Gutnick Can Pursue Dow-Jones Libel Case

Link to Case by Capsaicin · 2002-12-09 13:23 · Score: 2

You can read the full judgement HERE

Nice conservative judgement in which the judges refused to redefine the law to suit the WWW (or Dow-Jones).

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke

Re:Link to Case by Capsaicin · 2002-12-09 13:25 · Score: 5, Informative

Try again.http://www.austlii.edu.au/au/cases/cth/high_ ct/2002/56.html

--
Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke

Terms of use, choice of law, and disclaimers by www.sorehands.com · 2002-12-09 13:24 · Score: 4, Insightful

This is a good argument for including terms of use in a website.

In most terms of use, it is customary to include choice of law and jurisdiction provisions.

I would think that courts would not enforce the ones that are too broad, but if it is narrow it may work. See a lawyer about this since your milage may vary and IANAL.

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Fight Spammers!

New way from Americans to avoid the death penalty by m.lemur · 2002-12-09 13:27 · Score: 4, Funny

I suppose....

Get your case heard in a non executing country.

Re:Terms of use, choice of law, and disclaimers by Capsaicin · 2002-12-09 13:28 · Score: 3, Insightful

In most terms of use, it is customary to include choice of law and jurisdiction provisions.

Not relevant. The point is that a third party has prima facie had their reputation damaged. Any contractual agreements between the publisher and the reader cannot affect that third party's rights.

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke

Geeeez... by WeekendKruzr · 2002-12-09 13:31 · Score: 4, Informative

Wow, way to create an incredibly reactionary and inaccurate story summary. In reality, this judgement only affects lawsuits in Australia and not "the rest of the world." You know, given the fact that the ruling of an Australian court has no jurisdiction within any other country. Not only that, but this doesn't say in the least whether or not it actually was libel, he merely won the right to have his case heard in the court. The court could still decide that this particular case does not in fact amount to libel.

Re:Geeeez... by child_of_mercy · 2002-12-09 13:37 · Score: 2

It can be used as precendent where the laws are comparable.

especially the common law which is still heavily in use in the English speaking world.

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'There is a Light that never goes out.'
Re:Geeeez... by Capsaicin · 2002-12-09 13:48 · Score: 3, Interesting

It can be used as precendent where the laws are comparable
Not exactly a precedent (ie binding), but certainly as pursasive. The other problem (from a publisher's point of view), is that if internet publishing isn't brought to its knees by Australian defamation actions, it will become a lot more difficult to argue that adopting a non-traditional view of where defamation takes place is vitally necessary for the survival of web based publication.

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
Re:Geeeez... by Any+Web+Loco · 2002-12-09 13:50 · Score: 5, Insightful

I agree it was completely inaccurate and reactionary, but you're wrong that this won't affect the rest of the world. It will, and in at least 2 ways. First, it means that any legal person (ie, includes corporations) which has offices in Australia can now be held liable for posting information to a server in Uzbekistan, if that information is viewed by the relevant public in Australia. The second way in which it matters to the rest of the world is that it sets a precedent, and one which IMHO (and IAAL, so I know a little about this) will impact judicial thinking in other jurisdictions, and quite probably along the same lines. Defamation law, like Copyright law, is one of those things which is slowly becoming internationally equivalent... epect this in a Court Near You soon.
Re:Geeeez... by Capsaicin · 2002-12-09 14:04 · Score: 3, Informative

First, it means that any legal person (ie, includes corporations) which has offices in Australia can now be held liable for posting information to a server in Uzbekistan, if that information is viewed by the relevant public in Australia.
I'm not sure that it is even a requirement that the tortfeasor have a presence within the juridsiction. What is necessary to grant jurisdiciton to the Victorian Supreme Court is that "the proceeding is brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act or omission wherever occurring," which is one of the requirements for serving outside the jurisdicition.

True having a presence within Australia will make it easier to get at the damages if they are awarded, but I think there are international agreements in place between Australia and the US as regards foreign money orders.

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
Re:Geeeez... by child_of_mercy · 2002-12-09 14:34 · Score: 2

The crucial paragrpah is this one:

...in all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort," the court said in its majority judgment.

which makes it, not so bad when you think about it, until all the worlds powerful take up residency in Singapore (which has truly horrific defamation laws).

--
'There is a Light that never goes out.'
Re:Geeeez... by Capsaicin · 2002-12-09 16:55 · Score: 3, Informative

try to get that judgment enforced. Unless the Defendant has assets in Vanuatu or is personally present there, the courts there have no power to do anything to him. You'll need to enforce the order somewhere where there's property to seize or where the defendant is within the personal jurisdiction of the court. And the recognition of foreign judgments is discretionary, at least in the sense that it isn't automatic.
That is more or less what I was getting at when I wrote "True having a presence within Australia will make it easier to get at the damages if they are awarded". I went on to say that there is some reciprocity at least between Australia and the US as regards foreign awards. I am not an American lawyer, but I believe there is both common law precedent (Hitlton v Guyot) and a uniform foreign money judgement code (which has been enacted by a number of states) and I would suspect a number of international agreements between like minded countries.

