Golden Joe's Big Win Revisited

Created: Wednesday, 18 December 2002 Written by Correspondent
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Yeah, so I ripped this article, but it's so critical to freedom of expression on the Internet that is should be bellowed from the proverbial rooftops!

A dark day for the internet
Editorial in The Australian; 11December 2002 "THANKS to the internet, anyone anywhere in the world with a modem and computer can download yesterday's High Court judgment in Dow Jones & Company v Gutnick. There may not be anything in the 55-page judgment that would be defamatory in any of the 200 or so nations of the globe. But our High Court judges should now be more careful what they say in their speeches posted on the High Court website. They should be wary of saying anything derisory of Zimbabwe's Robert Mugabe, of Malaysia's Mahathir Mohamad or of any of the litigious-happy ruling elite of Singapore (that being a real danger in the transit lounge on the way to human rights and international law conferences abroad).

For the High Court judges yesterday ruled 7-0 that Victorian businessman Joseph Gutnick had the right to sue media company Dow Jones in Melbourne for an allegedly defamatory article uploaded in the US to Barron's Online on the website. Only a few hundred subscribers in Melbourne had read the article. But as four of the judges wrote: "It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed."
That's right. One of the world's leading financial news services posts an article on its website in New Jersey, but "publication" ? and hence liability for defamation ? is deemed to be anywhere in the world where the article is subsequently downloaded and read by an individual reader.

All this high legalism may be beautifully consistent with defamation law flowing back, as stressed in the judges' decision, to an 1849 case involving the manservant of an English duke dispatched to procure a back issue of a small-circulation newspaper. Some of the judges, particularly Michael Kirby sensed that their judgment infringes their liberal leanings and clashes with the concept that the freer flow of information made possible by the internet is one of the great hopes of the oppressed of the world to overthrow their tyrants. Others, such as Ian Callinan are disturbingly censorious in dismissing the value of free speech, the market for ideas and the right of individuals to make up their own minds about what they read or hear. But from Kirby to Callinan, the High Court judges remain entrapped by the arcane art of the common law and the inglorious history of defamation law as a tool of the powerful.

Defamation law always has been fashioned to the technology of the times, for instance allowing early governors in NSW to clamp down on dissident owners of printing presses. But now, anyone can own an electronic printing press and distribute their internet scribblings anywhere in the world. It took more than a century for the High Court to overturn terra nullius. How long will it take for the High Court to properly comprehend the new world of the internet?"

posted by Larry Loudmouth