Asia Times: Oceania


	May 30, 2002	atimes.com

Oceania

Australian defamation case tests web freedom
By Bob Burton

CANBERRA - Major international media companies urged the High Court of Australia on Tuesday to overturn a lower court decision that they argue will dramatically limit freedom of speech on the Internet as a result of a defamation action between an Australian businessman and the US-based Dow Jones media company.

The Dow Jones legal team, led by London-based lawyer Geoffrey Robertson, host of the television series Hypotheticals, argued that if the original decision were left standing, it would have a chilling effect as publishers worldwide risked being sued in any one of the 191 countries with Internet access.

"To require a publisher to check up with lawyers in five or 10 countries ... that is too much to ask if the principle of free speech is to be supported," Roberston told the court. "The alternative is that the material is not put on the web and only published in printed form," he said.

The case has its origins in a 7,000-word article published on October 30, 2000, in the United States by Dow Jones-owned Barron's Magazine. The article, "Unholy gains", canvassed in part the involvement of a prominent Australian businessman, Joseph Gutnick, who was active in raising funds in the United States. Gutnick launched legal action in the Victoria Supreme Court for defamation on the grounds that the article damaged his standing especially in the eyes of key financial investors in the Australian state of Victoria.

While only a small number of the printed copies of the magazine made their way to Australia, 1,700 Australian subscribers had access to the article via the website of the Wall Street Journal, where the article was also published. Dow Jones lawyers argued that the article was published where it was loaded to a computer server in New Jersey and therefore the appropriate jurisdiction for any legal action was in the United States.

Gutnick argued that it was published where 300 paying Victoria subscribers to Barron's downloaded it and therefore the case should be heard in Victoria. The first hearing resulted in victory for Gutnick, as did an appeal decision last August.

In his landmark decision, Justice John Hedigan concluded that the article was published where it had been downloaded in Victoria and the case should therefore be heard there. "This has been the law for centuries in respect of other forms of communication and I find no persuasive reason that it should not apply to Internet publications," he wrote in his judgment.

With no other court in the world having ruled on the issue to date, global media companies are alarmed at the precedent the decision will set unless it is overturned on appeal. Many of the English-speaking world's largest media companies - including The Guardian (UK), Reuters, the Washington Post, the New York Times and online operators Amazon and Yahoo - were granted leave to join the action alongside Dow Jones.

Gutnick's lawyers told the High Court at a day-long appeal on Tuesday that they reject the argument that the decision will have an effect on free speech. "It won't have a chilling effect," Gutnick's legal counsel, Jeff Sher, told the court. Sher warned that the adoption of the argument that publication occurred where information was uploaded on the Internet rather than where it was read involved a major change in the law. "This is a law they want changed for all causes of action on the Internet including copyright," he warned.

The Dow Jones legal team got a frosty reception from most of the High Court judges. "The basis of the law of defamation is to protect reputation, not publishers. In a sense the law of defamation is hostile to freedom of expression," one of the seven judges hearing the case, Justice Michael McHugh, bluntly told Robertson.

Justice Michael Kirby balked at the request by Robertson for the High Court to develop law to shape the regulation of defamation via the Internet. "The worry is that we are being asked to make new law without full knowledge ... I just feel anxious about being asked to change the law without full data," Kirby told Robertson.

Counsel for the 18 international media organizations, Brett Walker QC, argued that one consequence of the decision would be on small non-profit media organizations. "They include the very kind of persons with virtually no resources that are able to place information on the web ... and compete in the marketplace of ideas. They are ... the least able to withstand litigation," he argued.

Andrew Kenyon, a lecturer in media law at Melbourne University, considers it unlikely that the High Court will overturn the lower court's decision that publication is where the material is received. "It would be unlikely [the existing interpretation of the law] to be overturned simply because it has stood for so long," he said.

While Kenyon agrees there may be some chilling effect, especially for non-profit publishers, the main impact of the decision will be within Commonwealth countries. "In Australia the decision will have a binding effect on the states. Within Commonwealth countries it would be something that would be considered with a fair degree of weight but of much less influence in the United States," he said.

(Inter Press Service)