While the recognition of foreign judgements in the US is not automatic, neither AFAIK is it discretionary. Far from it, my impression is that a foreign judgement raises a prima facie presumption of liability, which it is then up to the defendant to negate, either by proving some lack of due process in the foreign judgement or whatever. One cannot presume that living in another country one is unreachable by decisions made offshore.
Sue in Vanuatu for an article posted on www.nytimes.com by somebody who resides in England
That essentially, is what this case is about. (Except that the residence of the author is of no relevance.)

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
Re:Geeeez... by Alsee · 2002-12-09 17:35 · Score: 2

Not so bad? It still requires any publisher (meaning anyone with a website) to be an expert in the law of every jusridiction in the world. It doesn't matter what it is you're writing, you never know what obscure country has some bizzare law that covers it. You don't like peanuts? Well the nation of Greater Bumfukia has a law protecting their peanut plantations from defamation.

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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Re:Geeeez... by child_of_mercy · 2002-12-09 17:44 · Score: 2

a) the PERSON (not a thing) you're defaming has to be identified by you in order to be defamed.

b) it's a problem for dow jones because they have a presence in Australia. If you don't have any presence in Greater Bumfukia there's no civil come-back to you.

If on the other hand you DO have a presence there then perhaps you should be mindful of the laws of that land without hiding behind a web-hosting on geo-cities.

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'There is a Light that never goes out.'
Re:Geeeez... by Alsee · 2002-12-09 21:19 · Score: 2

a) the PERSON (not a thing) you're defaming has to be identified by you in order to be defamed.

Maybe according to the laws of YOUR contry, but Bumfukia has different defamation laws. Besides, the issue is attempting to apply laws in general to something someone has done in a location outside the jurisdiction.

And the fact the court generally has zero ability to enforce its ruling just highlights how stupid it is to start with.

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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Re:Geeeez... by Zemran · 2002-12-09 21:44 · Score: 2

and as this action only pertains to Australia he could simultaniously start action in all other countries. Australian law is based on British law (as is most law) so the basis for the decision and the relevant arguements would be the same elsewhere.

--
I love stacking my barbecues in the shed at the end of summer - you can't beat a bit of grill on grill action.
Re:Geeeez... by Capsaicin · 2002-12-10 12:08 · Score: 2

it's a problem for dow jones because they have a presence in Australia. If you don't have any presence in Greater Bumfukia there's no civil come-back to you.
Yes there is. You take the record to an American court, tell them you were awarded $X by the Supreme Court of Bumfikia, and ask for an order awarding the amount you are entitled to. Easy.

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
Re:Geeeez... by Capsaicin · 2002-12-10 12:12 · Score: 2

It still requires any publisher (meaning anyone with a website) to be an expert in the law of every jusridiction in the world.
Not really, as the guy pointed out this was the decision of an Australian, not a World court. So all publishers have to do is this: When publishing scurrilous accusations about Australian business moguls, make sure you have the facts to back up your assertions. That's what Australian publishers have to do, and they seem to manage.

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
Re:Geeeez... by child_of_mercy · 2002-12-10 12:19 · Score: 2

I ask because aside from the internet I'm suprised there isn't an industry in the smaller, poorer nations of the world in offering the judge 20% of whatever they get and imagining all manner of creative rulings against wealthy americans.

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'There is a Light that never goes out.'
Re:Geeeez... by Alsee · 2002-12-10 13:18 · Score: 2

Not really, as the guy pointed out this was the decision of an Australian, not a World court.

The issue is weather or not courts should attempt to rule on events that occur outside their jurisdiction. If it is correct for Austrailian courts to do it then is is correct for all nations' courts to do it. You can't may an exception for one country, everyone or noone.

If you want Autrailian law to apply then you MUST accept that Ziare's laws apply too. Even if Ziare passes a law saying that publishing anything in itallics is defamation, and even if they impose the death penalty for it.

I think that leaves 3 options. (A) You accept it's fair to get the death penalty for using itallics in your post, (B) you think you're king of the world and and you arbitrarily get to pick and choose which countries get to apply their laws this way, or (C) Autrailia shouldn't do it.

Feel free to point out option (D) if you think I missed it.

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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Re:Geeeez... by Capsaicin · 2002-12-10 13:34 · Score: 2

have you got a precedent on that?
Leading case: Hilton v. Guyot, 159 U.S. 113 (1859)

Also check out the Uniform Foreign Money Judgment Recognition Act, which has been enacted in a number of state jurisdicitons.

Did a quick search for 'foreign (judgment or judgement)' on google and was able to find PDFs of the forms necessary for claiming such a judgment in several state courts.

