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II. DEFAMATION ON THE INTERNET—NICE DECISION, SHAME ABOUT THE REASONING: DOW JONES & CO INC v GUTNICK

Published online by Cambridge University Press:  17 January 2008

Uta Kohl
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Abstract

The decision by the High Court of Australia in Dow Jones & Co Inc v Gutnick,1 one of the first decisions by a final court of appeal on transnational online defamation, handed down on 10 Dec 2002, deals with the contentious issue of whether and, if so, when online publishers have to comply with the defamation laws of foreign States. The decision has been labelled a ‘dangerous precedent’ and an ‘extraordinary judgment’2 by the British press. But is it indeed either?

Type
Current Developments: European Union Law
Information
International & Comparative Law Quarterly , Volume 52 , Issue 4 , October 2003 , pp. 1049 - 1058
Copyright
Copyright © British Institute of International and Comparative Law 2003

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References

1 [2002] HCA 56, at <http://www.austilli.edu.au> [hereinafter: Gutnick]. For the transcript of the arguments brought before the court see Dow Jones & Co Inc v Gutnick M3/2002 (28 May 2002) at <http://www.austlii.edu.au>.+[hereinafter:+Gutnick].+For+the+transcript+of+the+arguments+brought+before+the+court+see+Dow+Jones+&+Co+Inc+v+Gutnick+M3/2002+(28+May+2002)+at+.>Google Scholar

2 ‘Sue You—Internet publishers face a dangerous precedent’, The Times (UK), 11 12 2002,21.Google Scholar

3 Above n 1, para 1 f, para 168 ff. The facts are discussed in detail in the judgment at first instance in Gutnick v Dow Jones & Co Inc ‘2001’ VSC 305 (Hedigan J), at <http://www.austlii.edu.au>, para 1–12.,+para+1–12.>Google Scholar

4 Ibid, para 32.

5 For its relevance see above n 1, para 48–52 (joint judgment).Google Scholar

6 Above n 3.Google Scholar

7 Dow Jones & Company v Gutnick [2001] VSCA 249 (Buchanan, JA and O'Bryan, AJA).Google Scholar

8 See News Release: Alpert vs Australia, New York, 15 Apr 2003, at <http://www.dowjones. com/news_aboutDJ/AlpertvsAus.pdf>..>Google Scholar

9 Most clearly stated by Kirby J at above n 1, para 93–110. In Regie National des Usines Renault SA v Zhang (2002) 76 ALJR 551 the High Court of Australia finally abandoned the double actionability rule to determine the applicable law in respect of transnational torts in favour of the lex loci delicti.Google Scholar

10 Above n 1, para 25 (joint judgment), citing Lee v Wilson & Mackinnon (1934) 51 CLR 276, 287 (Dixon, J).Google Scholar

11 Above n 1, para 188–90 (Callinan, J) on the fundamental differences of US and Australian/English defamation law.Google Scholar

12 Above n 1, para 44 (joint judgment), para 151 (Kirby, J) para 197 ff (Callinan, J).Google Scholar

13 Above n 1, para 84 ff (Kirby, J), cf para 38 f (joint judgment), paras 184–6 (Callinan, J).Google Scholar

14 The reasonable foreseeability of law is of course essential for upholding the rule of law. Above n 1 (transcript of arguments), 21 (and also 25 f): ‘if the rule of law…is to have any social meaning, then…it will include the capacity to know it in advance so as to be able to shape your conduct in light particularly of the deterrent example held out by people who have been ordered to pay damages…in the past.’Google Scholar

15 Averted to by Callinan, J: above n 1, para 182. This reasoning is also reflected in the ‘purposeful availment’ test, applied in the US to determine jurisdiction over a foreign defendant.Google Scholar

16 Above n 3, paras 38 f, 68, 73.Google Scholar

17 Above n 1, paras 84–7.Google Scholar

18 Above n 1, para 85.Google Scholar

19 Fleming, John G, The Law of Torts, 9th edn (Sydney: LBC Information Services,1998), 599 f.Google Scholar

20 Pullman v Walter Hill & Co Ltd ‘1891’ 1 QB 524, 527. See also Huth v Huth ‘1915’ 3 KB 32; Powell v Gelston ‘1916’ 2KB 615.Google Scholar

21 Above n 3, para 60.Google Scholar

22 Above n 3, para 43.Google Scholar

23 Above n 3, para 73, para 14, 115(11).Google Scholar

24 [2000] 1 WLR 1004. In as much as holding on to the traditional concept of publication in the online environment entails legal exposure of content providers across jurisdictions, it also entails their repeat liability over time: Loutchansky v The Times Newspapers Ltd & Ors ] EWCA Civ 1805, at <http://www.bailii.org>..>Google Scholar

