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."
Link to Case (Score:2)
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)
Try again.http://www.austlii.edu.au/au/cases/cth/high_ ct/2002/56.html [austlii.edu.au]
About the decision (Score:2)
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.
Re:About the decision (Score:2)
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 :).
Re:About the decision (Score:2)
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..;)
Re:About the decision (Score:2)
The printed page will not go away for a while yet.
Re:About the decision (Score:2)
Yeah, the status of published decisions in the States has been off, because obviously the opinions, orders, etc. are public domain, but the only practical way of researching them is through private firms, specifically West and, to a lesser extent, Lexis. West actually sued over its "star paging" -- which refers to physical page numbers in electronic docs. This monopoly will be short-lived once law firms get a little more cost-conscious. (For a while, one was supposed to cite to THREE separate pubs for every Supreme Court case -- very tedious to find the page numbers, esp. by hand.)
Your LII may have something in common with the Cornell LII [cornell.edu] (where I went to school) -- a painfully boring but wonderful resource of all the law that you can eat.
Anyway
Re:About the decision (Score:2, Informative)
The real discussions on Slashdot usually only interesting to a few people :)
Cornell LII [cornell.edu] isn't directly affiliated with AustLII the way, say CanLII [canlii.org] (Canadian law) is, but they keep in touch...
CanLII is actually funded by a levy on the practicing certificates of Canadian lawyers, which is a perfect example of law firms doing an end-run around the legal publishing monopolies.
Btw, check out WorldLII [worldlii.org], which contains stuff from most of the common law world (minus US) as well as links to stuff from all over. Much better then Findlaw :)
Re:About the decision (Score:2)
Actually there is money to be made in non-U.S. law affecting U.S. interests (as in, of all things, the original story here) and in "public int'l law" (PIL) which I though a joke until I had to persuade myself to take it seriously to pass the exam.
PIL is about relations among states, not individuals, and I had thought it all to be political; but some progress has been made in getting states to resolve their differences in a more or less rational way. One major problem has been the tendency of the United States to ignore embarassing decisions, as in Nicaragua, or to refuse to consent to jurisdiction in th first place, as with the int'l criminal court. I think the U.S. has some good arguments in its defense, but the general highandedness is unfortunate and damaging. Fortunately we took the high road on the Iraq question. Oh wait, no we didn't until Faction A in the White House lost out to Faction B, Colin Powell et al. I shudder to think that many people in other countries believe that all Americans act and think as one, but have been in some arguments abroad that illustrated the opposite.
REGARDLESS, thank you for the info, I am one American interested in what's going on in other places. When will there be AngloILL, consolidating all of the English-language stuff?
Terms of use, choice of law, and disclaimers (Score:4, Insightful)
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.
Re:Terms of use, choice of law, and disclaimers (Score:3, Insightful)
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.
Depends on how discovered (Score:2)
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... (Score:2, Interesting)
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?
Re:Depends on how discovered (Score:2)
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.
Re:Terms of use, choice of law, and disclaimers (Score:2, Informative)
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.
Re:Terms of use, choice of law, and disclaimers (Score:2)
New way from Americans to avoid the death penalty (Score:4, Funny)
Get your case heard in a non executing country.
Re:New way from Americans to avoid the death penal (Score:2)
Re:New way from Americans to avoid the death penal (Score:2)
Geeeez... (Score:4, Informative)
Re:Geeeez... (Score:2)
especially the common law which is still heavily in use in the English speaking world.
Re:Geeeez... (Score:3, Interesting)
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.
Re:Geeeez... (Score:2)
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).
Re:Geeeez... (Score:2)
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Re:Geeeez... (Score:2)
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.
Re:Geeeez... (Score:2)
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.
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Re:Geeeez... (Score:2)
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)
Re:Geeeez... (Score:3, Informative)
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.
Re:Geeeez... (Score:3, Informative)
That is more or less what I was getting at when I wrote "True having a presence within Australia will make it easier to get at the damages if they are awarded". I went on to say that there is some reciprocity at least between Australia and the US as regards foreign awards. I am not an American lawyer, but I believe there is both common law precedent (Hitlton v Guyot) and a uniform foreign money judgement code (which has been enacted by a number of states) and I would suspect a number of international agreements between like minded countries.
