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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.
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.
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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 ?
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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Much as I hate racism, if you want freedom of speech, you must allow racists to express their views. To that extent, saying/writing "I hate blacks" is allowed under freedom of speech. Actually discriminating against blacks is not allowed under various equal opportunities laws.
BTW, feel free to s/blacks/$ETHNIC_GROUP_OF_CHOICE/g; the meaning is the same.
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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.
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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."
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?)
From what I understand, the burden of proof is a key difference between UK and US law regarding slander/libel.
After observing the McLibel case off and on (and from a safe distance, here on the other side of the pond), I can tell you that in order to sue someone in the US for slander or libel, the burden is on the plaintiff to prove two things. First, the plaintiff must prove that the allegations are false. Second, the plaintiff must prove that the defendant *knew* (or should have known, given a reasonable expenditure of effort) that the allegations were false, and hence made them maliciously. In the UK, the system appears to be the complete opposite. There, the defense available appears to be the truth of the allegations - the burden is on the defendant to *prove* that what they alleged is, in fact, true.
In other words, in the US, if you take some steps to investigate what you are saying, and you can reasonably believe that what you are saying is true, you're okay as far as civil law is concerned. If I allege that you are a wife-beater after being told so by your brother, your employer, and your priest, in the US, I'm probably okay, even if it later turns out to be untrue. In the UK, the burden is on me, the defendant (when you sue me), to *prove* that, on at least one occasion, you did actually beat your wife.
The moral? Given the choice, try to get sued for libel or slander in the US rather than the UK - at least that way, the burden of proof is on the person/entity suing you, rather than you. I'm guessing (but I don't know and would appreciate knowledgable comments from Aussies) that the Australian method of dealing with slander and libel is more akin the the British way than the American way. Hence, it should be no surprise that DJ wants to be tried in a US court.
The funny thing about McLibel is, it never would have gotten anywhere in the states. But in the UK, McDonald's, a large multinational corporation, was essentially able to try to use the libel laws as a way of harrassing and silencing its critics. Unfortunately for them, and fortunately for advocates of *anything* in the UK, it turned into a PR disaster for them. I don't much agree with what was alleged about McD's by those folks, but, dammit, people ought to have the right to say things that they truly believe in. If they're wrong, debate them, dammit - don't try to sledgehammer them into shutting up...
ABSURDITY, n.: A statement or belief manifestly inconsistent with one's own opinion.
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
[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.
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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!
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?
As much as I hate to say it... yes. Freedom of Speech should be blind.
Doesn't make it any better though. *sigh*.
Simon
Coming soon - pyrogyra
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
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.
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.
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"
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
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
...
I somehow think this would not fly. I am reminded of the French law suite vs Yahoo regarding Nazi materials.
But that was France where they are a bit daffy anyhow.
Check out the Vinny the Vampire comic strip
"It is a greater offense to steal men's labor, than their clothes"
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
This is the same declaration that claims paid holidays are a human right (article 24). Not exactly a cogent philosophical tract.
Ill-defined words such as "free" and "equal" are easy to toss around to restrict some select group's expression. Seems the U.N. is more interested in persuing a political adgenda than defining a metaphysical framework.
Java is the blue pill
Choose the red pill
Well, now we're talking about ease of access, which is different from the act of publication. Unless we now consider the internet as an independent entity, above all legal and national bounderies, "Place of publication" still holds, to which Dow Jones has made a convincing argument
He who joyfully marches in rank and file has already earned my contempt. - "Big Al" Einstein
... 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.
DEFAMATION - An act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. Such defamation is couched in 'defamatory language'. Libel and slander are defamation.
From this, it really doesn't matter whether it's true or not, it's defamation. Slander, is false defamation, while libel is defamation that must meet other qualifications (that the statement is about a person who is identifiable to one or more persons, and that the statement is distributed to one or more persons other then the injured party, i.e. published).
In other words, slander _must_ be a lie. If it's the truth, it's not slander. However, if it's true, it can still be defamation. It must meet the other above criteria to be libel. (If you say unflattering but true things to someone's face, it's not libel, but if you publish them it may be.)
IANAL, but I got these definitions here.
Kierthos
Mr. Hu is not a ninja.
Access is the real issue here. Even in 1848 if a copy of a newspaper was shipped from the US to Australia the place of publication was still the United States, and the intended readership was the United States, unless of course the publisher is the one shipping the paper to Australia.
The distinction of weather the material is delivered via sailing ship or optical fibre is not relevent as far as I can tell.
With regard to determining the place of publication and/or intended audience, as far as I know, cases involving websites thatoffer casino gambling, have set the precident in this area. If the website is served from a computer room in Antigua, that is it's location of publication. It's intended audiance is determined by such things as placing a link on the webpage stating that if it is illegal to ganble in your justisdiction, then you are not permitted to proceed.
With this in mind, I suppose all the WSJ needs to do in order to be in complience is to put similar verbage on their site that if you're in austrelia, you are not permitted to proceed further on the website. Granted that on it's face this proposal is rediculous, but it's no less rediculous than citing case law from 1848 in a civil complaint.
--CTH
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Whether this argument holds or not ... is up to the courts to decide.
See the article in the Sydney Morning Herald.
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.