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Australia rules on where to sue for internet defamation

In a landmark decision, Australia's High Court ruled today that in defamation cases, an article posted on the internet is considered as published at the point where it is downloaded and read.

The case was brought by Australian businessman Joseph Gutnick against US publishing group Dow Jones & Company. Dow Jones, publisher of the Wall Street Journal, operates WSJ.com, a news site where users can access the company's newspapers and the Barron's Online magazine.

Gutnick claimed that a Barron's Online article, published in October 2000, defamed him, and he sued Dow Jones in Victoria, where his business is headquartered. He argued that the case should be heard in Australia, because he was only interested to re-establish his allegedly damaged reputation there.

Dow Jones, on the other hand, argued that Australian courts did not have jurisdiction in the case. The publisher claimed that the allegedly defamatory article was published in the US, where the company's web servers are located, and therefore the case should be heard there.

It also claimed that the establishment of jurisdiction where internet material is downloaded would unreasonably expose web publishers to defamation suits all over the world and therefore restrict freedom of speech.

After its arguments were rejected by two lower Australian Courts, Dow Jones brought the case before the country's High Court.

The court considered submissions by 18 media organisations, including AOL Time Warner, the Associated Press, Reuters and Yahoo!. It upheld the earlier decisions, reasoning that "jurisdiction and the place of wrong are established in Victoria" and dismissed the appeal.

The court said in its decision: "Victoria is a clearly appropriate forum for the litigation of [Gutnick's] claim to vindicate his reputation which has been attacked in Victoria, as well, plainly as elsewhere."

It played down, however, the notion that those who publish defamatory material on the internet are answerable before the courts of any nation where the damage to reputation has occurred.

The court considered that this "spectre of 'global' liability" is moderated by "the costs and practicalities of bringing proceedings against a foreign publisher" which "will usually be a sufficient impediment to discourage even the most intrepid of litigants."

It continued:

"Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this especially if that judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture."

Dow Jones expressed "disappointment." The defamation case can now continue in Victoria's Supreme Court.

The High Court's decision can be found at:

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