While the recognition of foreign judgements in the US is not automatic, neither AFAIK is it discretionary. Far from it, my impression is that a foreign judgement raises a prima facie presumption of liability, which it is then up to the defendant to negate, either by proving some lack of due process in the foreign judgement or whatever. One cannot presume that living in another country one is unreachable by decisions made offshore.
Sue in Vanuatu for an article posted on www.nytimes.com by somebody who resides in EnglandThat essentially, is what this case is about. (Except that the residence of the author is of no relevance.)
Important precedent (Score:2)
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.
Re:Geeeez... (Score:2)
Not good (Score:2, Insightful)
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.
Re:Not good (Score:2)
Disclaimer (Score:4, Interesting)
"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)
Re:Disclaimer (Score:2)
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.
Australian defamation law (Score:2)
in particular in the "defences available":
Re:Disclaimer (Score:2)
This ruling does change the laws, just because it's the internet. In my opinion, the courts should have taken the view that the material is published at the location of the webserver(s), and the internet acts as a distribution system for those documents. This finding says that if a document can by transmitted in some form to a country then it was published there. So if I can post a copy of "The Satanic Verses" to Saudi Arabia, then it was published in Saudi Arabia.
Question about the precendence this sets... (Score:5, Interesting)
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?
Re:Question about the precendence this sets... (Score:2, Informative)
Re:Question about the precendence this sets... (Score:2, Informative)
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.
You only worry if it is a criminal act (Score:4, Informative)
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!
Re:You only worry if it is a criminal act (Score:2)
thats not broadly speaking true.
it's a forum for information, some of which is opinion.
opinion can be a defence in australian defamation proceedings, but must be clearly identified as such.
Re:Question about the precendence this sets... (Score:2, Interesting)
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.
Re:Question about the precendence this sets... (Score:2)
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.
Re:Question about the precendence this sets... (Score:5, Insightful)
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?
Re:Question about the precendence this sets... (Score:2)
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.
Re:Question about the precendence this sets... (Score:2)
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?
Re:Question about the precendence this sets... (Score:2)
Re:Question about the precendence this sets... (Score:2)
How about you merely design a better mousetrap in international waters. Someone else takes the design into the US and no one uses it to break the law.
A hell of a lot more accurate in this case.
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Re:Question about the precendence this sets... (Score:2)
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.
Re:Question about the precendence this sets... (Score:2, Flamebait)
I'm not yet persuaded the US is a bully. I was listening to NPR this morning when I heard some guy from a think tank in Qatar explaining that they favored letting the US use their land for military action against Iraq because they thought it was in their interest to have powerful allies. Fair enough. We get something, they get something, we're both happy. Nobody's getting beaten up on the playground. I'm kinda tired, though, of being the rich uncle (Sam) who gets hit up for money any time anyone needs it, who sends sons and daughters to die thousands of miles from home saving other people's ass...ets, and is treated like a tyrant for asking something in return. I'm thinking of cases like Bosnia where I don't believe there was any political, economic, or military reason for us to bother. In fairness, I'm also thinking of cases like Rwanda, where there wasn't any political, economic, or military reason for us to bother, and to our everlasting shame, we didn't. While you have your nose up in the air ask yourself why you didn't do anything either.
I've got news for all the non-US citizens out there. There are more of you than there are of us. You have more economic power than we do. You have more political power than we do. Military is iffy since it's not a winner take all game. Both sides lose something. Still, we're not going to invade if you don't enforce the DMCA. Ya see, first, the rest of you (and remember, there are a lot more of you than us) would be pretty pissed off, and we don't want that. Second, like the citizens of just about everywhere else, all things being equal, we'd rather not have a war even on YOUR soil. Even those who favor war in Iraq don't favor having a war per se, but rather see the war bit as inevitable and are just choosing a time that's to our advantage (before he has nukes rather than after).
