Slashdot Mirror
Does Defamation Know Borders?
spam-it-to-me-baby writes: "Interesting court case going on down under at the moment involving a prominent Australian businessman who claims he was defamed by a Dow Jones article published on a web server in the United States. Prosecution is digging up an obscure 1848 judgement over what constitutes an act of publication to ensure the case is heard here rather than in the U.S. Dow's claiming the story was for a U.S. readership. The case continues ..." And since laws on what you can legally say aloud or in print vary greatly from country to country, please make sure your words are only available in pre-screened jurisdictions.
The US has already set precedents in this area by prosecuting non-US citizens for crimes committed outside of the US, who were then arrested and extradited to the US from a third country, see Howard Marks (notorious Welsh drug smuggler and all round top bloke) jailed in Florida, extradited from Spain for a crime in Pakistan, that involved smuggling drugs to Europe. The interesting bit is the fact that this is moving away from criminal prosecutions to civil.
As a point of interest, in the UK, truth is always a complete defence against any libel action. If a publisher can prove that what they said (wrote, etc.) was truthful, there is no question of libel. However, it is a risky option - if they fail to demonstrate that they were correct, damages are likely to be bigger.
I understand that fair comment is the more usual defence. I believe this means that provided what you wrote was a reasonable conclusion from your available information (and that you had made a reasonble attempt at research), then one is safe from a libel case. Of course, that statement has some rather important qualifiers, which contain the expense of libel cases.
I think that the real nastiness comes in when things are "alleged" in articles. Suppose A says that B has been convicted of crime Y. If B has, then there is no libel, and if B hasn't, that's relatively easy to prove.
Next, suppose that A alleges that B has committed crime Y many times, but is such a criminal mastermind that they have never been caught. How does one sort that one out? Under the broadest definition of free speech, B would have to prove that they'd never committed Y in order to win. However, there is this little principle called presumption of innocence (still around, despite the best efforts of various Home Secretaries, but that's another matter), so why should B be required to demonstrate that they are not a criminal? That then goes against presumption of innocence for A. It's a bit of a mess.
I'm not sure as to how that one is resolved in the UK, or anywhere else. And it might be different for civil and criminal offences. Libel, being a civil offence, is certainly subject to a different standard of proof from criminal cases.
Again, I don't know about the rest of the world, but the libel system in the UK is in need of a bit of an overhaul. It is extremely expensive to bring a libel action, but the damages can be ridiculously high (I understand that you can be entitled to many times more compensation if a newspaper libels you, than if the editor runs you down in their car, and loses you a leg). That is a cycle which can feed on itself. Some method (I'm unsure as to what would work) of limiting both costs and damages would be useful.
The poster's got it arse-about - the defending lawyer, Geoffrey Robertson, QC (from the Hypothetical programs) is citing the 1848 law to show that the 'publication' occurred in New Jersey rather than in Victoria, so that the case will be heard in the US. The original case is based about a nobleman who sent his manservant to get the paper - it was deemed to be 'published' when the manservant picked it up, rather than when it arrived at the nobleman's breakfast tray. Some strange allusion there to the HTTP request being equivalent to the manservant. Odd, very odd.
Secondly, there is still the issue of expense. If a particular virulent group of spammers in Britain are publishing defamatory nonsense about me, sure, I can sue them here in a Phoenix AZ court of law or there in Britain (I have correspondents in both country who would testify to publication in both places). But if I sued them here in Phoenix I'd end up having to sue them in a British court to enforce the judgement, and if I sued them there in Britain, I'd have to spend a bunch of time in London. Sorry, I don't like the dreary isles that much.
Saying that a web site can only be sued in the country where it is published gives free rein for liars in one country to defame people in other countries all they want, knowing that the people in those other countries aren't going to have the resources to travel to some dreary little island in the North Atlantic just to sue some moronic spammers. The current situation is not ideal -- it basically means that if I sue under my own laws, I end up having to sue twice to enforce a judgement -- but the alternative is no better.
-E
Send mail here if you want to reach me.
--
Secondly, this is a civil case - there is no 'prosecution', just a plaintiff (a claimant in English new-lawyer speak) and a defendant.
-- "It's a sad day for American capitalism when a man can't fly a midget on a kite over Central Park" - Jim Moran
If Australian libel law is anything like British libel law, then Dow Jones and Company will have a much harder time defending its actions. US Libel law is much friendlier to journalists.
The choice of venue could be the whole case here. You see the Us and Australia has vastly different legal positions on what constitutes libel. They also go about awarding damages in different ways.
... comment.
Specifically in the commonwealth (of which Australia is still mostly a part) defamation means simply publishing lies about me. That means if you write an article claiming I had a 12" dick which would stay up for hours at a time I could sue. In the US you would have to also make a negative inaccurate comment with malicious intent. In other words an American judge would tell me to laugh off the 12"
Also in the US the comment must be not only false and damaging but also believable. In other words you would need to say I have a 5" dick and am impotent. I would then need to show that this has something to do with our disagreement over some other matter, or your hatred of me.
