The Dow Jones v Gutnick decision is just common sense

At last Internet publishers and free-speech advocates have a clear answer as to where a defamatory publication on the Internet can be litigated. If a story originates on a server in the United States and makes allegations about a person in Australia, then that person will be entitled to sue in their home state.

The proposition is simple but arriving at it has vexed the Victorian Supreme Court. It was finally put to rest by the High Court of Australia in the case of Dow Jones versus Gutnick.

After it was decided that an article published on the Internet, which made allegations of improper dealings by Melbourne businessman Joseph Gutnick, could be litigated in Victoria there was a terrific howl of indignation from many commentators. Cries of limiting the freedom offered by the Internet made great copy but shed little light and missed the real issue.

The High Court (as indeed Justice Hedigan did in Victoria) has treated Internet publishing in much the same way as other means of mass communication - and rightly so.

That information is uploaded from a server on the other side of the world should be irrelevant to the harm it may cause in the home country of the person who is its subject. The real issue is where a person reads or hears and comprehends the material, not where it may have come from.

To have news agencies such as CNN expressing great concern over this decision because they may be liable to defamation actions in every country on Earth is a good example of uninformed panic rather than rational consideration of the matter generally and the judgment itself.

The context in which the decision is made is no different to what has occurred in radio, television or other forms of international communication in the past. The only real difference is that the Internet has offered a greater reach and immediacy than previous forms of mass communication.

The advent of "cyberspace" has not caused the mayhem in this area of the law that many observers would make us believe.

The High Court has correctly observed that it is doubtful the World Wide Web has a uniquely broad reach:

"It is no more or less ubiquitous than some television services. In the end, pointing to the breadth or depth of reach of particular forms of communication may tend to obscure one basic fact ... In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction."

News organisations such as CNN or free-speech advocates need not fear a muzzle being placed on the freedom of publication made available by the Internet. Potential actions arising in every country around the world may exist in theory, but the reality is otherwise. Normally, people will only have a valid claim in defending their reputation in a place where the publication is made.

As the High Court pertinently states:

"Plaintiffs are unlikely to sue for defamation published outside the forum (the court's jurisdiction) unless a judgment obtained in the action would be of real value to the plaintiff. The value that a judgment would have may be much affected by whether it can be enforced in a place where the defendant has assets."

Joseph Gutnick has his home, business headquarters, family and social life in Victoria. In addition to this, he has restricted his claim to suing in Victoria only for the effect that the Internet publication has had on his reputation in Victoria. He is not suing the world at large. This could not occur in practice - a sentiment echoed in the High Court decision.

Dow Jones argued that the relevant jurisdiction for hearing this matter should be New Jersey, where the server for the Internet article is located. If this were accepted then absurd situations would arise.

For instance, a person defamed by an article appearing on the Internet would have to protect their reputation in the country hosting the relevant server, even though they may not be known there.

Furthermore, the United States, arguably the largest publisher on the Internet, would become the de facto forum for settling these types of disputes. Put another way, US laws would control the rights to one's reputation throughout the world.

For the High Court of Australia to decide otherwise would not have been in step with similar overseas decisions concerning the Internet.

Cases in the United Kingdom, Canada and the United States have clearly shown that countries will determine Internet issues, such as where a publication occurs, by their own domestic standards rather than being influenced or dictated to by foreign laws.

The decision of the High Court was unanimous in dismissing the application made by Dow Jones. Nevertheless, the court is clearly sensitive to multi-jurisdictional issues characterised by Internet publications and has left the door open for any variation of its decision should the substantive facts of the Gutnick case differ at some time in the future.

In any event, the decision is clearly practical and one of common sense.

Hopefully, it will be the beginning of a more rational and measured approach to the effect the Internet has on the law - rather than encouraging some of the sometimes hysterical scenarios developed by some Internet commentators.