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
Re:Geeeez... by Capsaicin · 2002-12-10 13:43 · Score: 2

The issue is weather or not courts should attempt to rule on events that occur outside their jurisdiction.
No, that was not the issue. The issue was whether the events occured within the Victorian courts jurisdiction. The decision, quite rightly, is that they did. Ie. the defamation occured within Victoria, that being the case the Victorian courts have jurisdiction.

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
Re:Geeeez... by Capsaicin · 2002-12-10 13:51 · Score: 2

an industry in the smaller, poorer nations of the world in offering the judge 20% of whatever they get and imagining all manner of creative rulings against wealthy americans
Lack of due process in the original decision is the primary defence when it comes time for the American court to issue the order making the foreign money judgment good. Hilton addresses that issue, as does the Uniform Act.

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
Re:Geeeez... by Alsee · 2002-12-10 21:24 · Score: 2

The issue was whether the events occured within the Victorian courts jurisdiction. The decision, quite rightly, is that they did.

Well, you haven't suggested an option (D), and you've rejected option (C), so are you going with:

Option (A) You accept it's fair to get the death penalty for using itallics in your post

or option (B) you think you're king of the world and and you arbitrarily get to pick and choose which countries get to apply their laws this way?

Because if Zaire passes a law that says itallics is defamation and that the defamation occured in Zaire, you're left with option (A) or (B). Simply saying the law against itallics is stupid amounts to option (B). There are a lot of countries out there, and some of them pass really bad or stupid laws.

I specificly asked you to suggest any alternative. You provided none. Go ahead, ANY alternative. Or do you give up and concede my point that the ruling is a disaster?

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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Re:Geeeez... by Capsaicin · 2002-12-11 14:37 · Score: 2

I specificly asked you to suggest any alternative. You provided none. Go ahead, ANY alternative. Or do you give up and concede my point that the ruling is a disaster?
I did not supply any alternative, because your example was based upon the fundamental misunderstanding of the issue. At least you have now conceeded the point that this is about defamtion occuring within a jurisdiction. I would give an alternative, but I'm afraid your hypothetical is a poor one. I don't understand, for instance, who is being defamed by the use of italics. This is clearly a central question apropos defamtion. Moreover, the use of the death penalty moves this out of the realm of civil and into the realm of criminal law, where quite different principles apply. (Ie. it becomes a matter of extradition rather than enforcing a foreign money judgment). Reformulate your problem a little more carefully, and I will be happy to give an alternative which reflects the law as I understand it.

I also have a question for you. Are you saying that a state cannot legislate for events occuring within its territory, merely because of the distance of the perpetrator? I can understand this argument in relation to criminal law, where intent is vital (though I doubt many states would allow external peperators such as bin Laden to escape on this technical nicety), but for a tort of strict liability (where the tort if founded upon the damage rather than any intent) like defamation, that would seem an odd result indeed.

Before you go on declaring this decision to be a 'disaster', I think you really ought to read the judgment, especially the joint judgment and that of Kirby J. You should note that this a unanimous decision. Seven very different judges have decided that it is not necessary to completely (and illogically) redefine the common law regarding defamation, merely because of the involvement of the Internet. This is a very good decisison. Think of all the oppressive law that has been made because legislators and judges have been panicked into making new law for the Net. Like the Supreme Crt decision to throw out the CDA, this is an example of high court judges say, "Stay calm, it's only the internet, the sky is not falling."

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
Re:Geeeez... by Alsee · 2002-12-11 23:26 · Score: 2

At least you have now conceeded the point that this is about defamtion occuring within a jurisdiction.

I was going along with what you said to let you get where ever you were trying to go. You didn't go far enough to get a result answering my question.

If I'm standing nude in France, and someone sees it through a telescope in Turkey, the nudity occurred in France and you shouldn't try to apply Turkish law. I did something in France. Maybe I broke the law, maybe not, but it's French law that applies.

I don't understand, for instance, who is being defamed by the use of italics.

You need me to fill in more details? It's a random bad law in a random contry. Fine, I'll make something up. Bumfukia says it's defamation of their president. Or maybe the president's daughter. Or his dog. The point is that some country has some sort of law against it.

Moreover, the use of the death penalty moves this out of the realm of civil and into the realm of criminal law, where quite different principles apply.

Perhaps in YOUR country, but maybe Bumfukia has the death penalty for civil violations.

Reformulate your problem a little more carefully, and I will be happy to give an alternative which reflects the law as I understand it.

Again, the law of YOUR contry is irrelevant. Bumfukia defines the use of itallics as civil defamation of the presiden's dog, and the law imposes the death penalty. Do you understand the law now? You think it's a dumb law, *I* think it's a dumb law, but it's a Bumfukian law. Objecting that it is a stupid law was option (C).

I think you really ought to read the judgment

I already read part of it. Did you notice it pointed out several problems and said Austrailian law needs to be changed? The judge enforced Australian law yet said the law was wrong! And I think the judge underestimated the problems.