In other words, depending on the facts in the case this herring might be all you need to tell the outcome. By contrast if the newspaper in question was in new Zealand this hearing might not take place since either side would be content to fight on the other guy's turf.
Worse yet Commonwealth courts tend to award costs as a separate payment from damages. I.e. If you beat me I pay your lawyer and you travel costs too. It may be called unfair but it dose cut down on the number of merit lesscases brought before our courts.
--= Isn't it surprising how badly I spell ?
Shouldn't the lawsuite be about werther or not DJ where right or wrong about their allegations?
If you print lies it shouldn't be about who you want to read it.
For example: Racist papers that are only intended for KKK members. Should these be allowed to write anything they like and can come up with just as long as they only let rasists read?
Does this only bother me?
// yendor
--
It could be coffe.... or it could just be some warm brown liquid containing lots of caffeen.
> And given the number of things said in various business magazines about businessmen around the world, and the relatively few lawsuits that make the news about them, most businessmen seem not to mind, apparently. Movie stars, on the other hand...
Possibilities (not exhaustive):
Law suits involving movie stars are more newsworthy.
Businessmen are more likely to negociate an out of court settlement to avoid publicity.
Articles about movie stars are more likely to be read by brainless members of the public who take anything they read at face value.
Movie stars careers are more sensitive to the opinion of brainless members of the public.
Movie stars have more money to spend on lawsuits, unfounded or not.
--
rant
Then again, is that really being reduced? *ponder*
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However, it would be a barrier to the defendant from being able to travel to/do business in Australia. ISTR that Australia is pretty anal about letting people with any kind of conviction (even one in a foreign country) into the country, which is ironic considering its colonial roots...
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If there are punitave penalties based on this charge and the defendant doesn't pay up, (s)he's guilty of contempt of court which is a criminal offence.
It's not unknown for the directors of a company to be held liable for the sins of the company. Quite apart from this, there's a precendent potentially being set where a real person could be sued by a foreign national and then they are barred from the country.
In any event, a company is often legally equivalent to a person; any criminal charge against it would prevent it performing any business in Australia, which would be a disaster for a multinational (or multinational-wannabe) company. That said, the company would probably spin off a subsiduary to do trade in the relevant country.
--
I think Douglas Adams (May he rest in peace. No, how about 'may he suddenly rise from dead and get back to writing those insanely hilarious books again!') said it best:
"There we British sat, poor grey sodden creatures, huddling under our grey northern sky that seeped like a rancid dish cloth, busy sending those we wished to punish most severely to sit in bright sunlight on the coast of the Tasman sea at the southern tip of the Great Barrier Reef and maybe do some surfing too. No wonder the Australians have a particular kind of smile that they reserve exclusively for use on the British."
How do you reconcile these statements?
Are you suggesting that pronouns can be overloaded gender-specific/gender-neutral, whereas nouns such as "actor" cannot?
Please explain yourself.
spawn_of_yog_sothoth
Additionally, he has written several highly-successful books on human rights laws, wrote a play (later turned into a BBC mini-series, IIRC) about one of the most famous obscenity trials he was involved in, writes occasionally for British and Australian newspapers, and hosted a fondly-remembered TV show that involved a large group discussing hypothetical scenarios about legal, moral and social issues.
Joeseph Gutnick, the plaintiff, is also a fascinating character. By profession, he is actually an orthodox rabbi. He has made and lost several fortunes out of Australian mining companies, and there have been persistent allegations that his fortunes have been gained by less than legal methods.
He has spent many millions of dollars supporting Likud and other right-wing parties in Israel, and has funded the expansion of some of the Jewish settlements that so enrage the Palestinians.
To top it all off, for the past three years he has been the president of the Melbourne (Aussie Rules) Football Club, which by Australian standards is the football club of a conservative, mainly WASPish, Melbourne "establishment". Whilst highly popular with the rank-and-file members of the club after personally funding the club with millions of dollars from his own pocket (very uncommon in Australian Rules football), and thus saving it from a merger with another club, he has managed to fall out dramatically with the members of the club's board, and resigned implying that the board was out to get him for his (domestic) political views and even that the board was anti-Semitic.
It is also worth noting that "Diamond" Joe Gutnick's financial situation is apparently very tight at the moment, so he is under pressure in a variety of ways.
So, all in all, there are some intriguing characters involved in this dispute, as well as the wider issues of defamation on the Internet.
Go you big red fire engine!
Any sufficiently advanced technology is indistinguishable from a rigged demo
--Andy Finkel (J. Klass?)
he popular opinion that "the US has laws ensuring more freedom than any other nation", is not always correct.
... these international, back door legal attacks can work both directions.
... whatever level of freedom we have now will be taken away by another, more oppressive regime elsewhere on the planet if this kind of "our laws apply to you over there" legal fiction is permitted to define our juristic reality. Distracting arguments over who is more or less free will become very moot in such an environment, as we will all become equally (and severely) oppressed.
