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Jurisdiction on the Internet - 1
It confirmed the long held common law conflict of laws rule that the applicable law in the case of torts is the law of the place of commission of the tort and that there were no reasons why that rule should be changed for the Internet.
It was argued by Dow Jones that because the Internet "enables inter-communication using multiple data-formats ... among an unprecedented number of people using an unprecedented number of devices [and] among people and devices without geographic limitation", a single publication can be downloaded anywhere in the world, over which the publisher has no control whatsoever. This is quite different from other media like newspapers, in which case a publisher could limit issues to certain places only.
Dow Jones contended, therefore, that it was more desirable that there be a single law governing the conduct of a person who chooses to make material available on the World Wide Web, such that the publisher of the material should be able to govern its conduct according only to the law of the place where it maintained its web servers.
In other words, it invited the High Court to treat the Internet as a special media, requiring special laws, harping back to the early day of the Internet when it was argued by some commentators that special rules akin to the international laws that apply to outer space should apply.
The alternative, it was argued, was that a publisher would be bound to take account of the law of every country on earth, for there were no boundaries which a publisher could effectively draw to prevent anyone, anywhere, downloading the information it put on its web server.
The High Court declined that invitation and held that the problem of widely disseminated communications is much older than the Internet and the World Wide Web. The law has had to grapple with such cases ever since newspapers and magazines came to be distributed to large numbers of people over wide geographic areas. Radio and television presented the same kind of problem as was presented by widespread dissemination of printed material, although international transmission of material was made easier by the advent of electronic means of communication.
Gleeson CJ observed that: “It was suggested that the World Wide Web was different from radio and television because the radio or television broadcaster could decide how far the signal was to be broadcast. It must be recognised, however, that satellite broadcasting now permits very wide dissemination of radio and television and it may, therefore, be doubted that it is right to say that the World Wide Web has a uniquely broad reach. It is no more or less ubiquitous than some television services.”
The High Court concluded that since, in the case of defamation, it is to be located at the place where the damage to reputation occurs, ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct. In the case of material on the Web, it is not available in comprehensible form until downloaded to the computer of a person who has used a web browser to pull the material from the web server. 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.
Since Mr Gutnick only had a reputation to protect in Victoria, where the material was downloaded and not in New Jersey where Dow's server was, the place of commission of the tort for which Mr Gutnick sues is then readily located as Victoria. That is where the damage to his reputation of which he complains in the action was alleged to have occurred, for it was there that the publications of which he complains were comprehensible by readers. It was his reputation in that State, and only that State, which he sought to vindicate, and so it was held that it was there that he ought to be able to take action.
While this case is clearly significant in respect of defamation actions and more so because the High Court of Australia enjoys the status of highly persuasive authority in many common law jurisdictions and especially so in England and Wales, it has ramifications in other areas of the law including the law of malicious falsehood, copyright and contempt because the law of defamation has some elements in common with them.
Louis Joseph is at Kaltons, Property & Internet Lawyers.
Email louis.joseph@kaltons.co.uk.
See also the report of a recent Irish case, USA Rugby Football Union Limited -v- Ivan Calhoun, also relating to the issue of jurisdiction, by Louise Gallagher, of Eugene F. Collins, here.
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