Think of all the oppressive law that has been made because legislators and judges have been panicked into making new law for the Net.

And if the exact same text had been painted on the side of my house rather than placed on a computer would they have ruled the same way? (I don't know.) I think it's pretty absurd for some other country to try to regulate how I paint my house in my country.

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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.

Not good by unterderbrucke · 2002-12-09 13:32 · Score: 2, Insightful

"Libel cases based on Internet material"

As a society, most of us don't realize the serverity of what we say on the internet. Now that internet defamation is prosecutable, I expect it to be one of the fastest rising crimes ever.

Re:Not good by Zemran · 2002-12-09 21:50 · Score: 2

Not quite, a company, i.e. a newspaper can be libelous but peoples letters in the letters page are considered opinion rather than fact. I think that comments here would remain opinion but if the article made a statement that could be considered libel. People in general should think about what they say so I do not think it would be a bad thing, I would think huge punitive damages against individuals bad if all they said was someones breath stinks.

--
I love stacking my barbecues in the shed at the end of summer - you can't beat a bit of grill on grill action.

Disclaimer by SparkyMartin · 2002-12-09 13:34 · Score: 4, Interesting

Just put a disclaimer on you website, emails, and all your discussion board postings. Something like:

"Not intended to be viewed by anyone in the country of Australia. By viewing this you agree that you forfeit any legal recourses available, cannot hold the posting or publishing individual or party accountable for any comments that have been made"

If it works for shrink-wrap software, it should work for anything else.

Re:Disclaimer by tc · 2002-12-09 13:37 · Score: 5, Interesting

Doesn't work. The person being defamed/libelled is a third party, not the reader of the site. They could sue for libel without ever having read the site, or encountering your proposed disclaimer.
Re:Disclaimer by child_of_mercy · 2002-12-09 13:44 · Score: 2

Try more like "any country outside the originating justidiction"

It's a reasonable judgment.

Gutnick's (who, in my opinion, is a bit of a weasel [note under australian defamation laws a clearly marked statement of opinion is not libellous]) reputation was damaged primarily in the place he lives and works.

Dow Jones could choose to ignore the verdict of the Supreme Court of Victoria (the state Joe Gutnick calls home) but they have interests in Australia that are probably worth more than the damages against them.

Try and imagine if the Sydney Morning Herald spectacularly defamed a major american tycoon (ok, and if the laws in the US were more defamation friendly) I think you'd see this differently.

This is going to bring about big problems, but they are things that do have to be resolved and we can't close our eyes to it anymore.

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'There is a Light that never goes out.'
Re:Disclaimer by Mr_Dyqik · 2002-12-09 20:23 · Score: 2

If I state "In my opinion, X." then the whole statement is a statement of fact, and cannot be libellous, on grounds of truth, as long as I believe X. X still might not be true. So a disclaimer on any page saying that all of the content is a statement of opinion and may be wrong, should make libel impossible.

This ruling does change the laws, just because it's the internet. In my opinion, the courts should have taken the view that the material is published at the location of the webserver(s), and the internet acts as a distribution system for those documents. This finding says that if a document can by transmitted in some form to a country then it was published there. So if I can post a copy of "The Satanic Verses" to Saudi Arabia, then it was published in Saudi Arabia.

Question about the precendence this sets... by Maul · 2002-12-09 13:35 · Score: 5, Interesting

#1. How can they enforce this sort of thing on everyone?

For example:

Let us say that I say something mean about someone in Australia on the web. That person then files
suit against me in an Australian court.

I have no presence in Australia. Even if they manage to serve the suit to me via mail or something, what inclines me to go to the court? What can they do to me, since I'm in the USA?
Would they try to get the US Government to extradite me? Sure, it might just prevent me from ever visiting Australia, but I don't see how they could get someone over there to trial.

Since Dow Jones probably has some sort of presence in Australia, I can see how they might be more inclined to follow the court's orders... but what about everyone else?

--

"You spoony bard!" -Tellah

Re:Question about the precendence this sets... by Any+Web+Loco · 2002-12-09 13:54 · Score: 2, Informative

They don't really care about *you* per se. Someone who considered themselves defamed would go for deeper pockets - your employer (if you posted from work), or your ISP (more likely). If they didn't remove the offending material, they'd try find a way to have *them* brought as a party in Australia, which, being corporates, is a hell of a lot easier.
Re:Question about the precendence this sets... by RobertEwing · 2002-12-09 13:58 · Score: 2, Informative

IANAL, but I have read some stuff written about this area.
In short, if you've got not presence in Australia, don't lose any sleep over this. US courts have a long history of throwing out decisions that violate public policy (i.e. free speech). For instance, see Matusevitch v. Telnikoff (702 A 2d 230 (Md CA 1997)). In this case an English defamation decision was thrown out in America.

