Dow Jones & Company Inc. v. Gutnick
From Ad IDEM / CMLA
December 10, 2002 ( HCA 56)
Joseph Gutnick sought to bring a defamation claim against U.S.-based company Dow Jones for an article appearing on the company's internet publication of Barron's. Mr. Gutnick sought to bring the claim under Australian law, given that he lives in Victoria, Australia and he viewed the article there.
The laws of defamation in the United States and Australia take very different approaches. A fundamental difference is that Australia does not accept the American "single publication rule." Further, the United States takes a broad approach to freedom of speech and tends to favour the plaintiff in a libel suit, whereas Australian law best serves the defendant. The Court recognized and discussed these differences in coming to the conclusion that Mr. Gutnick could bring his case in Australia.
In order to determine jurisdiction, the Court considered the nature of the internet and what it means to publish in this global forum. It found that the material was "published" when it was read by Mr. Gutnick in Victoria, on the common law principle that defamation takes place where the damage to reputation occurs.
Dow Jones urged the Court to re-express well-established common law principles, arguing that the internet is a revolutionary technology raising problems that require bold solutions. The Court rejected this. It found, instead, that the common law, as it has developed with respect to other forms of communication, can be applied by analogy to the internet. In addition, the Court stated that to re-express the common law would exceed its judicial function.
Dow Jones also argued that this approach means that any publisher has a heavy burden in determining and following the libel laws of every country where the material can be read over the internet. The Court explained that the publisher's main consideration would be the country in which the potentially defamed individual resides. The Court did not find it unreasonable to oblige a publisher to consider the law of that particular jurisdiction.