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Web libel ruling bound to please
tyrants
By Gary LaMoshi
HONG
KONG - While Hong Kong debates legislation to prohibit
"any act of treason, secession, sedition" or "subversion
against the Central People's Government" (see Article 23: Hong Kong's first faux
pas? December 5) within its borders, Australia's
highest court has paved the way for China and other
oppressive governments to apply their homegrown
standards to anything published anywhere in the world.
That ruling will help the world's autocrats sleep
better, while keeping media companies and reporters
awake and their lawyers busy.
The Australian
High Court ruled on Tuesday that material published on
the Internet is subject to local libel laws in a
complainant's jurisdiction, no matter where it
originated. The particular case involved a September
2000 article in the Dow Jones financial weekly Barron's
and Melbourne financial advisor Joseph Gutnick. The
article Gutnick alleged defamed him was published in the
United States and was also disseminated via the Dow
Jones website.
A similar lawsuit is pending in
the US, involving allegations in Connecticut newspapers
about mistreatment of Connecticut prisoners being held
in Virginia. The prison warden is suing the papers
because, while copies of the newspapers are not
distributed in Virginia, their websites are available
there.
Defamation is what I say it
is
As alleged
libel goes, the offending passages in the Barron's
article seem pretty mild. Reporter Bill Alpert wrote
that "Some of Gutnick's business dealings with religious
charities raise uncomfortable questions", and proceeded
to detail those dealings.
While not contenders for the Pulitzer, these
passages are statements of fact that Barron's and Alpert
can presumably back up. However, Gutnick is fortunate
enough to live and work in the Australian state of
Victoria, which offers plaintiffs extraordinary leeway
to define defamation. Gutnick wanted to sue in his home
court.
Tuesday's High Court ruling was not about
the merits of the lawsuit, only about where it should be
heard. Dow Jones, with a number of other media
organizations supporting it, said that the place of
publication (in this case, its web server in New Jersey)
should be the venue for any defamation suit.
Infamy begins at home
That
interpretation makes sense from a publisher's point of
view and follows US precedents on material that has been
published in physical form. But where does that leave a
party offended in cyberspace?
The court observed
that forcing a plaintiff to file a lawsuit on the
publisher's home turf would in effect grant the media
immunity due to the distance and expense involved. Fair
enough, even though it ignores that foreign plaintiffs
alleging damages in their homelands from US products
frequently sue in US courts to take advantage of their
famously liberal payouts.
Moreover, the court
ruled that damages to a reputation are most keenly felt
at home. Gutnick's principal business and home are in
Victoria, so he can logically claim to place the
greatest value on his good name there. Therefore, an
article that he alleges defamed him, and which could be
downloaded by hundreds of Barron's subscribers there,
can be judged there.
Judges dismissed the
objections of Dow Jones that such a ruling would leave
publishers at the mercy of the laws of countless,
unknown jurisdictions. In its opinion, the High Court
stated that publishers can reasonably determine the
standards they need to follow by knowing the places of
residence and business of the subjects of articles and
abiding by those laws.
The court also refused to
consider the argument that publishers choose a home base
in order to enjoy certain protections it provides, such
as freedom of speech, and that decision deserves legal
recognition unless that place was "merely adventitious
or opportunistic". The ruling fixated on those two terms
and concluded that any location could be considered
adventitious or opportunistic under some definition.
Gutnick cheered the ruling, saying it
established the principle that "the Net is no different
from a regular newspaper". His lawyers should have asked
for higher fees after that statement, since in fact the
ruling pointed up the enormous difference in reach
between newsprint and the World Wide Web.
Race for the bottom
News Ltd, the
Australian arm of Rupert Murdoch's News Corp, issued a
statement saying the decision "underlines the urgency of
introducing national, uniform defamation laws". One of
the ruling judges, in his concurring opinion, also urged
"national legislative attention and ... international
discussion in a forum as global as the Internet itself".
It would be terrific if all nations could agree
on a single standard for defamation and libel over the
web. Leaving aside the qualitative question of what
standard they might agree on, keep in mind it's taken
the better part of a decade to work out the seemingly
less contentious issue of domain names. But don't
dismiss the idea that this decision in Australia will
spark global action: a race for the bottom to find law
that will do the most to squelch the media's freedom to
report and the public's right to know.
The
ruling gives authoritarian regimes around the world a
new bludgeon to use against news organizations as well
as their own populations trying to get access to media
beyond the control of state censors. If these states
don't already have laws their courts can use against
offending overseas publications, rest assured they'll
create them in a flash. Dow Jones may have disliked the
idea of being hauled into an Australian court; it's
going to love learning about the Iranian judiciary
system.
Worse, this ruling from the Australian
High Court gives these regimes cover from a
Western-style democracy to repress the media and access
to information. These countries are often lectured to
follow Western models to protect human rights, and
here's an instance where they surely will. One
particular country to watch is Malaysia, which has
pledged, to the regret of its increasingly repressive
rulers, not to censor the Internet. Now Prime Minister
Mahathir Mohamad and friends have a new tool, made in
Australia, to suppress news they dislike.
While
US laws give media wide latitude when it comes to
defamation of public figures, Asian laws don't. Leaders
of Singapore's ruling People's Action Party regularly
use libel suits to impoverish and even jail political
opponents. Hong Kong's Chief Secretary Donald Tsang took
a local newspaper to court last year and won.
You can hear the barriers to information rising
in places like China and feel the chill on reporters in
Hong Kong, who already face significant hurdles from
careful editors when it comes to reporting about the
mainland. Now, before any new legislation, editors have
a reason to be even more cautious.
You can even
imagine the dollar signs in some leaders' eyes. You
can't blame Kim Jong-il for thinking, "I don't have to
put up with weapons inspectors and restrictions on arms
to get a little food aid when I can sue AOL TimeWarner
for stuff that's on CNN.com. Now, will someone explain
to me about this Internet?"
(©2002 Asia Times
Online Co, Ltd. All rights reserved. Please contact content@atimes.com
for information on our sales and syndication policies.)
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