I could go on forever on this topic, so I'll try to draw it to a close by pointing the finger right back at 'cha. For every one of you who sticks up your nose at the stupid Americans while we sit on our fat backsides drinking bad beer and eating hormone filled fast food burgers, YOU ARE PART OF THE PROBLEM. As I've gotten out into the wider world, I've come to accept that here in the good 'ol US of A, we don't always hear what the rest of you are saying. Our ears are open, but unlike a lot of you, it's a long way to the border, the border's water on east and west anyway, and the guys down south speak a language most of us don't understand. We don't share your perspective because we don't live in your shoes, but that doesn't mean we're incapable of understanding your perspective. You don't understand our perspective for exactly the same reason. As long as we are both content to walk around with disdain for the others' ignorance, that's how things will remain. This is changing somewhat due to the advent of satellite TV and the Internet. Those voices are starting to come through more clearly, but ironically not because the speakers have done anything to make themselves heard more clearly. Speak up, mmmmkay?
Re:Question about the precendence this sets... (Score:2)
The point of my post, which you ignored in favor of saying, in essence "Yes you are!", is that a discussion is productive. Name calling is not. When Joe Sixpack in Anytown, USA hears you say "The US is a bully!" he farts in your general direction and goes back to watching Jerry Springer. When you say, "Hey, did you know you guys backed $DICTATOR to overthrow $ELECTED_OFFICIAL in $COUNTRY?" you at least have a chance of getting the thought process going. That person is going to probably at least think to themselves "I wonder if we did that. If we did, why, and was it the right thing to do?"
I'm telling you that basic presentation strategy applies. Ask 100 Americans to name their President, Vice President, Secretary of State, and the President's National Security Advisor and I'll bet you fewer than 25 can do it. These are the people you need to persuade. If you want to do the in thing and bash the US, knock yourself out. If you want to actually get your point across, doing so in a manner not likely to make your audience dismiss you out of hand would be a good idea.
Incidentally, I haven't seen Bowling for Columbine for exactly that reason. Michael Moore has done too many things to make me think he's nothing more than an extremist liberal slinging mud at the evil capitalists. Maybe he has something deserving of a fair hearing in this movie. If he hadn't so effectively turned me off he might have gotten one by now.
You can be effective or not. It's up to you.
Re:Question about the precendence this sets... (Score:2)
I suggest you examine your goals. Are you content to just sit back and hate the U.S., or do you want to influence its behavior by influencing the opinions of its voters? You posted a reasoned opinion on the Israel/Palestinian issue. Had it been prefaced by "Hey jackass", I probably wouldn't have bothered reading it. I can't say you changed my mind, but that's because I already oppose the huge sum of money we send Israel every year and I've already come to believe there's no good guy in that conflict and a lot of people caught in the middle who would rather not be. Killing innocent civilians is indefensible--on both sides.
I have to say you're not wrong, in my opinion, on the educational state of the average American. Back to my original point, you just have to decide if you're going to do nothing more than be pissed off about it, or are you going to do something. If enough people decide to do something, it will change. If enough sit back and do nothing, it will not.
Re:Question about the precendence this sets... (Score:2, Insightful)
"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.
Re:Question about the precendence this sets... (Score:2)
Re:Question about the precendence this sets... (Score:2)
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.
Re:Question about the precendence this sets... (Score:2)
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.)
Re:Question about the precendence this sets... (Score:2)
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).
Re:Question about the precendence this sets... (Score:2)
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.
Re:Question about the precendence this sets... (Score:2, Informative)
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.
DJ has Australian offices... (Score:2)
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.
Re:DJ has Australian offices... (Score:2)
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.
Re:DJ has Australian offices... (Score:2)
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.
Re:Question about the precendence this sets... (Score:2)
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
Corporate charter, jurisdiction (Score:5, Insightful)
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..
Re:Corporate charter, jurisdiction (Score:2)
From http://www.netstate.com/states/intro/de_intro.htm
Nope (Score:2)
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.
Before you attack the judges... (Score:5, Informative)
Re:Before you attack the judges... (Score:2, Informative)
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.
Re:Nuremberg (Score:2)
Nuremberg was a capital M mistake. Trying to create a war crimes trial in that case is insanely stupid, as the "crimes" they were charged with were not crimes at the time the actions occurred.
