The Australian High Court and Dow Jones & Company Inc v Gutnick - Case Study Example

Table of Contents Jurisdiction and the Internet 2 Dow Jones & Company Inc. v Gutnick 3 Undisputed Facts 3 Proceedings in court 3 The Verdict 4 Discussion 5 Similar Case: US ruling 5 Similar Case: UK Ruling 7 Similar Case: Zimbabwe Ruling 8 Similar Case: Ruling in Canada 8 Conclusion 10 Bibliography 12 Name Course Name Course code 4th April, 2012. Jurisdiction and the Internet Jurisdiction is a term used to refer to the ability of a court to legally take action in a matter presented to it in a manner that does not contravene the constitution of the location of the court. In the traditional context jurisdiction was only a matter of looking at territorial boundaries, while in modern times courts are faced with a number of problems in determining jurisdiction. The Drawing together of the world both in economic and social terms, a virtually erasure of international boundaries and technology that transcends across international boundaries are some of the factors that have made determination of any court’s jurisdiction a major headache1. Jurisdiction also concerns itself with which court level in a country’s structure of justice is supposed to hear what type of cases? What is the procedure for processing such a case? The internet has contributed to this Jurisdiction headache by enabling information to easily pass through international boundaries with little control from governments where the information is sourced or where the recipient’s of online information lives2. Since the internet spawns more than one country it becomes hard to determine the country which has authority on violations of the law that are occurring on it. Many cases have been tried on issue related to the internet and the spread of information that has the possibility to damage individual’s reputation3. One such case was Dow Jones & Company Inc. v Gutnick (2002) 210 CLR 575, this paper tries to analyze how the court arrived at a conclusion and how this judgment differs or resembles conclusion arrived at in cases of a similar nature. Dow Jones & Company Inc. v Gutnick According to evidence tabled by the plaintiff Dow Jones an online magazine and had on one of its publication on 28th October 2000, wrote an article with the title “Unholy Gains”4. In the article Mr. Gutnick was claimed to have shadowy business dealings and that some of his charity work was used by Mr. Goldberg to move money illegally across nations and they participated in the trading of securities5. Mr. Goldberg had already served a jail term because of tax evasion; the article further associated the Plaintiff with alleged attempts to influence trading at the share market in New York, Undisputed Facts It was established in court that five copies of the Barron were circulated in Australia in print format. While the copies read digitally were 550,000 but only 1700 Australian used their credit cards to access it online. Proceedings in court Gutnick filed in a Victorian court against Dow Jones & Co Inc., claiming they ruined his reputation both at home and internationally where he had various interests in charitable work and businesses6. Gutnick However stressed the article had most impacted negatively on his life as a businessman and philanthropist in Victoria. The first major victory for him was when the Victoria Supreme Court allowed him to serve the Defendant with the suit. The immediate response from the Defendant was to apply to have the proceedings of the court terminated, arguing it had no authority to determine the case as the article had been written and published in another country. To block this application Mr. Gutnick presented information that confirmed the articles had shown him in negative light, and had actually negatively affected his everyday life in Victoria. Mr. Gutnick satisfied the court that the article had been downloaded and accessed by people who live in Australia and they had actually paid for it. The Verdict In delivering the court’s decision the Presiding Judge noted that all his colleagues had agreed to rule in favour of the plaintiff, maintaining that the court had the mandate to have such issues brought before it and that Mr. Gutnick was within his rights to file the case in Victoria. He agreed that the content of the article had indeed soiled the plaintiffs name in Victoria making this the location of the Defamation instead of New York where the article’s origin or New Jersey where the internet server is located. Eventually the Court ordered Dow Jones to pay the Plaintiff $580,000 as compensation for soiled image and costs incurred in the trial7. This ruling serves as a warning to publisher who use the internet as a means of spreading information to other countries, and doing it without much thought of the implications of such information on those who will receive it or those that are mentioned in its articles. Discussion Over the last few years access to the internet has changed the world, meaning an event happening in one country cannot be contained in that country alone. Of more relevance to our case is whether such information has an effect in another country other than its origin country. The ruling in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 shows publishers can be held culpable for information that has a harmful effect on an individual’s reputation accessed in another country through the internet. However internet publishers whose content is not interactive can rest easy as it has to be shown that for any information to be termed as defamation, reasonable interaction has to be proven with the minimum threshold for interaction being download of