Not any other nation (the Netherlands and others have much more freedom, both of speech and how one leads one's private life in general, and there are probably other examples as well, particularly since the enactment of the DMCA), but most other nations, which I think is probably still true.
Certainly in this example, the allowance for speech in the United States exceeds that of countries with British style rules of libel which basically amount to "you aren't allowed to say anything not nice about someone publicly" with a few exceptions thrown in to obfuscate that fact enough that people do not rebel outright. If the lowest common denominator of freedom becomes the internet norm through this kind of back door, international legal thuggary, then each of our freedoms becomes defined by the most oppressive regime on the planet, and none of us, in the US, in Europe, or anywhere else, will have any significant freedom at all. Would you like to see Bush and the American Religious Right defining obscenity on the internet in the Netherlands? That is the danger the previous poster is warning about
Yes, we'll be free to do what we're told or suffer the consiquences (and you would be surprised at how many Americans of religiously right leanings have used that very phrase to argue that their onerous restrictions don't infringe on the freedoms of others). However, I would argue that the freedom to do as one is told or [insert harsh penalty up to and including death here] is not freedom at all, and any definition which would say otherwise must also then imply that life under Stalin and Pol Pot was equally "free."
It is this danger that the poster correctly warns against
The Future of Human Evolution: Autonomy
Of course, now you have the problem that if it's cheaper to pay the occasional settlement than to force its workers to wear hairnets, there's no impetus for McBurgerJoint's to change their operations. Not that the U.S. system is that great either, it's just different. It seems to me that punitive damages should actually be higher in some cases, or at least scaled to the size of the company - McDonald's probably doesn't even notice paying out millions in a settlement.
Caution: contents may be quarrelsome and meticulous!
Your right to not believe: Americans United for Separation of Church and
Not that I necessarily support the FCC on this, but I have to point out that this isn't a new policy of the Bush administration. I used to listen to a morning radio show that practically had a direct debit to the FCC for their weekly fines. At least so far the FCC's actions are no worse than they were under the previous administration. And hey, you never know - Joe Liebermann could have been worse.
Caution: contents may be quarrelsome and meticulous!
Your right to not believe: Americans United for Separation of Church and
<TT>If a newspaper is distributed in Australia, even with a small circulation, it can still be defamatory in Australia. The medium is the (defamatory) message.
What are the consequences of this? Probably means we Australians will be blocked from American News Media sites in the future, as we are currently blocked from purchasing from some of the ebay sites.</TT>
[material excerpted from Alphabet to email by N.S. Baron]
... err.. brands are built on a reputation (do XYZ to be richer/sexier/famous) then you can see incentives for people controlling the spin. However, you have to be a little careful in applying historical cases as the situation can often be quite different from the basic facts which may resemble modern situations.
...
Just to give a historical perspective, around 1550 the stationers (shopkeepers repsonsible for arranging and distributing customer books) received a royal charter for exclusive rights to print editions of registered works. However, the Crown's main intention was a quid-pro-quo where they required the stationers to censor works before printing. Both the Church and State feared proliferation of blasphemous or seditios works with the widespread availability of printing. This monopoly (that no Man shall print any Book or Ballard, unless he be authorised thereunto by the King and Queen's Majesties Licence) led to a century of acts of censorship enforced through the willing complicity of the Stationers.
Historically the only thing authors/playwrights owned was the physical manuscript and originally copyright derived from the exclusive rights associated with producing a fair copy of this manuscript in the printer's possession. Since the traditional stationers and booksellers had a monpoly in printing they kept publishing rights rather than devolving back to author after a period to cover print-runs. However, the licensing act of 1662 for "preventing Abuses in Printing Seditious, Treasonable and Unlicensed Books and Pamphlets and for Regulating of Printing and Printing Presses" lapsed by the end of that century, dissolving the implicit contract between state and book industry. The Statute of Anne (~1710) though essentially a book-sellers bill, was the first legal document where authors got even a brief mention, but at least it recognsed authors as the original holders of rights. Progressively the concept that authors "owned" the original ideas in their heads and words were just descriptive clothing became widely accepted. This was a far cry from medieval era where divine inspiration was considered an expressive gift of god and thus and not controlled by an individual. However, the shift towards private property of published works also implied an obligation of truthfulness or more strictly speaking, authority. In fact, modern book contracts may have clauses asking the author to affirm that the written (non-fiction) text is "truthful". Of course the concept of "truth" can be rather debatable, e.g. with Samuel Johnson in compiling a "definitive" dictionary of English words.