This does not mean that those actions were right. It just means that they weren't illegal. My view, personally, is that the people on trial at Nuremberg should have been simply hung from the nearest lamppost and that would be that.
We are seeing the perverse consequences of Nuremberg today, as the debate over the International Criminal Court continues and the USA tries to pretend that it's running a sort of criminal trial of Saddam Hussein as a prelude to war...
Re:Nuremberg (Score:2)
So, no justice at all, then? Are you aware that not all of those charged at Nuremberg were hung in the end?
Re:Nuremberg (Score:2)
Yes, I'm fully aware of that fact. My view is that if you put them on trial, you have no option but to acquit (an exception could be made for crimes committed in territories outside of Germany, Austria, and the Sudetenland), because no law was broken.
Re:Nuremberg (Score:2)
I see your point (or what I think is your point) that it creates bad legal precedent, but it was the least worst option.
Oops, double negative (Score:2)
Not whoring but... (Score:2, Insightful)
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)
Re:Hmm... (Score:2)
Re:Hmm... (Score:2)
Obligatory - Let the booting begin! (Score:5, Funny)
[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)
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.
Re:What it means (Score:2)
That sort of ignores Amendment 14 [cornell.edu], which in (really) short says that the Federal constitution applys to the states as well.
Re:What it means (Score:2)
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.
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!
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.
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Re:What it means (Score:2, Funny)
Don't forget -- lawyers charge by the word!
That will be $38, thanks. :)
And in related story. . . (Score:2)
Film at eleven.
KFG
One point about this decision (Score:2)
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...
Good roundup of aust defamation law and the net (Score:3, Informative)
http://www.efa.org.au/Issues/Censor/defamation.ht
Reversi (Score:3, Funny)
"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.
Re:Reversi (Score:2)
"Why Not? Americans are ALREADY applying (or trying to apply) their laws/standards to the rest of the world; or has everyone forgotten a certain Russian Programmer; and a Norwegian Kid; and the overseas implications of the DMCA already?"
Are you somehow arguing that if I criticize Thing A that Government B is doing, I have to include with it a dossier formally criticizing every country that does it too? How long do they have to stop before I can remove them from the list?
And while I'm asking the questions, who are you and why are you telling me how to go about critiqing and who I must include?
Just because the American government quashes fair use does not mean that Americans have to stop criticizing governments that also quash fair use any more than citizens of countries that piss all over human rights have to remain mute when other contries violate human rights.
What an obnoxious, ignorant post.
Re:Reversi (Score:2)
That was done by a handful of people and they dropped the charges. Maybe they realized they fscked up, maybe the American population convinced them they wouldn't stand for it.
and a Norwegian Kid;
That got nothing to do with American law, he's in Norway in front of a Norwegian court charged with breaking Norwegian law.
and the overseas implications of the DMCA already?
The main overseas implictation is that most other countries seem to be in some moronic race to see who can pass an even worse version of it, and how fast they can pass it.
This isn't hypocracy, it's a bad idea no matter what country tries to do it.
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This is problematic (Score:3, Interesting)
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.
This has widespread implications (Score:2, Troll)
This is Bill Gates we're talking about, right?
This ruling is discriminatory to the Internet (Score:3, Insightful)
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.
Judgement (Score:2)
May not be as bad as it sounds (Score:2)
Re:So if I say something deamed a criticism of Isl (Score:2, Insightful)
Re:1994 (Score:3, Insightful)
Re:Well, which would you chose? (Score:2)
Re:How does this set a new precident? (Score:3, Insightful)
Then quite a lot of western based clothing companies are theoretically treading on thin ice. Pornography, in Saudi, is not merely naked bodies. Bikini clad women count as well. So any clothing company that has a Saudi presence (and quite a lot do), and also makes/sells bikinis and probably has a catalog or ads depicting such, is, according to your statement, in danger of being sued by a Saudi court. Even if they do not export those particular items to Saudi Arabia.
So, the solution would seem to be either a) pander to the most restrictive countries on the planet, or b) do not sell goods anywhere but your own country.
I prefer C) this suit is a bunch of BS.