Callinan J cautioned against the fallacy of taking the position that a defendant outside of the territorial borders of one country can escape prosecution on the grounds that, although he committed the wrong in one state, that state has no jurisdiction over him since he is resident elsewhere. The cumulative impact of the High Court of Australia’s ruling was a preference for the traditional jurisdictional rules. While it has been argued that the traditional rules are no longer adequate, the alternative is even less desirable.
It can be argued that by applying the traditional rules of jurisdiction, the High Court of Australia has left open the possibility that any number of countries where defamatory statements can be accessed will have jurisdiction over the claim. However, the mere fact that the Australian High Court focused on the plaintiff’s reputation and the place where he would suffer the real damage defeats this argument. Such an approach is consistent with the rules of natural justice.
If the Australian courts had rejected the traditional rules of jurisdiction the plaintiff would have been left in a position where he could not claim damages in the place where he had suffered damages. As Gray argues, some law has to be identified and applied in cases where a wrong is allegedly committed on the internet. To give equal weight to each state in which the internet is accessed is tantamount to functioning in a state of lawlessness. This is so since each possible jurisdiction would cancel out the other.
As Gray maintains while the conduct complained of might have been committed in cyberspace it was in fact committed by real people against others who are equally real and this alone should be the determining factor as it is in traditional jurisdictional rules. In John D. Barri’s analysis of the High Court of Australia’s decision he submits that the court was driven by a desire to safeguard against the plaintiff having to rely on US jurisdiction and confront constitutional arguments in favour of free speech.
Additionally, the court appeared to take the position that the Dow Jones’ arguments about the dynamics of the internet and its impact on jurisdiction merely distracted from the main issue. The main issue for the court was the right of an Australian to pursue a claim in his own country where he had suffered harm. In pointing this out Bari argues against the US approach to internet jurisdictional rules which focuses on the author of the publication. Even so, Bari acknowledges that while the traditional jurisdictional laws are no longer adequate to meet the new challenges of the internet, it is the best method for the time being.
Eventually: “... the internet is gong to require a uniform set of principles so that those who merge onto the information superhighway have an idea what the speed limit is. ” Nathan Garnett argues that the Dow Jones case increases the risk that the internet could become a viable threat to freedom of expression. The Australian High Court’s decision to apply the traditional rules of jurisdiction lowers the level of free speech protection typically allowed since it permitted an Australian to challenge an article published by an American from an American server.
The result is that an internet user who is operating in his own territory finds himself subject to the jurisdiction of another territory. In essence Garnett calls: “... for respect for the jurisdictional and speech laws of other countries when haling foreign citizens into court. ” The difficulty with this suggestion however is that it ignores reciprocity. There is no real purpose is requesting that one country respect the free speech laws of one country while that country is not expected to respect the defamation laws of the other.
Shawn Bone argues in favour of a departure from the traditional rules of jurisdiction submitting that the Dow Jones case erred in focusing on the issue of harm. This perspective undermines the legitimate use of the internet for the exchange of information. Bone however, also notes that the arguments presented by Dow Jones about the difficulties for the defendant having to answer to the plaintiff’s claim outside of their own territory was without merit since it would grant publishers a license to publish anything they wanted with impunity.
Arguing that neither approach is feasible, Bone goes on to suggest that the traditional rules of jurisdiction be displaced with respect to the internet and a new internet medium be set up defining the laws with disputes being resolved via an international arbitration process. While this idea is good in theory, it is entirely impractical since countries would have to indorse this medium in order for it to work. There is no guarantee that all sovereign nations in which the internet is used will agree to an international medium or some uniform internet law code. Conclusion
Relatively speaking, jurisdictional laws in respect of the internet are in its infancy. While the Dow Jones has been the subject of criticism by academics, it has been followed in both the US and the UK. The greatest difficulty for the application of traditional rules of jurisdiction is the balancing of principles of free speech and freedom of information ideology, both of which are relevant to the internet. Even so, this balancing of competing principles is nothing new and has never required a departure from traditional rules of jurisdiction. It therefore follows that it does not now require a departure from traditional jurisdictional rules.
The High Court of Australia was right to consider the harm the defendant suffered in his own country as the result of the conduct of another person in an entirely different territory. The defendant should not be permitted to escape liability merely because he committed the wrong somewhere else. The application of the traditional rules of jurisdiction have been tried and tested. As such they ensure that a plaintiff who is harmed whether by virtue of the internet or otherwise has a remedy despite the fact that his offender committed the act elsewhere and the harm occurred in another place.
The traditional rules of jurisdiction gives both venues jurisdiction over the matter.
Barendt, Eric. (2006) “Jurisdiction In Internet Libel Cases. ” Penn State Law Review. Vol. 110, 727 Bari, John Di. (2005) “A Survey of The Internet Jurisdiction Universe. ” New York International Review. Vol. 18, 123 Bone, Shawn. (2005) “Private Harms in the Cyber-World: The Conundrum of Choice of Law For Defamation Posed by Gutnick v Dow Jones and Co. ” Washington and Lee Law Review. Vol. 62, 279 http://www.murdoch.edu.au/elaw/issues/v9n3/pinto93.html