However, though it is easy to "borrow" the gravitas of authority by quoting snippets from famous people and classics. Rearrangement and lack of context cues can quite often prove misleading. Libel, defamation, etc are direct consequences as with the cost of physically printing goes down, the effort is checking and verification goes up. If you look at top-notch journals (e.g. medical) the effort of cross-checking and insistance of independent peer review often meas it can be 2 or more years fore a submitted article gets finally published. Contrast this with the tabloid press and CNN and you can predict the disconnects, especially when you bring such written fluff into one of the most stringent semantic standards and investigatory spotlight of the law. Suffice to say that if truth in advertising and other academic standards (cough*bnchcrafting*cough) were imposed on the popular press, the volume of discourse would probably be significantly reduced. It is a rather tricky situation, when you have so many stages in the production process to ascertain precisely who deliberately (or otherwise) originated a piece of opinion. This may have a rather interesting analogy in GPL works as since you are required to put your name down to affirm copyright, people can trace you back if necessary (cough*sapam*cough). Contrast this with popular press which at times ressemble a gigantic Chinese whisper. Given that a lot of modern crap
Enough blabbing for now
LL
This is self-regulating.
If France sues the French subsidiary of Yahoo in an unreasonable way, Yahoo will simply pack up and leave. Nobody will fill their shoes. France either stops this behaviour, or ends up without an internet connection (or, a government sanctioned one at any rate). Either way, the world doesn't lose anything, because, who really wanted to talk to a bunch of arrogant censors anyways?
Ditto with Australia. If their courts allow them to punish a foreign company (by demanding payments to prevent seizure of local assets, presumably) then foreign companies will leave.
There's a reason nobody except oil companies does business in countries like Iraq and Afghanistan.
Yup. Same as the French are slowly (quickly?) reducing the number of companies willing to deal with them. It'll continue until the people demand otherwise.
I just can't wait until someone sues for access to content that has been blocked for their country, precisely because the provider had been sued for providing it...
Companies will adapt, to a point. Hence the word "unreasonable".
And the parent company can only be sued in some cases.
If Yahoo-France does X, and gets sued, then they pack up and leave, France has a case against Yahoo-Parent. But if Yahoo-France paid for X, and left, then Yahoo-Parent does Y, which comes into France on the Internet, France is without any recourse.
Or rather, it comes down to cases like this Aussie suing a US company for actions in the US, baseless and in the end, destined to lose.
The US is also the the place where radio-stations can get enormous fines for playing even the censored version of Enimem-songs. Is that freedom?
It is the new Bush-administration that tries to clean up obscenity and indecency.
This is no troll, the popular opinion that "the US has laws ensuring more freedom than any other nation", is not always correct.
Here is my source: Reuters.
He should just argue them down to a booting.
Don't forget disparaging the boot is a bootable offense!
but I'm pretty sure that if I were to
smoke marijuana in the Netherlands (where it's legal) and then return
to the US (where it's illegal), I wouldn't be arrested.
I'm pretty sure that if I were to smoke marijuana in the US (where it's illegal) in a private place without any police officers or narcs, I wouldn't be arrested.
It's not because they couldn't arrest you, it's because they wouldn't know that you commited a crime, would have no way of proving it and in most juristictions really can't be bothered busting people for merely smoking in private (as opposed to growing or possessing large quantities).
- bridgette
if one publishes an article in a US newspaper, the intended audience is the US. If someone publishes on the Internet, the intent can not be limited to physical borders.
Well, there's still a vastly different standard. In Canada, where I live, 'truth' is an absolute defence against libel or slander suits. This isn't true in many countries, and even in some U.S. states.
Are you really suggesting that I should live down to some other jurisdictions statutes which imply that fair and accurate comment which MAY injure someone's reputation is actionable? No thanks, I can't live by your standards, which imply very little except a stifling of free speech (of which Canada actually has very little).
>or if I were to write some software which decrypted audio-visual content in a way that was illegal in the US but legal in Australia (alas this is not the case) and post that on my website? Would I be liable to prosecution under US law?
yes. Ask jon johansen, who put up DeCSS in Norway but was sued in the US.
//rdj
No one can understand the truth until he drinks of coffee's frothy goodness.
--Sheikh Abd-Al-Kadir, 1587
Big Mexican banker fingered by investigative journalists as major drug trafficker loses libel suits in Mexico, then turns around and sues in New York State for comments journalists made at public forums in New York **and** on a Mexican-based investigative website called NarcoNews.com. Judge has yet to rule on the jurisdiction question.
0 .html
http://www.wired.com/news/politics/0,1283,43583,0
...disavow all knowledge...
First of all, as another poster pointed out, the 1848 ruling was brought up by the defendant to try to get it under US jurisdiction.
Second, this case would seem to have repercussions relevant to the French Yahoo! case...
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
Actually, I believe it's explained by their colonial roots.
They are trying desparately to clean up their reputation.
I had heard a brief report on Australian history on National Public Radio awhile back where an Australian was saying that Australians don't much like to talk about their roots and that it's referred to as "the stain".
Did a quick web search and I just found this, which may be related to the Radio show I'd heard (this is PBS, which is TV, not NPR, but they often share content).
I'm sorry if I drew too much of a conclusion from my very limited understanding of a complex issue. Didn't mean to offend.
Imagine a world where various interest groups manage to create such terror of free speech that it actually becomes true that saying just about anything, particularly complaints about stifled speech, could trigger a massive breakdown in the social order, riots in the streets and genocide of historically persecuted groups such as the wealthy and powerful.
