Dow Jones v Gutnick: the Internet honeymoon is over. What's next?

But the bigger potential pay-off for defending the indefensible is in the likely response of the US legal and political systems to the decision. The Washington Post gives a clue to the strength of domestic feeling when it says "A priority for the upcoming congressional session is legislation immunizing American publishers and journalists from this spurious litigation". The WaPo also threatens an information embargo: "…the Internet publishing community ... should use technology to block all Australian users access to their sites."

Such bumptiously xenophobic action may not be necessary. All this noise may encourage the Victorian Supreme Court when it considers the merits of the case, rather than its jurisdiction, to follow the precedent set by a British court last year. According to The Guardian, a Spanish news agency was able to successfully defend a defamation action because what it printed would have attracted a defence of qualified privilege in Spain, thus importing the law of Spain into that of Britain for these purposes.

There is another commercial angle to this. The practicalities of suing are that there is no point unless the defendant has assets available to satisfy a judgement. Large companies like Dow are likely to have significant assets situated in most countries on the globe. The same doesn't hold true for sites like Crikey! or On Line Opinion. One of the side effects of this judgement is that it gives an edge to small news organisations when it comes to investigative reporting on the 'net. Because of their size they can be more aggressive in printing material - an advantage which is not in Dow's interest.

'net tragics

The kernel of the 'net tragic argument can be found in Dow Jones' submission that because the Internet is a new technology it demands new laws. Matthew Ciolek, head of Internet publications at Canberra's Australian National University described the ruling as "Luddite", while Glen Reynolds of Instapundit fame warned that the decision could halt the communications revolution. Others claim that it is wrong because the Internet is meant to be "free".

The myth of the Internet is that it was originally created by the American military and that this Frankenstein's monster was then rescued by the computer community to serve mankind. "Serve" is obviously very dependant for meaning on ideology, and the underlying ideology of the early adopters of the Internet is libertarian and anarchic. It is almost a parallel universe to the respectable one in which the rest of us live our lives, a demi-monde where hackers can be heroes, and any hierarchy or authority or restraint is regarded with suspicion. This community sees the 'net as an opportunity to be godlike (even if their universe is interior, like the one in The Matrix) and that means the ability to go anywhere, be anything, do anything instantly. Their motto is "Because we can".

The technological argument basically says: "Because we have found an innovative, more technological and efficient way to do you damage than ever before, we should be allowed to without any constraints." If one accepts that it is wrong to do damage in the first place, this argument reveals itself as little more than adolescent hype. Which leads on to the third type of critic.

Free speech romantics

This group, in which you will find not a few publishers and writers, believes that speech should be as free as possible, but not without limits. However, we would set those limits much farther afield than they are set in Australia.

These critics would rather have the American standard on defamation than the Australian one, and the Dow argument would have provided that by the back door. But if that is the case, they would do much better to argue their case openly than to rely on a legal technicality. Legal decisions can enlarge rights, but they do this haphazardly - just look at the tangled knot of cases on Native Title.

I am also not certain that the US laws are to be preferred. If I cheat in an exam, or on my spouse, how widely do I deserve to have that truth spread? The US answer would appear to be "to the whole world, even if the allegation is not true". Australian law looks at the truth of the statement and asks whether the readers have a legitimate interest in knowing.

However, the free speech romantics are missing a major point. Legal precedents only influence courts, they have no bearing on what laws a government might pass. Take Zimbabwe, for example. Last year a Guardian journalist faced deportation for what was published on the Guardian's site. Their laws are already ahead of the Australian decision.

Such actions are not limited to bottom-drawer third-world regimes. In recent times France took on Yahoo! - for materials auctioned from their site - while Germany jailed Frederick Toben, director of the Adelaide Institute, for publishing material on his Australian site denying the holocaust.

As I write I am reasonably sure that On Line Opinion contravenes the law in China and Malaysia. China, because we have published articles on Falun Gong (any of our Chinese readers, wanting to compound that crime may click here); and Malaysia because it is illegal to import a bible (Malaysian readers click here). I am also reasonably sure that I am in good company with most other Australian media outlets.