content. From the point of view of those who propel the idea of total freedom of communication on the internet, the above case shows that certain courts are barriers to the free flow of information. The ruling allows publishers of materials on the internet that can be accessed in any location in the world, to be held accountable for the contents of those materials by foreign courts. A judgment in the United States around the same time as Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 in the case of Stanley Young v. New Haven Advocate, et al., 315 F.3d 256 (4th Cir 2003), a Virginia court refused to extend its jurisdiction to hear a matter where the plaintiff claims to have had his reputation soiled by internet articles from newspapers in Connecticut8. Similar Case: US ruling In the Virginia case; the two Connecticut newspapers among them the New Haven Advocates had been sued in a Virginia court by the plaintiff. In an article published in the advocate touching on Connecticut’s arrangements to have some of its prisoners held in Virginia, the articles claimed that prisoners visitation rights were being interfered with and that the sanitation at one of the Virginia prisons ( Wallens Ridge State Prison) were very poor. In making the Claims the article mentioned Warden Young severally. The other Newspaper the courant also published another article focusing on the poor quality of inmate’s life at the prison, but there was no mention of the Plaintiff. In May 2000, the plaintiff sued for compensation claiming the two papers had ruined his reputation by associating him with mistreatment of prisoners at his place of work. He also pointed out the articles had been posted to the internet ruining his reputation worldwide and most importantly in Virginia where he worked. After tabling their facts the two newspapers satisfied the judge that, the two newspapers targeted their published content to residents of Virginia only and there weren’t enough interactions with their circulated content in Virginia9 and neither did they show intent to circulate the articles or any of their publications there10. When the case facts were established they were only slight variations with those in Dow Jones & Company Inc. v Gutnick (2002) 210 CLR 575, but in the final verdict the judge overturned an earlier ruling that had refused to grant an application to dismiss the case on grounds that the court had no authority over the issue this conflicted greatly with the Gutnick’s libel award decision. Similar Case: UK Ruling In the King v Lewis 2004] EWHC 168 (QB) case filed in the UK; Mr. King a boxing promoter had sued Lennox Lewis one of the boxers under his promotion agency11. The claim was that the boxer on two articles written in boxingtalk.com and Fightnews.com and posted on the internet had soiled his reputation in the United Kingdom. He further claimed that the two articles had referred to him as a bigot and anti-Jewish. Both the Plaintiff and defendant lived in the United States bringing into question why the Plaintiff had decided to file suit in the United Kingdom instead of the United States where he is a citizen and where both he and the defendant reside. The two articles were also prepared in the United States and uploaded in the Internet. In the King v Lewis 2004] EWHC 168 (QB) the court agreed it had jurisdiction to hear the matter agreeing with the reasons cited by King’s legal team. It was established that the plaintiff does indeed have a reputation to protect in the United Kingdom12. Among the grounds cited by Mr. King’s team to have the case determined in the UK, include a claim that he appeared on British interviews on radios, TVs and newspapers, he had also been featured in an ongoing advertisement and also had many Jewish friends and associates in Britain. His Lawyers further urged that as a boxing match organizer he had business interests in the UK and was a well recognized figure on the international sports scene. The Decision to have this case proceed can be reconciled with the Dow Jones & Company Inc. v Gutnick (2002) 210 CLR 575 ruling as both courts decided to range their jurisdiction to hear matters where the defense had argued the place of publication of the offending materials to be in another territorial jurisdiction, however the decision to proceed in King v Lewis 2004] EWHC 168 (QB) is questionable as the case should have been filed in the United States where most damage to King’s reputation occurred and where he and Lewis lived13. The King v Lewis 2004] EWHC 168 (QB)decision may encourage “libel tourism” as U.K courts are seen to easily award damages and take up internet defamation cases on defamation issues occurring in other countries , that courts in most countries would otherwise not have taken on grounds that they were not within their jurisdiction. Similar Case: Zimbabwe Ruling A Zimbabwean court was seen to have taken a similar stand as their English counterparts allowing a case against a writer for the London Based Guardian to be brought before it as the content of the article was available to the Zimbabwean people on the Internet. The court however cleared him of accusations of spreading false information in his article, but in the ruling no mention was made of whether Zimbabwean authorities can determine issues on internet articles that can be accessed in the country but come from elsewhere. The proceedings in this trial differ from the Gutnick’s Australian case as interactions with the content did not have to be proved for the court to have jurisdiction over the issue14. Similar Case: Ruling in Canada A fourth appeal Case in Canada Bangoura v The Washington Post [2005] Court of Appeal for Ontario C41379 (Unreported, Armstrong JA, Lang JA, McMurty CJO, 16 September 2005) [49] a different approach was seen15. The case was a major concern for international media practitioners and operators, as the earlier decision had allowed the plaintiff to file the case in Ontorio city, a place he had not been associated with at the time of release of the alleged defaming articles and had only just settled there. The Judge in the earlier verdict had used an ‘eight-part Muscatt test’ and arrived at the conclusion that the matter could be heard by an Ontario court16. However on 8th of March 2005, his ruling was overturned in an appeal against the earlier ruling. The bench of three justices that heard the appeal also applied the ‘eight-part Muscatt test’ previously used to determine jurisdiction in matters involving Canadian Provinces17. They agreed the plaintiff had little association with the forum (Ontario) chosen in the case at time of the alleged defamation, but further noted the contents of the article would always be associated with the plaintiff wherever he was in the world18. The case failed the test and Mr.Banguora lost his attempt to have the case determined in Ontorio19. The Ruling is reconcilable with the Dow Jones & Company Inc. v Gutnick (2002) 210 CLR 575 as right to file was denied on the fact that Bangoura’s association with Ontorio( the Forum) was minimal while Gutnick’s association was substantial for the articles effect on him to be felt there20. Conclusion The decision in the Gutnick’s Victoria case shook the foundation of companies and individuals distributing articles on the internet21. It urged caution while preparing and editing any material that would later be accessed by people in other countries that have access to the web. The decision called for editors to foresee the potential of posted articles to harm people’s reputation in foreign jurisdictions. However the other cases show the conflict between laws governing jurisdiction in different countries mentioned in the case. In the US intention to have an article distributed in the place of defamation has to be shown for a case to proceed. In the UK the simple action of posting articles with reputation damaging information is recognized is presumed to be defamation22. While in Zimbabwe any information that is accessible there on the internet may read to its prosecution of the writers. Each country has laws governing how information is spread within its own territory; whether information is entering, leaving or circulating within a country. In the cases above conflict and overlap with laws in some countries is illustrated. This brings to the fore the issues of which country’s law to apply and in which country to prosecute an offence like a defamation occurring on the internet. The world needs laws that can be applied uniformly to determine which court should have jurisdiction in internet issues involving foreign and local parties23. It is argue that there should be a “free flow of information” on the internet and some governments have a notion that they support unrestricted access, but in real sense they is always hidden restrictions as seen in the Zimbabwean, Australian and UK laws24.The Media community proposed the Ontorio appeal decision as the most appropriate approach to internet and Jurisdiction issues. Bibliography A. Articles/Books/Reports Branigin, William, ‘U.N. Removes African From Drug Agency; Controversial Envoy’s Misconduct Cited’, The Washington Post (Washington D.C.), 10 January 1997, A13 Collins, Matthew, The Law of Defamation and the Internet. (Oxford, OUP Oxford, 2005) Elizabeth F. Judge, ‘Cybertorts in Canada: Trends and Themes in Cyber-Libel and Other Online Torts’ in Todd Archibald & Michael G. Cochrane, eds., Annual Review Of Civil Litigation (Toronto: Carswell, 2005) 149 at 157 Engelen V, ‘Jurisdiction and Applicable Law in Matters of Intellectual Property’ (2010) 14(3) NIPR 143-149 Kramer X. E, ‘The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: The European private international law tradition continued’ (2008.) 16(2) NIPR 414- 424 Sir Anthony Mason, ‘A Bill of Rights for Australia?’ (1989) 5(2) Australian Bar Review 79, 81 Solove, Daniel, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. (Connecticut, Yale University Press, 2007) Soo Young Rieh & Nicholas J. Belkin, ‘Understanding Judgment Of Information Quality And Cognitive Authority in the Web’ (1998) 53 Journal of the American Society for Information Science and Technology 145 Thomas J. Johnson & Barbara K. Kaye, ‘Cruising is Believing?: Comparing Internet and Traditional Sources on Media Credibility Measures’ (1998) 75 Journalism & Mass Communication Quarterly 325 Koepsell, D. R, The ontology of cyberspace: philosophy, law, and the future of intellectual property’. (Chicago, Open Court, 2000) Lessig L. ‘The future of ideas: the fate of the commons in a connected World’ (New York, Random House, 2001) Maloney, M. ’Specific Jurisdiction and the “Arise from or Relate to” Requirement…What Does it Mean?’ (Wash. & Lee. L. Rev 1993) Morris, McClean, D. & Beevers, K.’The Conflict of Laws’ (London: Sweet & Maxwell Ltd, 6th Edition, 2005) Rice, D. T & Gladstone, J. ‘An Assessment of the Effects Test in Determining Personal Jurisdiction in Cyberspace’, (Bus. Law 2003) Smith, G. J. ‘Internet Law and Regulation’, (London, Sweet & Maxwell, 3th ed., 2002) B Cases Dow Jones & Company Inc. v Gutnick (2002) 210 CLR 575 Bangoura v The Washington Post [2005] Court of Appeal for Ontario C41379 (Unreported, Armstrong JA, Lang JA, McMurty CJO, 16 September 2005) [49] King v Lewis 2004] EWHC 168 (QB) Stanley Young v. New Haven Advocate, et al., 315 F.3d 256 (4th Cir 2003), Read More