Seastead this.
If he wins, it basically means that citizens of one country can be held accountable to laws from any country in the world!
The US already implements laws, particularly relating to third country trade with Cuba, which result in the conviction of non-US nationals in US courts for acts illegal under US law only and which were carried out wholly outside the US.
Dan's point therefore is a little late...
"Has not been used" is relative - a number of UK and Canadian businessmen and others have been declared as undesirables and refused admission to the US as a result of Helms-Burton...
Does that mean that a company has to follow the rules of the most restrictive country that it does business in?
Yes. Lets take another example. Suppose I'm living in a country which does not have laws against murder and I hire a hitman to kill you. I'm entirely safe from prosecution, because I haven't broken any laws in the country where I live.
If, however, I decided to catch a plane to the US, I could (and probably would) be arrested as soon as I stepped off the plane, because the murder I ordered was illegal in the US, even if it wasn't in the jurisdiction where I committed the act.
The parallel is exact; the web server was in the US, I was in my fictitious murder-is-legal nation; an act was committed (libel) which was illegal in Australia, an act was committed (murder, or perhaps conspiracy to murder) which was illegal in the US; Dow Jones established offices in Australia, I stepped off a plane into US-controlled territory.
Tarsnap: Online backups for the truly paranoid
Imagine if China were hauling WSJ into court for distributing articles on its American website that hadn't been approved by Chinese censors. And yes, the Dow Jones (parent company) does business in China.
Well, if that happened, then the WSJ would simply pull their staff out of China. Simple solution really, if the Chinese government won't allow something in China, don't take it into China.
I fail to see what the problem is.
Tarsnap: Online backups for the truly paranoid
And since laws on what you can legally say aloud or in print vary greatly from country to country, please make sure your words are only available in pre-screened jurisdictions.
As long as you do not conduct business in France/Australia/US/[insert name of country which is stepping close to the bounds of extraterritoriality here], this isn't a problem. On the other hand, it is always true that if you are conducting business in a nation you should know and abide by the laws of that nation.
For example, some nations have laws restricting ownership by private citizens of more than a given quantity of gold. Some nations do not. If you're carrying around fifty pounds of gold, you'd better stay out of countries where it is illegal... but as long as you stay out of said countries, you're entirely safe, because even if they attempted to extradite you they would fail (under most, if not all, extradition treaties, you cannot be extradited from a country if you have not committed an act which would have been criminal in that country).
Yahoo conducts business in France. Yahoo was breaking French laws. Bad Things happen to Yahoo. Dow Jones conducts business in Autralia (it may not be their primary place of business, but they conduct business there all the same). Dow Jones is accused of breaking Australian laws. Dow Jones has to face trial in Australia. I, on the other hand, reside in Canada, and will likely never go to Australia in my entire life, so I can completely ignore Australian libel/porn/encryption/etc laws.
I really fail to see what the big deal is here.
Tarsnap: Online backups for the truly paranoid
OK, an extreme example, but as we know laws are frequently twisted by people with the capital to pursue such cases. Surely if this goes ahead it sets a precedent for people in other countries to try US citizens outside the US. I'm guessing the Chinese government will be paying attention.
Great joke!
But Bush hasn't done anything to put him into the same category as Nixon yet. Then again, maybe by the time he dies...
"People who do stupid things with hazardous materials often die." -- Jim Davidson on alt.folklore.urban
If McBurger fails to follow the relevant health and safty codes, then they will be closed down.
This is a much greater deterent then any fine or form of punitive damages.
I wish I could think of a witty Sig. Sigh!
In Australia, we do not have any form of punitive punishment. All you are entitled to is your out of pocket expenses plus loss of earnings plus some compensation for pain and suffering.
That's why we don't see these stupid million dollar payouts for finding a hair in a burger.
Judges also don't look to fondly on people who waste the courts time with frivolous actions. What we therefor get is only people with a legitimate gripe taking court action.
I wish I could think of a witty Sig. Sigh!
What Dow is trying to say is that they can say what they want in the U.S.A. and not be subject to the stronger defamation laws of Australia. That's really what it comes down to in the, I understand proving defamation down under is a easier task than in the USA. Is that a good thing? Well, yes and no. It tends to help make sure people dont shoot off so quick. But OTOH, freedom of speech could be curtailed. Should be a good case to watch and also clarify a few issues on publishing on the Internet, at least Australia wise.
What I do find a pity is that it takes test cases liek this to clear up issues like this and often it doesnt go the way it should. Napster is the prime example. I dont believe a person rpoviding a transportmedium should be held accountible for the actions of others. It's a bit like sueing the Postal Service because you post photocopies of copyright works to 100's of people. Who committed the crime, you or Napster?
Geoffry Robertson has done this before in other high profile cases, dragging up some interesting precident and presenting it to the court. Quite often it wins as he quite clearly does good research. In Australia law, Britsh Law does count as a precident. So does USA law too, but to a lesser degree. It's not binding of course, but precidence is an important factor when the law (be it Common or ordained in Act's of Parliment) is unclear.
