January 2002
Might you Face Liability for Defamation on the Internet?
Dow Jones & Company Inc v Gutnick [2002] HCA 56
This case is potentially ground breaking in that it may set a precedent regarding the provision of web based material.
Mr Gutnick originally issued proceedings against Dow Jones for defamation in Victoria, Australia following an article . In the US it is usual to issue proceedings in the home location of the defendant however in Australia it is permitted to sue where the harm was caused. Gutnick therefore claimed that he has suffered most harm in his home of Victoria as that is where people know him best. In the original case the court of Victoria agreed that the material was deemed published when downloaded by people in Victoria. Dow Jones sought to appeal in Victoria and failed however were then granted an appeal in the High Court of Australia.
Dow Jones contended that as the article was published in New Jersey and subsequently uploaded and stored on servers in New York, the proceedings should have been held there. Their lawyers therefore submitted that the place of publishing should be deemed to be where the site is maintained unless that place is "adventitious or opportunistic". However it is immediately evident that judging what constitutes adventitious or opportunistic would quickly become very difficult. The opposing opinion offered was therefore that a publisher should be bound to take account of laws in all countries on earth as no boundaries can be placed on who accesses the internet and downloads information.
BRIFFA Comment:
This case is being seen as a serious threat to freedom of speech on the internet and serves as a warning to those uploading information, and more particularly opinion, onto the internet. The ultimate logical conclusion is that a person or company could be deemed liable for whatever is on posted on a website that they either own or host. Since sites such as message boards involve people posting their own material it is absolutely essential that effective terms and conditions of use are put into place. Please contact us for more information. Also watch this space as we are sure that this will not be the end of Gutnick.