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Robert Ewing Visit the ANU Film Group home page http://www.anufg.org.au Australia's largest film society.
Re:Question about the precendence this sets... by spindizzy · 2002-12-09 14:01 · Score: 2, Interesting

Yes they can still try you but of course enforcing the judgement is problematic. As part of the judgement would probably be a court order requiring removal of the offending remarks it could lead to your content being blocked within Australia (although as Defamation is done at a State level here it shold really only apply within that state). Of course it would be nearly impossible to enforce the financial part of the judgement unless you gained some sort of financial status within the country.
The US government wouldn't extradite you on a civil matter ( defamation is a civil matter, libel a criminal one ).

BTW Truth is not necessarily a defence against defamation in Australia, if intent to cause harm is the motive you can still lose a case. The defamation laws are highly tilted in the favour of the rich over here.

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Quidquid latine dictum sit, altum viditur
Re:Question about the precendence this sets... by vandan · 2002-12-09 14:12 · Score: 5, Insightful

Althought I agree with you, you have to admit it's a little unfair of US citizens to complain when they do the same things themselves.
How about that DMCA case with the Russian guy. He broke a US law while in his home country and got in the shit over it. So US jurisdication covers the entire world and everyone elses' jurisdication only covers their own lands' and then only when it doesn't contradict US law?
Re:Question about the precendence this sets... by Maul · 2002-12-09 14:42 · Score: 2

No, not at all. I am in agreement with you that Dmitri should not have been arrested in the manner he was. That was pretty shameful of the US Government. I believe US jurisdiction should cover the US, ONLY. I believe that Australian jurisdiction should cover Australia, ONLY.

However, it seems that the governments of many countries, the US and Australia included, are now under some delusion that their laws should extend beyond their borders. The US is a huge offender in this area, no doubt. It doesn't make me happy that my country is doing this.

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"You spoony bard!" -Tellah
Re:Question about the precendence this sets... by SecurityGuy · 2002-12-09 15:04 · Score: 2

Let's be fair here. The US citizenry didn't pass the DMCA. A bunch of old congresscritters did (didja hear Strom Thurmond just hit 100?)

It's an assinine and stupid law, but if it's enforced in your country it's because your government rolled over, which is to say that both my government and yours are doing a poor job. You *can* say no.
Re:Question about the precendence this sets... by limekiller4 · 2002-12-09 15:23 · Score: 2, Insightful

vandan writes:
"How about that DMCA case with the Russian guy. He broke a US law while in his home country and got in the shit over it. So US jurisdication covers the entire world and everyone elses' jurisdication only covers their own lands' and then only when it doesn't contradict US law?"

To be fair, unless you have another post by this guy where he's cheerleading the US Gov't on that one, I really don't think you can hold it against him. Just because the MPAA gets away with sqwishing fair use doesn't mean I have to forfeit ever arguing fair use again.

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My .02,
Limekiller
Re:Question about the precendence this sets... by Bios_Hakr · 2002-12-09 16:12 · Score: 2

He was arrested in the US. Not that I agree with him being arrested, but if he knew he was violating a US law, he should have never come to the US.

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I'd rather you do it wrong, than for me to have to do it at all.
Re:Question about the precendence this sets... by oh · 2002-12-09 16:16 · Score: 2

Disclamer: I am Australian, and IANAL

Australian courts have juristriction in Australia. If found guilty under Australian law then they will be punished under australian law, and will have to pay 1) court costs 2) compensation.

Note that in Australian there is no concept of punitive damages, and costs are almost always paid for by the loosing party, so the sums of money are smaller then those in the US.

There is nothing about this being enforced in the US, but if the company wants to have do anything in Australia, they will have problems. The company may be based in the US, but most large companies have operations in many countries. Unless each local entity was its own corperation (and hence a person in the eyes of the law) each local office would be liable for any verdicts against the whole company.

There is a flip side to this arguemnt. If a company is based in one country, but commits a crime in another, which country should the case be heard in? Consider that unlike a person, a company can operate in many countried at the same time. Imagine that microsoft was registered in a small island country. Would that prevent the US anti-trust actions from beign heard in the US? Should Microsoft not be sued in Europ for anti-compeditive actions because it is based in the US?

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Democracy isn't about no one telling you what to do. It's about everyone telling you what to do.
Re:Question about the precendence this sets... by danoatvulaw · 2002-12-09 17:18 · Score: 2, Informative

Actually, even assuming that libel is still a prosecutable "crime", the US extradition treaty (27 UST 957) with Australia only covers specifically enumerated felonies, (libel is not one of them... therefore enforcing a judgment against you would be next to impossible):