"Old Rallydrivers never die - they just fail to book in on time"
Whahahaha!!! Right. Ask PRZ about freedom in the US. But sure, you have a point, there aren't too many countries in the world that allow you to have murder weapons in your house so that you can shoot your neighbor if you want to. Or to let your children shoot themselves for that matter.
Come on, get a life! Try to look a little further than your own borders. Most civilised countries don't even have the death penalty anymore, but the US gives their judges the freedom to kill.
Woefdram, l'apprenti sorcier
Bush thought that sounded pretty good, so the devil opened the first room. In it was Richard Nixon and a large pool of water. He kept diving in and surfacing empty handed. Over and over and over. Such was his fate in hell. No, George said. I don't think so. I'm not a good swimmer and I don't think I could do that all day long.
The devil led him to the next room. In it was Newt Gingrich with a sledgehammer and a room full of rocks. All he did was swing that hammer, time after time after time. No, I've got this problem with my shoulder. I would be in constant agony if all I could do was break rocks all day, commented George.
The devil opened a third door. In it, Bush saw Bill Clinton, lying on the floor with his arms staked over his head, and his legs staked in a spread eagle pose. Bent over him was Monica Lewinsky, doing what she does best. Bush took this in disbelief and finally said, Yeah, I can handle this.
The devil smiled and said OK, Monica, you're free to go.
Woefdram, l'apprenti sorcier
More seriously, I still think the US system is superior. (OK, I'm an American, so maybe it's just what I'm used to.) By forcing proof onto the defendant, you definitely chill speech. The thrust of, say, the First Amendment is that more and open information flow is healthy for a democracy. From the viewpoint of American political theory, it is much safer to err on the side of too much published, rather than too little.
Your mileage may vary, of course, depending on your cultural norms. But considering the tremendous advantage possessed by the wealthy and the powerful, and their overriding interest in quashing uncomfortable truths, I'll accept the occasional mis-truth rather than see even one truth snuffed out.
The Mongrel Dogs Who Teach
Blockquoth the poster:
First, as an American, I view it thus: We don't have a "law giving" me freedom of speech. I have that as a fundamental and inalienable right, just as the poster does and indeed all people do. In the US, we have laws (esp. the First Amendment) that helps safeguard that right.Second, since it is a fundamental inalienable right of all humankind, we don't say it gives us the right to say anything to anyone. It gives anyone these rights; again, they are merely better protected in the US.
Third, as has been pointed out, the First Amendment is not a total shield. Even in the US we have libel suits and slander suits. (I'm not sure we have defamation suits, per se.) Such speech, the courts have ruled, is not protected by the First Amendment. But US laws on slander and libel are generally recognized to favor the defendant, primarily because the litigant must show that the statements are untrue. Other nations (at least, the UK and so, perhaps, Autralia) have no such requirement.
Let's look at that more closely, shall we? US laws says, you can't make up awful statements about someone, publish it, ruin their lives, and get away with it. UK law says, you can't discover the truth publish it, ruin their lives, and get away with it. As far as I'm concerned, the US gets the points for this one. If you've committed some heinous act, then you're the one who's ruined your life. It's not my fault just because I make it known. If you don't want to be painted with the brush, don't do the act.
So the issue isn't quite First Amendment after all. It's the issue of venue: where will the burden of proof lie? And despite what the poster said, that is a statement about the merits of the case. If the standards for defamation differ, then of course where the trial is held will help determine if defamation occured.
The Mongrel Dogs Who Teach
Claus
Don't think that it would not be possible the other way round, i.e. an Oz publisher sued in the US: The problem here is with international private law, especially in the context of torts and the WWW.
The international private laws of most countries (yes, international private law is actually national law, which says which cases can be brought to national courts any the law of which country is to be used), tend to be very inclusive, especially wrt torts: Usually, you can be sued wherever any damage occurs.
Normally, this does make very sense: As a victim, you don't want to sue someone abroad when the damage has occured here: This normally includes cases such as car accidents with foreigners or your foreign neighbour shooting your sheep. ;-)
However, the WWW is different: Being a broadcast medium, the damage caused by defamation, IP infringment, etc., can occur anywhere. So you can also be sued anywhere.
This result seems very stupid, of course: You can be sued in countries you've never known that existed. (It even gets worse with international criminal law, which is similarily inclusive: Go to a country you've never been there before and get arrested for something you've done 10 years before in a country where it was completly legal.)
What we really need is a international treaty that limits the jurisdiction to a managable set of countries: The country where the person comitting the tort has actually acted, the countries where the servers she controls are located and, maybe, for some torts such as libel directed at a single person, the country where this person lives (this is problematic, however, maybe you should only have jurisdiction there but not use the law of that country).
Claus
Robert Maxwell, a wannabe Rupert Murdoch, crook and generally all-round thug (now dead, that's why I can describe him as such) went to extraordinary lengths to sue publications for libel.
