<nettime> EFA: Australian Internet defamation ruling

["geert lovink" <geert@xs4all.nl>]

from: "Greg Taylor" <gtaylor@efa.org.au>
subject: Australian Internet defamation ruling

This case in the Supreme Court of Victoria, Australia, could set an
unfortunate precedent.

Gutnick v Dow Jones & Co Inc [2001] VSC 305 (28 August 2001)
http://www.austlii.edu.au/au/cases/vic/VSC/2001/305.html

The case sought a determination about place of publication and therefore
relevant jurisdiction in an Internet defamation action.  Celebrity human
rights lawyer Geoffrey Robertson appeared for the defence.

A well-known plaintiff in Victoria, Australia (Joseph Gutnick) alleged
defamation against a well-known defendant in the USA (Dow Jones & Co,
publisher of Barrons Magazine and the Wall Street Journal), over
publication of material on a website.  The defendant argued that the place
of publication was New Jersey, since that was where the website was based,
and that the Victorian Supreme Court did not have jurisdiction.  The judge
has ruled that publication occurred in Victoria and that the court has
jurisdiction to hear the case.

The conclusion:

'Weighing up and balancing all of these factors, I reach a clear conclusion
that the State of Victoria is both the appropriate forum and convenient
forum for the disposition of the litigation commenced by the plaintiff.
Many of the defendant's claimed difficulties are more imagined than real,
but, at the end of the day, the most significant of the features favouring
a Victorian jurisdiction is that the proceeding has been commenced by a
Victorian resident conducting his business and social affairs in this State
in respect of a defamatory publication published in this State, suing only
upon publication in this State and disclaiming any form of damages in any
other place. 

In my view, it would be verging on the extraordinary to suggest that
Mr Gutnick's action in respect of that part of the publication on which he
sues should be removed for determination to the State of New Jersey or the
State of New York. To use the words of Lord Steyn in Berezovsky: 

  "This Court having jurisdiction, it is manifestly just and
   reasonable that this Court should be the place where the 
   defendant should answer for its wrongdoing."

Accordingly, for all of these reasons, I refuse the defendant's application
for a stay of this proceeding.'

Greg Taylor
Electronic Frontiers Australia
www.efa.org.au

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