1. Murder or willful murder; assault with intent to commit murder.
2. Manslaughter.
3. Aggravated or willful wounding or injuring; assault occasioning actual bodily harm.
4. Unlawful throwing or application of any corrosive or injurious substances upon the person of another.
5. Rape; indecent assault, including unlawful sexual acts with or upon children.
6. Illegal abortion.
7. Procuring, or trafficking in, women or young persons for immoral purposes; living on the earnings of prostitution.
8. Abandoning or exposing a child when the life of that child is or is likely to be injured or endangered.
9. Bigamy.
10. Kidnapping; child stealing; abduction; false imprisonment.
11. Robbery.
12. Burglary; housebreaking or any similar offense.
13. Larceny.
14. Embezzlement.
15. Obtaining any property, money or valuable securities by false pretenses or other form of deception.
16. An offense against the law relating to bribery.
17. Extortion.
18. Receiving any property, money or valuable securities knowing the same to have been unlawfully obtained.
19. Fraud by an agent, bailee, banker, factor or trustee, by a director or officer of a company or by a promoter of a company, whether existing or not.
20. An offense relating to counterfeiting or forgery.
21. Perjury; subornation of perjury; conspiring to defeat the course of justice.
22. Arson.
23. An act done with the intention of endangering the safety of any person traveling upon a railway or in any aircraft or vessel or other means of transportation.
24. Any seizure or exercise of control, by force or violence or threat of force or violence, or by any other form of intimidation, of an aircraft.
25. Piracy, by statute or by law of nations; revolt on board a vessel against the authority of the master of the vessel.
26. Malicious injury to property.
27. An offense against the bankruptcy laws.
28. An offense against the laws relating to narcotics, dangerous drugs or psychotropic substances.
29. Dealing in slaves.
Re:Question about the precendence this sets... by Alsee · 2002-12-09 17:50 · Score: 2

If I'm standing on a boat in international waters with a cruise missile, and I blow up a ship IN the us.... and kill all the senior citizens on the cruise.. should I then be able to dock in the US and hang out iwthout fear of being prosecuted for murder?

How about you merely design a better mousetrap in international waters. Someone else takes the design into the US and no one uses it to break the law.

A hell of a lot more accurate in this case.

-

--
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Re:Question about the precendence this sets... by SecurityGuy · 2002-12-09 18:49 · Score: 2, Flamebait

Iraq and Afghanistan didn't incur the wrath of the US because they wouldn't enforce the DMCA. Iraq invaded another sovereign nation, threatened our interests in the region AND gave their neighbors enough cause for concern that we were welcomed in to kick 'em back out. "We", being a community of nations who didn't think a dictator like Hussein should annex Kuwait just because he didn't have enough space for palaces in HIS corner of the desert. Afghanistan was run by a repressive regime intent on harboring al Qaeda. Nuff said.

I'm not yet persuaded the US is a bully. I was listening to NPR this morning when I heard some guy from a think tank in Qatar explaining that they favored letting the US use their land for military action against Iraq because they thought it was in their interest to have powerful allies. Fair enough. We get something, they get something, we're both happy. Nobody's getting beaten up on the playground. I'm kinda tired, though, of being the rich uncle (Sam) who gets hit up for money any time anyone needs it, who sends sons and daughters to die thousands of miles from home saving other people's ass...ets, and is treated like a tyrant for asking something in return. I'm thinking of cases like Bosnia where I don't believe there was any political, economic, or military reason for us to bother. In fairness, I'm also thinking of cases like Rwanda, where there wasn't any political, economic, or military reason for us to bother, and to our everlasting shame, we didn't. While you have your nose up in the air ask yourself why you didn't do anything either.

I've got news for all the non-US citizens out there. There are more of you than there are of us. You have more economic power than we do. You have more political power than we do. Military is iffy since it's not a winner take all game. Both sides lose something. Still, we're not going to invade if you don't enforce the DMCA. Ya see, first, the rest of you (and remember, there are a lot more of you than us) would be pretty pissed off, and we don't want that. Second, like the citizens of just about everywhere else, all things being equal, we'd rather not have a war even on YOUR soil. Even those who favor war in Iraq don't favor having a war per se, but rather see the war bit as inevitable and are just choosing a time that's to our advantage (before he has nukes rather than after).

I could go on forever on this topic, so I'll try to draw it to a close by pointing the finger right back at 'cha. For every one of you who sticks up your nose at the stupid Americans while we sit on our fat backsides drinking bad beer and eating hormone filled fast food burgers, YOU ARE PART OF THE PROBLEM. As I've gotten out into the wider world, I've come to accept that here in the good 'ol US of A, we don't always hear what the rest of you are saying. Our ears are open, but unlike a lot of you, it's a long way to the border, the border's water on east and west anyway, and the guys down south speak a language most of us don't understand. We don't share your perspective because we don't live in your shoes, but that doesn't mean we're incapable of understanding your perspective. You don't understand our perspective for exactly the same reason. As long as we are both content to walk around with disdain for the others' ignorance, that's how things will remain. This is changing somewhat due to the advent of satellite TV and the Internet. Those voices are starting to come through more clearly, but ironically not because the speakers have done anything to make themselves heard more clearly. Speak up, mmmmkay?
Re:Question about the precendence this sets... by rgmoore · 2002-12-09 19:29 · Score: 2

BTW Truth is not necessarily a defence against defamation in Australia, if intent to cause harm is the motive you can still lose a case. The defamation laws are highly tilted in the favour of the rich over here.

