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sought to have the libel action brought against them
by Mr Gutnick litigated in the US. The case concerns
the publication of an article, which Mr Gutnick complained was defamatory
of him. Mr Gutnick lives in Australia but conducts much of his business
in the US.
The issue of where the offending material was published affects which laws are applied and the jurisdiction in which the proceedings are brought. These are issues that will have a significant impact on cases, defences, outcomes and levels of damages.
Dow Jones argued that the overwhelming majority of their readership was in the US, with only a few dozen subscribers in Australia, and that publication occurred at the Internet Servers maintained by it in the US. Conversely, Mr Gutnick argued that the case should be heard in Australia, as this is where he and several others downloaded the offending article. More particularly, of course, a trial in Australia under Australian law is more likely to favour the victim over the publisher.
In this case the Australian Supreme Court has now ruled on the question of “where will it end” … and it ends in Australia. This is common sense in many ways, as damage is done not where offending material is written or put in the post box, but where it is actually downloaded and read.
In the UK the ISP Demon has recently paid substantial damages for failing to remove defamatory material from one of its Usenet discussion sites following a complaint. This has led to nervous ISPs taking the sensible course of action that the moment they get a whiff that material may be defamatory, they remove it, and the prudent ISP makes certain that its terms of business allows it to remove offending or potentially offending material at its sole discretion.
This is an area of law that is and will continue to be subject to intense scrutiny and lobbying. Individual rights, Human Rights, freedom of speech, public interest compete with each other for the moral and legal high ground. Where will it end?