February 2003
Gutnik Gone to Ground in the US; Freedom of Speech on the Internet Lives to Fight Another Day.
The shockwaves felt in the internet world following the recently reported Australian case of Gutnik (see article posted earlier on our site) have been quelled somewhat by a rejection of its principles in the American courts.
The Australian courts had deemed that in cases where defamation occurred on the internet a case could be brought where the article was downloaded if the claimant could show that he was known in that place. Therefore when Dow Jones put an article on a website including information about Mr Gutnik, even though they are an American company and their sites are hosted in the US, Mr Gutnik could pursue a case in Australia where he felt that damage had been suffered.
A recent US case found that, even though the scenario concerned involved a domestic inter-state case (i.e. an article in Connecticut newspapers online being read in Virginia) that under American law the case could not be heard in Virginia since the article had not been "intentionally aimed at" a Virginian audience. If this becomes an accepted precedent the question of whether an article has been "intentionally aimed" at an audience will become somewhat dubious. Although in the case of a Connecticut newspaper the audience can be presumed to be predominantly from Connecticut, it is often unclear as to how to define who an internet article is realistically aimed at.
BRIFFA Comment:
This will come as a relief to ISP providers and website owners worldwide who had feared that if a precedent was set permitting this type of transferral of litigious intent effectively to wherever the aggrieved party felt most likely to succeed, freedom of speech on the internet would become endangered. It is clear, however, that debate over the legal implications of the internet and its content will be blazing for some time yet.