The position in Australia

The decision of the High Court of Australia in Gutnick v Dow Jones1 in November 2002 sparked media controversy and alarm among online publishing groups. Joseph Gutnick, a Victorian businessman, commenced defamation proceedings in Victoria against Dow Jones, a US-based news publisher, over an article published in Dow Jones' Barrons magazine. The article was published both in print and online versions. The majority of subscribers to the magazine were located in the US, though a small number of subscribers in Victoria also received the magazine in hard copy or viewed the article online.

Dow Jones sought to stay the proceedings in Victoria on the basis that Victoria was not the proper forum to hear the dispute. This action was resisted by Mr Gutnick. The central issue in the matter was where the online article was deemed to be 'published'. Dow Jones sought to reformulate the law of defamatory publication by arguing that publication via the Internet should be deemed to occur in the place where the material is uploaded on to the Internet and that dissemination of material via the Internet should be treated as a 'single publication' emanating from the jurisdiction where the material is placed online. Dow Jones submitted that an alternative approach could lead to unlimited liability for Internet defamation in countless jurisdictions across the world. In reply, Mr Gutnick relied on established common law principles relating to publication for the purpose of defamation law, namely that publication of defamatory material occurs in the place where it is read and comprehended by the reader. Mr Gutnick invited the High Court to adapt this principle to the Internet by ruling that the article was published in the place where it was read and comprehended (that is, downloaded) by the Internet users in Victoria (and elsewhere).

The Australian High Court unanimously accepted Mr Gutnick's submissions and ruled that publication of material on the Internet occurs for the purpose of defamation law in the place where the material is downloaded and comprehended by Internet users. This meant that Mr Gutnick could continue his proceedings in Victoria as opposed to having to sue in the US, where the First Amendment constitutional right to freedom of speech can make recovery in defamation actions more difficult.

The position in the UK

The English High Court decision in Harrods v Dow Jones,2 delivered in May 2003, raised similar issues to those before the Australian High Court in Gutnick v Dow Jones. Harrods, the exclusive London department store, had issued a press release revealing plans for a proposed float of the company. Dow Jones received the press release and published an article headed 'The Enron of Britain', which Harrods alleged imputed that Harrods was distrustful in its corporate disclosures and, if listed publicly, would prove to be 'Britain's Enron', defrauding and deceiving investors on a huge scale. The article was published in the Wall Street Journal printed edition as well as on Dow Jones' website, which was accessed by a relatively small number of Internet users in the UK. Harrods commenced defamation proceedings in England and Dow Jones sought a stay of the proceedings on the basis that England was not the proper forum to hear the dispute.

The High Court found that England was an appropriate place to hear the dispute and refused to stay the proceedings. The Court followed the Australian decision in Gutnick v Dow Jones and several other British Internet cases in holding that an online article was deemed to be published where Internet users downloaded, read and comprehended the article. In so doing, the Court reaffirmed that the 'single publication' doctrine does not apply in English law. While the Wall Street Journal's primary publication was in the US, English law recognised a separate publication within the jurisdiction of the English courts each time the material was read and comprehended in England. The English position is therefore consistent with the law in Australia.

The position in the US

Decisions of US courts have been at odds with judgments in the UK and Australia. On 19 May 2003, the Supreme Court of the United States rejected an application for leave to appeal against a decision of a United States Court of Appeal, Young v New Haven Advocate,3 which had held that defamation proceedings relating to material published online by newspapers in Connecticut could not be commenced in Virginia. Two Connecticut newspapers, the New Haven Advocate and the Hartford Courant, had published a story about the State of Connecticut's policy of housing prisoners in Virginian institutions and allegedly defamed the warden of a Virginian prison (a Mr Young) by implying that he was a racist who encouraged the abuse of inmates by guards. The articles were published in the newspapers and were circulated in print and online. Several subscribers read the article online in Virginia and Mr Young issued defamation proceedings in Virginia against the Connecticut newspapers. The newspapers filed motions to dismiss the actions on the basis that the Virginian courts lacked jurisdiction.

The United States Court of Appeal held that the Virginian courts did not have jurisdiction over the Connecticut-based newspapers because the newspapers did not 'manifest an intent to aim their websites or the posted articles at a Virginian audience'. The Court of Appeal followed its previous decisions which had stated that a plaintiff would need to prove that an out of state defendant's Internet activity was expressly targeted at, or directed to, the forum state in order to establish jurisdiction in the courts of that state. In this case, even though the warden had allegedly suffered damage to his reputation in Virginia as a result of the articles, the evidence showed that the newspapers had intended to direct the publication at a Connecticut audience, despite the article being accessible online in other jurisdictions.

This decision is consistent with the 'single publication' doctrine which has been rejected in Australia and the UK.

Implications for Internet publishers

The law regarding jurisdiction in Internet defamation disputes is still evolving. In Australia and the UK it is clear that the courts will have jurisdiction to hear defamation cases where online material, which has emanated from outside jurisdictions, has been downloaded and read in Australia or the UK. In contrast, US courts clearly favour declining jurisdiction in online defamation cases relating to material loaded onto the Internet outside the jurisdiction, except where there is a clear and manifest intention to publish the material online in the local forum. How the law develops in other jurisdictions remains to be seen.

Internet publishers need to carefully monitor and be aware of the differences in laws between the various jurisdictions in which online material may be viewed so as to manage their exposure to potential liability. While the observance of defamation laws in multiple jurisdictions may seem like a prospective nightmare for Internet publishers, practical factors may mitigate the problem to some extent. For example, liability is only likely to arise in jurisdictions where a plaintiff has a reputation to be damaged.

References
1. [2002] HCA 56
2. [2003] EWHC 1162 (QB)
3. 315 F 3d 256 (4th Cir. 2002)