In the case of an American magazine published solely in the US, he got one of his UK employees to take out a subscription and then claimed the publishers had "published in the UK".
His final flurry of writs were designed to stop the press inferring that he had systematically raided his companies' pension funds to prop up his failing businesses. Shortly thereafter, he dropped off his provate yacht and drowned; after that it was revealed that most of his companies' pension funds had disappeared.
There's a moral in there somewhere, bit I'll leave that for others to find.
-- Free Luna!
There sure are a lot of clueless people posting comments to this article.
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Petty theives were sent to Australia. The embezzlers, murderers, and rapists were imprisoned in England.
You're a troll, I know, but I wanted to make the point.
Troll Alert! Beep Beep Beep!
This is a troll. Nothing to see. Please move on.
The "Hague Convention" aims to make this kind of situation the norm. Signing countries agree to enforce foreign judgements. This is law made for the benefit of lawyers and lawyers only.
Free speech? Let's hear what Afghanistan has to say about that. Better start shutting down those servers.
Reverse engineering allowed where you live? Not in the US. Prepare to go to jail.
Software patents are not threatening open source development in your country? Guess what, US patent law now reaches out to you, too.
This is serious. More information is here:l
http://www.cptech.org/ecom/jurisdiction/hague.htm
The "Hague Convention", should we fail to stop it, will generally make it mandatory that countries enforce foreign judgements. Don't be too proud of your freedom. Many people wouldn't like your "DMCA" and the US view on software patents introduced into their countries' effective law through the backdoor. More information is here:l
http://www.cptech.org/ecom/jurisdiction/hague.htm
If this article had been published in the WSJ or NY Times, there wouldn't even be a question of audience, even if the newspaper had been shipped to Aus. which I'm sure happens all the time. Sooooo.... because the medium of transmission changes, this guy has a case? Whatever.
He who joyfully marches in rank and file has already earned my contempt. - "Big Al" Einstein
If I were to set up a website, hosted in Australia, that slandered an American company, should I be sued in the US or Australia?
What if the company didn't trade in Australia?
...or if I were to write some software which decrypted audio-visual content in a way that was illegal in the US but legal in Australia (alas this is not the case) and post that on my website? Would I be liable to prosecution under US law?
Except that quite rightly, the Helms-Burton act caused international outrage when it was implemented, and as far as I know has never been used. In fact, it backfired in that it caused Canada to increase ties with Cuba with regards to trade and diplomacy.
Such laws are merely another sign of the folly of big government.
... because it would be an outrageous blow for both freedom and the ability of a nation to determine its own laws if this man suceeds in his suit against Dow.
If he wins, it basically means that citizens of one country can be held accountable to laws from any country in the world!
It's a precedent that should not be set, because it's a dangerous first step towards a loss of sovereignity.
And since the US has laws ensuring more freedom than any other nation, this means that we, as US citizens, are losing our freedoms through this judicial back door! The Constitution is already at the mercy of our Supreme Court, but this opens up the door for any other nation's courts to strip our people's freedoms away.
This could be a disaster if it goes through.
This case does not surprise me in the slightest. And I hope Gutnick loses. How can he sue a US company? Wota wanka.
Umm... no...
Freedom of speech is not omnipotent. You can't yell "Fire" in a crowded movie theater, you can't openly publish things limited by the FOIA or under National Security, and the 1st Amendment does not protect someone from publishing libelous, slanderous and/or defamatory statements.
The 1st Amendment was written to allow for the open passage of speech, criticism of government without fear of retribution by that government, and other reasons.
And given the number of things said in various business magazines about businessmen around the world, and the relatively few lawsuits that make the news about them, most businessmen seem not to mind, apparently. Movie stars, on the other hand...
Kierthos
Mr. Hu is not a ninja.
Recasting personal rights, law and justice as global entities will happen, and in the brave new world the bravest are going to be those with the balls (and/or money) to duke these things out in court. Perhaps the Internet's greatest contribution to history will be that it created opportunities to break down international boundaries, by making them more and more inconvenient for the people with the big bucks.
It's easy! Just follow these simple steps:
1) Get an ISP.
2) Post a website with content that's forbidden in another country.
Examples: "Islam sucks!" "Australian businessmen raped my daughter."
[Safety tip: Avoid saying things that are illegal in your own country]
3) Wait for wacky results (court summons from Caracas, excommunication notice, gibberish-spouting gunmen in ski masks shoot up your minivan, etc.)
4) Write to your congressman, urging him/her to oppose that new extradition treaty with Libya.
Have fun!
Whether this argument holds or not ... is up to the courts to decide.
See the article in the Sydney Morning Herald.
> (Why can't English have an official gender
> non-specific pronoun?)
It does. It's the word "he".
"Best female actor award." I wanna slap someone.
I am for the complete Trantorization of Earth.
Although I'm not standing up for laws forbidding free people from accessing drugs, Manual nevertheless aided in drugs getting into the US, and as such is just as responsible as if he had launched a bomb into a city from offshore.