25 Berezovsky v Michaels [2000] 1 WLR 1004, 1013 (Lord Steyn).Google Scholar

26 Ibid, 1012 f (Lord Steyn).

27 I have explored the implications of this aspect in Kohl, Uta, ‘Legal Reasoning and Legal Change in the Age of the Internet—Why the Ground Rules are Still Valid (1999) 7 International Journal of Law and Information Technology 123.CrossRefGoogle Scholar

28 (1998) ACWSJ LEXIS 84447.Google Scholar

29 The Ontario court applied the test laid down by the House of Lords in MacShannon v Rockware Glass Ltd [1978] 1 All ER 625, according to which the defendant must inter alia show that there is not a substantially more convenient court where the claim can be adjudicated.Google Scholar

30 Above n 28, para 11 f.Google Scholar

31 Above n 1, para 35 (joint judgment), para 65 (Gaudran, J Per). The rule was also rejected in Berezovsky v Michaels [2000] 1 WLR 1004 and Loutchansky v The Times [2001] EWCA Civ 1805. Note also that the US single publication rule is an exception to the main rule, according to which each communication by the same defamer, whether to a new person or to the same person, is generally a separate publication giving rise to separate causes of actions: s 577 A of Restatement (Second) of Torts (1977): ‘(1) Except as stated in Subsection (2) and (3), each of several communications to a third person by the same defamer is a separate publication….’Google Scholar

32 Above n 1, para 35. Its Australian equivalent is, for example, s 9(3) of Defamation Act 1974 (NSW) which prohibits more than one action in respect of multiple publications without leave of the court. Furthermore plaintiffs may be prevented from bringing multiple actions in respect of the same publication under the Anshun Estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) or on the basis of vexation (Maple v David Syme [1975] NSWLR 97).Google Scholar

33 ‘Comment on Subsection (3)’ of s 577A of Restatement (Second) of Torts (1977).Google Scholar

34 See also above n 25, 1011 (Lord Steyn): ‘The Uniform Single Publication Act does not assist in selecting the most suitable court for the trial: it merely prevents a multiplicity of suits.’Google Scholar

35 465 US 770 (1984).Google Scholar

36 Ibid, 777.

37 Ibid, 781. Cf position in Europe: Shevill v Presse Alliance SA Case C-68/93, para 32: ‘The plaintiff…has the option of bringing his entire claim before the courts either of the defendant's domicile or of the place where the publisher of the defamatory publication is established’ (emphasis added).

38 Above n 35, 774.Google Scholar

39 992 F Supp 44 (1998).Google Scholar

40 Ibid, 54.

41 Ibid, 57.

42 Above n 1, para 131.Google Scholar

43 Above n 3, para 73.Google Scholar

44 Above n 1, para 200.Google Scholar

45 Above n 1, para 186, see also para 39 (joint judgment).Google Scholar

46 Above n 3, para 16–18.Google Scholar

47 Above n 1, para 54 (joint judgment), para 165 (Kirby, J).Google Scholar

48 Above n 3, para 115(7).Google Scholar

49 Above n 1, para 39 (joint judgment), para 182 (Callina, J).Google Scholar

50 Above n 1, para 54 (joint judgment). This is consistent with their earlier statement that the ‘defamation is to be located at the place where the damage to reputation occurs’.Google Scholar

51 Young v New Haven Advocate 187 F Supp 2d 498 (2001).Google Scholar

52 Ibid, 508, see also 510. This then, according to the court, supported the claim that the defendants intentionally aimed their activities towards Virginia (Calder v Jones 465 US 783) or alternatively that the defendants ‘purposefully availed’ themselves of the privilege of conducting activities in the forum state (Burger King Corp v Rudzewicz 471 US 462).

53 Above n 19–20 and text accompanying notes. Contrast the US position where, at least in respect of pubic figures, the plaintiff must prove that the statement was made with actual malice, that is with the knowledge that it was false or with reckless disregard of whether it was false or not: Jeff, Sanders, ‘The Extraterritorial Application of the First Amendment to Defamation’ (1994) 19 North Carolina Journal of International Law and Commercial Regulation 515, 519.Google Scholar

54 This aspect could also be accommodated within the concept of publication given, as was discussed above, publication has never exclusively been concerned with the final result but always also looked at whether the defendant intended, or could be presumed to have intended, that result. See above n 19–20 and text accompanying notes.Google Scholar

55 Bonnier Media Ltd v Greg Lloyd Smith and Kestrel Trading Corporation (1 July 2002) Court of Session (Scotland), para 18, at <http://www.scotcourts.gov.uk/opinionsv/dru2606.html>..>Google Scholar

56 Ibid, para 19 (emphasis added). Consistent with the approach taken in Euromarket Designs Inc v Peters [2000] ETMR 1025, at <http://www.bailii.org>. Cf the attitude of Callinan J: above n 1, para 181.

57 Above n 1, para 39 (joint judgment).Google Scholar