Which is obviously why he wants the suit to be handled in Australia. It's a good old case of jurisdiction shopping; the Australian laws are more favorable, so he wants the case to be tried there. The American laws are more favorable to Dow Jones, so they want the case tried in America.
That said, there is a certain degree of reason to the Australian court's ruling. If a web site can actually be read anywhere, then damage from defamation can happen anywhere, and the plaintiff should be able to sue wherever he suffered the damage. The fact that there's a specific person involved naturally limits the number of places where damage can take place, so it inherently limits the amount of jurisdiction shopping that can take place and the number of applicable defamation laws that the publisher needs to consider.

--
There's no point in questioning authority if you aren't going to listen to the answers.
Re:Question about the precendence this sets... by Monkelectric · 2002-12-09 20:26 · Score: 2

US Citizens hate the DMCA as much as the rest of the world. US Citizens don't do anything to citizens of other countries.
The US Government does those things and the US *government* is completely out of touch with the wishes of its citizens, because it is controlled by a handful of people who are completely out of touch with any passion other then greed.

--
Religion is a gateway psychosis. -- Dave Foley
Re:Question about the precendence this sets... by Zemran · 2002-12-09 22:05 · Score: 2

Do you mean the way that most of these oil tankers that break in half spilling their load are registered in places like Liberia so as to avoid damages? I think I could make a good case for companies becoming globally liable.

--
I love stacking my barbecues in the shed at the end of summer - you can't beat a bit of grill on grill action.
Re:Question about the precendence this sets... by SecurityGuy · 2002-12-10 03:03 · Score: 2

As a general principle I believe people should be allowed to choose their own leaders and their own form of government. General principles have a way of giving in specific situations. Pick a specific democratic elected leader we "backed" and I'll bet there was a decision process somewhere in D.C. which went rather beyond "That guy won't do whatever we want. Oust him!" Is it right? I don't know. I don't know the rationale for the decision, but I'll grant that the answer might be no.

The point of my post, which you ignored in favor of saying, in essence "Yes you are!", is that a discussion is productive. Name calling is not. When Joe Sixpack in Anytown, USA hears you say "The US is a bully!" he farts in your general direction and goes back to watching Jerry Springer. When you say, "Hey, did you know you guys backed $DICTATOR to overthrow $ELECTED_OFFICIAL in $COUNTRY?" you at least have a chance of getting the thought process going. That person is going to probably at least think to themselves "I wonder if we did that. If we did, why, and was it the right thing to do?"

I'm telling you that basic presentation strategy applies. Ask 100 Americans to name their President, Vice President, Secretary of State, and the President's National Security Advisor and I'll bet you fewer than 25 can do it. These are the people you need to persuade. If you want to do the in thing and bash the US, knock yourself out. If you want to actually get your point across, doing so in a manner not likely to make your audience dismiss you out of hand would be a good idea.

Incidentally, I haven't seen Bowling for Columbine for exactly that reason. Michael Moore has done too many things to make me think he's nothing more than an extremist liberal slinging mud at the evil capitalists. Maybe he has something deserving of a fair hearing in this movie. If he hadn't so effectively turned me off he might have gotten one by now.

You can be effective or not. It's up to you.
Re:Question about the precendence this sets... by poot_rootbeer · 2002-12-10 04:39 · Score: 2

1. Many US citizens who are cognizant of the Skylarov case and those like it aren't at all happy about setting a precedent where US laws can be enforced against entitities outside of US jurisdiction.

2. It could be argued that Dmitri broke US law while doing business in the US, in which case arresting him under DMCA provisions would be justifiable (provided that the DMCA laws were just, and that's debatable as well).
Re:Question about the precendence this sets... by HiThere · 2002-12-10 05:07 · Score: 2

Are you sure that the US Govt. is out of touch with the people? Or is it that it is *in* touch with those who have fat wallets?

This administration makes Taft look good. (And the one before wasn't that much better.)

This is a structural problem. If you look at the cost of running for office, you could predict ahead of time that the only ones who are successful are beholden to SEVERAL people who have bought them. Possibly Bill Gates could afford to run. I might even vote for him. I despise him and his company, but he COULD be an honest candidate if he wanted to. Most candidates don't have that option. Ross Perot is the only one I can think of. (Mind you, being honest isn't the same as being a good choice.)

--

I think we've pushed this "anyone can grow up to be president" thing too far.
Re:Question about the precendence this sets... by SecurityGuy · 2002-12-10 06:44 · Score: 2

There's a wonderful irony here (especially if you're the same Anonymous Coward each time) that I'm saying don't just call Americans names, but rather challenge them, talk to them, tell them how YOU see the world, and that's what you're doing. Wonderful. Thank you. Keep it up. Find some of my countymen who are on the net for entertainment and haven't heard your views. Talk to them.

