)
I'm not fond of blowing hot and cold either. I don't like the DMCA. I didn't become a cop to protect the MPAA/DVDCCA from having their disks viewed on *bsd boxen.
That being said, I can understand the dichotomy. It's a shaky argument, but it is illegal in many US states to teach people specific skills knowing that those skills will be used for criminal purposes (c.f. your state's terrorist training laws such as CO Revised Statute 18-9-120 and equivalents).
Don't misconstrue me here. I'm not defending the DMCA or the disgrace that has been done to Skylarov, Felten, and others. I'm just saying that there arguably is precedent. My own opinion is that, short of perjury/harassment/menacing/threats and Constitutionally-tested time/place/manner restrictions, speech absolutely should not be criminalized. Public safety and peacekeeping give us enough work to do without also having to enforce good manners.
I wanted to address both possibilities, which is probably why my real position sounded conflicted. My position, which I didn't really mention in the post because I only wanted to address the technical side of things, is that hate crime legislation is redundant and unnecessary in the U.S. If someone murders someone else, does the race of the victim really matter in determining the severity of the crime? What about battery? Or repeated harassment? If we think the punishments are too weak in the cases where these crimes cross racial lines, they're too weak when they don't. Hate crime legislation categorizes people in a world where we need to think of each other as equals. It achieves what it is seeking to prevent.
I'll certainly not argue with you here. I've had perfectly valid harassment, menacing, and criminal mischief cases get clouded by DA's who wanted to also charge Ethnic Intimidation (what we call "hate crimes" here.) I believe that involving race/ethnicity/religion/etc. at best will cloud what should be a clear issue.
Could hate crime statutes criminalize mere speech? Of course; we've got other laws on the books that do as well.
There's a slight disconnect here. My state's Ethnic Intimidation law reads a lot like Idaho's. The only things that it seems to criminalize are things that are already illegal under other statutes-harassment/stalking, assault, menacing, criminal mischief, and so forth. It does expand on them a little, but not much.
I also think that we'd be prudent to consider harassment/stalking laws separately from slander/libel/defamation laws. The former are criminal. The latter usually are not. Criminal libel statutes do still exist in some states, but they tend to get knocked down whenever they're charged.
I usually cite sources, BTW, but I got lazy in my last post. You can read more about the Idaho case involving Lonny Rae here [go.com]. This is from August of this year, and while I'm sure there will be more to this story it hasn't happened yet.
Now that I've read it, it seems slightly more plausible. Even without a hate-crimes law it would arguably be a valid disorderly-conduct case. And since the article included the actual statute, it looks a lot more sound to me.
Re:You don't seem to get it (Score:1)
Europeans leave their country and "visit" places in other countries that have racist content. If the European government has a problem with this, they can take the same approach that the Peoples Republic of China has taken with regards to the Internet (and with regards to actual travel for that manner). Or the approach taken by the former unofficial govenrment of Afghanistan.
By your logic, Canada (with some absurdly strict laws regarding the French language) should be able to fine every single website operator whose every web page does not meet their requirements for the French language. EVERYTHING must be provided in French as well as any other language, and all French text must be AT LEAST the same font size as the non-French text. Remember those folks even have a separate police force whose sole duty is to enforce those language laws.
Why is cnn.com still operating? why haven't the Canadians shut down Slashdot? Could it be that just maybe Canadians are just a wee might more intelligent than the Australians and the Europeans?
International Tribunal (Score:2, Interesting)
Perhaps a court may cause more trouble than it fixes.
Some sort of greater arbiter should analyze such cases. It is the only true possible solution to such dilemmas. The question is: how?
LOL @ those arrogant fools (Score:1)
Re:LOL @ those arrogant fools (Score:2, Informative)
Arrogant perhaps, but not totally fools (Score:2, Interesting)
The real problem, though, comes up should DJ have any significant assets in Oz. Those are definitely at risk, just as the U.S. freezes or takes the local assets of foreign organizations it doesn't like. I suspect an operation like DJ prints an Australian edition, and has local staff for reports on the Aussie stock market(s?), in which case they've definitely got something to lose.
We can only hope the Supreme Court can see what the country, and society, have to lose if they let this stand.
Re:LOL @ those arrogant fools (Score:2, Insightful)
I know this is flamebait, but I'll reply to it anyway.
It's true that an Australian court is limited in the actions it can take against US Citizens and Corporations. As you say, it will be difficult to make a case against an individual count for much more than a piece of international protest, but corporations are always at risk.
But the case needs to be examined not from a perspective of what can be logistically done, but from a perspective of what is ideally right. If a Victorian does read the published material in Victoria, the end effect of the publishing is the same as had it been physically published in Victoria. On the other hand, this has the effect of lowering all laws to 'lowest common denominator' across the international sphere. But if material were held to be published only where it was hosted, then this has the opposite effect, making the most relaxed laws possible.
I don't know which way the High Court will go, and I don't envy their decision. Maybe I'm biased as a Victorian, but I don't like to see people defamed unnecessarily. In a sense the decision will have more to do with the relative strength of US anti-defamation law than anything else - the high court would be unlikely to leave a Plaintiff with no course of action if a clear breach of Australian law exists.
Re:LOL @ those arrogant fools (Score:2)
Not true - as long as the foreign court exercises due process and there is a sufficient connection between the venue and the act that gives rise to the suit, a US court will enforce the judgement of a foreign court.
Internet trials = End of Globalization? (Score:1)
Recursive: See Recursive
Would it be reasonable to assume that on some newspaper stand in Australia one could find a newspaper published and printed in the USA that's been imported into Australia? Who's liable the case of defamation under that scenario - the author, the importer, the newsstand, none of the above, or any/all of the above?
Others have pointed out attempts to enforce laws based on where the wires that carry the traffic are located. Yet in the USA at least, we've absolved the wire owners of liability for content.
Then there's the case of Dmitry Sklyarov, arrested in the USA for doing something in another country that is legal in that country.
Point being: Legislation is a horrendously (and in most cases, thankfully) slow process. It will be years, perhaps scores of years, before meaningful, cogent legislation addressing the global Internet is signed and passes legal scrutiny. Until then (and maybe even afterwards) if our litigious society continues to litigate these matters, it's quite possible that so many people will be under indictment in various countries as to start impacting world travel. Globalization will collapse and the world will start to look very isolationist.
This case will be very interesting. (Score:1)
The United States Govt has been pushing for a world government, presumably with the US as it's head of state. What will be interesting to see is if this 'rule of law' is something that also applies to the United States and it's Korporations, or whether it is something that will be imposed by force on the rest of the world by the US, while the new 'Rome' remains exempt.
After all, intelligent well informed people did wonder when the 'war on terrorism', including 'any nation that trains or harbours terrorists' was going to extend to the CIA and US military, who have trained and harboured more genocidal despots and 'counter revolutionary' terrorists than any other nation on earth.
But no, it seems there is a double standard. It's OK for the US to train 'freedom fighters', but piss-poor nations can have the shit bombed out of them for harbouring 'terrorists' (ironically, the same people!)
So now we get to see if the double standard also applies to the rule of law. Will a US Korporation even ACCEPT or COMPLY to a ruling of an Australian court, or will you start bombing Australia as well?
Personally, I don't like the idea of a world government, but what is more frightening is the idea of a world government that is completely above the law.