Dow Settlement of Defamation Case Worries Web Publishers Everywhere

The October 2004 settlement between Dow Jones' Barron's and Joseph Gutnick, settling a defamation case, is disturbing Internet publishers everywhere. The case involved an Australian plaintiff accusing NJ-based Dow Jones of libel, and successfully establishing that Australia, specifically the courts in Victoria, was the proper forum to hear and decide the case, under Australia's libel laws.

The case raised the issue of where libel that allegedly occurs in Internet publications should be tried: where the defendant is located? where the victim is located? where the audience is located? If it's published on the Internet, where did the libel happen? And to what extent are publishers responsible for users voluntarily downloading their content?

The UK says the place of publication is where the material is downloaded. On the other hand, if a US defendant doesn't contest a libel action in the UK, any judgment against him or her is not enforceable in the US. Canada recently allowed a libel case, Bangoura v. The Washington Post, to be filed there, despite the defendant not residing there and despite the fact that the publication occurred outside Canada.

In the US, the approach is to consider what audience a website is targeting, and just being on the Internet doesn't mean you can be sued everywhere. In the US, you must affirmatively act to try to get readers in a particular area in order to be sued there. In Young v. New Haven Advocate[/i], 315 F.3rd 256 (2002).

But in Australia, under its common law, "defamatory matter is published in each place in which it is read, seen (. . .) heard." Publishers with assets in Australia are, therefore, vulnerable to being sued there, no matter where the publisher is located. Dow Jones argued that it had no control over the users who might request a particular article from Dow's servers, but the argument foundered because the publisher allowed only password holders with paid-up accounts to access its website.

A real worry is that trying to abide by local laws everywhere is a real threat to free speech, with publishers self-censoring in order not to offend anyone, or that they will publish negative news and information only about those too poor to sue. Another concern is that totalitarian regimes might persecute reporters they wishe to silence, as reportedly happened to American journalist Andrew Meldrum, a correspondent for The Guardian, prosecuted in Zimbabwe for "publishing falsehoods".

http://www.abanet.org/journal/ereport/dec3aussie.html

Meldrum case:
http://www.guardian.co.uk/internetnews/story/0,7369,739026,00.html

Discussion of AU defamation law and Gutnick case:
http://www.murdoch.edu.au/elaw/issues/v11n3/beyer113_text.html

Dow Jones v. Gutnick decision establishing Australia's Victoria as proper forum:
http://www.austlii.edu.au/au/cases/cth/high_ct/2002/56.html

Young v. New Have Advocate:
http://laws.lp.findlaw.com/4th/012340p.html

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