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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.
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.
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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
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 ?
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?)
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
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"
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
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
... 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.