I am for the complete Trantorization of Earth.
First, as an American, I view it thus: We don't have a "law giving" me freedom of speech. I have that as a fundamental and inalienable right, just as the poster does and indeed all people do. In the US, we have laws (esp. the First Amendment) that helps safeguard that right. I can't hear that again. Nobody has any "fundamental and inalienable right". All this rights argumentation has already proved itself of being some fairy tale. Everybody can do whatever he wants as long as he is willing to bear the consequences. And even if he is not willing to bear the consequences he can do whatever he wants, he has to bear them anyway.
The only thing you can say is that it has some advantages to treat the people in a fair way, or at least let them believe to be treated fairly. It has some disadvantages as well. People being treated fair for a long time believe they have the right to be treated fair.
Just some examples: the right to eat: what is it for, when there is just nothing there to eat? the right to be physical unharmed try to convince a the 3 inch hailstone falling on your head of that, or the mother whose child you just ran over (your right and the childs right) the right to say everything you want bad idea in snowy mountains, in an election campaign, in front of your boss or Tom Cruise the human dignity is untouchable Jerry Springer?
Just because I can imagine doing a hippopotamus, doesn't mean I'd like to do it.
It has nothing to do with fearing the consequences. It has just something to do with living together with other people.
Just because I can imagine doing a hippopotamus, doesn't mean I'd like to do it.
Nobody has any "fundamental and inalienable right". All this rights argumentation has already proved itself of being some fairy tale. Everybody can do whatever he wants as long as he is willing to bear the consequences. And even if he is not willing to bear the consequences he can do whatever he wants, he has to bear them anyway.
The only thing you can say is that it has some advantages to treat the people in a fair way, or at least let them believe to be treated fairly.
It has some disadvantages as well. People being treated fair for a long time believe they have the right to be treated fair.
Just some examples:
Just because I can imagine doing a hippopotamus, doesn't mean I'd like to do it.
In the case discussed, the company being sued is not Australian, it is American and happens to be doing some business in Australia. I'm not sure what happens in that case, but your analogy isn't a really accurate description of what's going on here.
You can't turn this into an ani-Americian flame war because that's not what it's about. US law protects business people from defamation just like ever other country. Also, I'd like to think that it would not matter where the trial takes place. The man was either defamed or he wasn't. What is being questioned here are borders on the internet. A ruling in this case should set precidence internationally. I think that if the defimation suit is justified then Gutnick should be given compensation for the harm the article has done. It shouldn't matter whether this was published in america on american servers. He obviosly had american business dealings or else the Dow Jones would not have written the article.
I imagine these kind of cases will have interesting sequels that will redefine international law for times to come.
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The big differances in national laws of different nations will make it virtually impossible for internet companies to stay on the safe side of law in all the countries where their pages might be viewed. With more and more of these lawsuits hitting persons, companies and even governments this is going to provide for some interesting legal battles.
The whole of internet is going to cause some interesting shifts in international law of which the French Anti-Nazi case and this new australian businessman case are just the first examples.
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Living is a way of life
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"The chances of a demonic possession spreading are remote -- relax."
I doubt he was [defamed], else he wouldn't be trying to weasel it to a local jurisdiction.
That's kind of like saying that a murder suspect must be guilty because they want a lawyer that will represent them. (Why can't English have an official gender non-specific pronoun?)
The Australian businessman may feel that justice will be better served in his country (which probably means that he thinks he is more likely to win... but my point is that he may very well have legitimate reasons).
It is a miracle that curiosity survives formal education.-Albert Einstein
Imagine if China were hauling WSJ into court for distributing articles on its American website that hadn't been approved by Chinese censors. And yes, the Dow Jones (parent company) does business in China. Would all you people supporting the prosecution in the Australian case support this hypothetical one? The most important issue I see in this case, and there have been others like it, is a matter of jurisdiction. Can Australia haul the WSJ into an Australian court because it made a post on servers located in America? If this court case proceeds and others like it become commonplace, I could hardly imagine the chilling effect it would have. Some people have said that since Dow Jones does business in Australia, they have to comply with all Australian laws regarding the dissemination of information. WHAT WOULD THIS MEAN IN PRACTICE???? Well, we could take the yahoo approach and block any australian we can find from viewing the non-australian version of a page. Oh, and we would have to do this for other countries too.... There's the Australian page that never criticizes anyone, there's the French page that doesn't make any references to the WWII german memorabilia, there's the special Chinese version which kisses the ass of the Chinese government. Oh, and it's not the chinese government which would be censoring the page, it would be the WSJ! Or, dow jones could have to drop to the lowest common deniminator, providing everyone with the same shitty version that passes muster in all countries. But this new precedent could move far beyond large corporations. We live in a globalized world, and I could see any small company that has an online website that does some small level of business getting hauled into court. If you want borders to block the flow of information, for companies and individuals to operate only within national borders, then hope the Australian court makes a decision along the same lines as the French.