|
HIGH COURT OF AUSTRALIA SUBJECTS U.S. INTERNET PUBLISHER TO JURISDICTION OF AUSTRALIAN COURTS
Dow Jones & Company Inc. v. Gutnick
(High Court of Australia, December 10, 2002)
Australia's highest court unanimously ruled that the U.S. publisher, Dow Jones, was subject to the jurisdiction of Australian courts in a defamation suit filed by Australian businessman, Joseph Gutnick.
Dow Jones published an article in its magazine, Barrons, made available in Australia on Dow Jones' website, which suggested Mr. Gutnick was a money launderer. The article had been edited in Dow Jones' New York office and uploaded onto a server in New Jersey. Gutnick sued Dow Jones in Australia, claiming that the defamation occurred there when people accessed the article online, resulting in damage to his reputation.
The lower court found jurisdiction arguing that Australian statutory rules allowed for service on foreign defendants where the plaintiff had suffered injury within Australia. Regarding the choice of laws to be applied, the court found the most significant elements of the tort had occurred in Australia (i.e. the defamatory statements had been "published" there when persons accessed the Dow Jones' website and Gutnick's reputation had been damaged there).
Dow Jones brought a special appeal to the Australian High Court, but it was dismissed. The court rejected Dow Jones' argument that the proper forum was either New York or New Jersey where the article had been edited and uploaded. It further rejected the American "single publication" rule that would, arbitrarily, have found jurisdiction in the location where defamatory material was uploaded. Defamation was more than a one-step process in that there must be a release of the defamatory statement by the defendant and its "publication" when accessed by a third party, resulting in harm. The latter two steps occurred in Australia.
The court did not believe the Internet was so radically different that it required redefinition of these traditional defamation principles, applied for years in other multi-jurisdictional actions arising from defamatory publications made over radio, TV, or satellite technologies.
Furthermore, the impact of applying these rules to the Internet would not expose publishers to unlimited liability since actions would most likely be brought in the jurisdiction where a plaintiff resided, conducted business and had a reputation. Therefore, publishers only needed to satisfy themselves that their publications did not amount to defamation under the laws of those specific jurisdictions.
The reasoning in this case differs from the Canadian case of Braintech Inc. v. Kostiuk, which held that merely posting material on a website was not sufficient to assert jurisdiction. Additional elements, such as doing business in a location, were necessary to protect a defendant from unlimited liability in multiple jurisdictions.
View Case
|
