The Australian High Courts

The Dow Jones case centred around an issue which is best described as international defamation made possible by virtue of the internet. Dow Jones was the publisher and distributor of the Wall Street Journal as well as Barron’s magazine. Dow Jones also maintained a website since 1996 which published news items . The news website was accessible via a subscription service and was available for a fee or by registration on the website. Once logged on to Dow Jones’ news website users had liberal access to Barron’s which was published and available at the news website.

On 28 October, 2000 the website published an article in its Barron’s Online publication which was titled Unholy Gains and its contents made a number of references to Gutnick implying that his conduct was characteristic of the article’s title. Gutnick responded by filing a law suit against Dow Jones in the courts of Victoria on the grounds that the publication had impugned his reputation and was therefore defamatory. Gutnick filed the suit in Victoria based on the personal jurisdiction element in that he was a resident of Victoria and his business had its headquarters in Victoria.

Be that as it may, Gutnick’s business transactions took him outside of the territory of Australia and into the US. He was also known in Israel, a country in which he had made several charitable donations. Even so, it was established that Victoria had jurisdiction over the matter with the result that Dow Jones appealed to the High Court of Australia. At the trial it was determined that Dow Jones’ news website was liberally available as it had approximately half a million subscribers.

It was also determined that no less than 1,700 subscribers to Dow Jones’ news website were domiciled in Australia with at least 300 resident in Victoria. On the other hand, the defendant company maintained a business office in the state of New Jersey, in the US where its news website server was hosted. Be that as it may, Gutnick’s claim was solely related to the publication of the articles in Victoria. Dow Jones ultimately challenged the State of Victoria’s jurisdiction over the claim and argued that in the alternative Victoria was not the most convenient forum for the trial.

In making these arguments and submission Dow Jones made an application for Gutnick’s action to be set aside or at the very least stayed. Not surprisingly the High Court of Victoria refused to grant the stay or to set aside Gutnick’s action ruling that the article at issue had been: “... published in the state of Victoria when downloaded by Dow Jones subscribers who had met Dow Jones’s payment and performance conditions and by the use of their passwords. ”

Moreover, the High Court of Australia explained that Gutnick could not be denied the right to pursue his claim in Victoria since he was ordinarily domiciled there. Victoria was also the place in which he was well known and had established a reputation there. It therefore followed that Victoria was the place where Gutnick could legitimately claim to have suffered damages to his reputation. The court took the position that the alleged defamatory statement or statements did not occur upon publication.

The alleged defamation took place at the moment it had been received by a third party. It was at this time that the statement had its defamatory effect since it turned on the impression that a third party derived from reading the publication. The implication of this ruling is that the defendant’s location is of no moment to the court. Dow Jones argued that permitting Gutnick’s claim places the defendant in a position where he is expected to be familiar with the laws of multiple jurisdictions. This, Dow Jones claimed would be unfair and contrary to the principles of justice.

The Australian High Court rejected this argument explaining that: “…the spectre which Dow Jones sought to conjure up in the present appeal, of a publisher forced to consider every article it publishes on the World Wide Web against the defamation laws of every country from Afghanistan to Zimbabwe is seen to be unreal when it is recalled that in all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort.

” Callinan J went on to explain that when persons conduct business overseas or even “travel to” or reside in or use the services of another country they are expected to comply with the laws of that country. Moreover: “The fact that publication might occur everywhere does not mean that it occurs nowhere. ”