I suggest you examine your goals. Are you content to just sit back and hate the U.S., or do you want to influence its behavior by influencing the opinions of its voters? You posted a reasoned opinion on the Israel/Palestinian issue. Had it been prefaced by "Hey jackass", I probably wouldn't have bothered reading it. I can't say you changed my mind, but that's because I already oppose the huge sum of money we send Israel every year and I've already come to believe there's no good guy in that conflict and a lot of people caught in the middle who would rather not be. Killing innocent civilians is indefensible--on both sides.

I have to say you're not wrong, in my opinion, on the educational state of the average American. Back to my original point, you just have to decide if you're going to do nothing more than be pissed off about it, or are you going to do something. If enough people decide to do something, it will change. If enough sit back and do nothing, it will not.
Re:Question about the precendence this sets... by Elwood+P+Dowd · 2002-12-10 08:24 · Score: 2

Grandparent didn't complain. He said, "Would they try to get the US Government to extradite me? Sure, it might just prevent me from ever visiting Australia, but I don't see how they could get someone over there to trial."

You are making exactly the wrong comment. Dmitri is accused of violating a US law in the US. Just as if he had sent a bomb here in the mail. Since the DMCA is a flagrant violation of all kinds of essential human rights, there is no way Russia would have extradited him. So, instead, they waited until he flew here on his own, and arrested him on US soil.

There is zero "jurisdiction" question here at all. A US law was violated in the US. The dude who they think did it came to the US. They arrested him in the US. Nothing relevant to the case occured outside US borders.

Similarly, Dow Jones committed a crime in Australia. Since they're already in Australia, some Australians are taking them to court in Australia. Again, no jurisdiction question at all. It's just interesting because it raises the point that if certain speech is illegal in any nation, making that speech on the internet violates law in that nation.

Grandparent poster asked, "What if I never went to Australia?" and that's an interesting question. Not a complaint. Jesus.

I keep having to reiterate this: The problem with Skyalarov's case is that he did not violate the DMCA, and the DMCA is an unjust law. There is no jurisdictional question.

--

There are no trails. There are no trees out here.
Re:Question about the precendence this sets... by TekPolitik · 2002-12-10 10:24 · Score: 2

What can they do to me, since I'm in the USA? Would they try to get the US Government to extradite me?

International extradition is only for criminal offences, and even then only when the conduct alleged is criminal in both contries.

The Court acknowledged (at paragraph 53) that a defamation action will be pointless if the defendant does not have assets in a jurisdiction that will enforce any judgement

Re:So if I say something deamed a criticism of Isl by Anonymous Coward · 2002-12-09 13:41 · Score: 2, Insightful

Can you say Salman Rushdie?

Not whoring but... by Any+Web+Loco · 2002-12-09 13:42 · Score: 2, Insightful

for those of you who're interested, here's the full text of the judgement. It's long, but not hard to follow. The most interesting parts (the actual reasons for the judgement) can be found from about para 180 onwards.

This is important stuff, and not just for Australia - it sets a precedent which other jurisdictions will follow.

So what do you think? Erosion of Your Right Online (TM) or a transjurisdictional extension of them?

Re:1994 by brain159 · 2002-12-09 13:47 · Score: 3, Insightful

this is not even an RTFA. Demon is a UK ISP, I'm pretty certain Godfrey's a brit, and it was contested in the English courts. not relevant.

You only worry if it is a criminal act by StArSkY · 2002-12-09 14:06 · Score: 4, Informative

This is only a civil and not a criminal act, so as an individual you don't have to worry. If however defamation was criminal (eg you can go to Jail) then the Australian government could have you extradited under a common treaty.

If you are an individual in the US, it would also be very difficult for you to libel, slander, or defame someone in Australia anyway (unless you are working for an employer that has power over public opinion such as a big company or press). eg. Bill Gates could Slander me (but only because he is idenitifiable becasue of Microsoft). In that case I could sue Microsoft IF they endorse or publish the information.

Either way I don't think that Gutnick will win the case anyway. The press are a forum for opinion, that is what they do, offer their opinion and they did. I don't think there are many people who would have their perception of Joe altered in anyway by the article they published. Everyone here in Australia already knows he is a blood sucking parasite and as such the perception of his good standing is crap and has been for years anyway.

All of the companies he has run are in financial ruin (well most of them), and in typical fashion Joe is teflon man (the shit never sticks).

Hell, he even got kicked off the board of the football club he financially supported because he was such a prick. How can anyone who nobody respects or admires be defamed!

--
lounge around on the blue couch

Re:You only worry if it is a criminal act by child_of_mercy · 2002-12-09 15:14 · Score: 2

"The press are a forum for opinion"

thats not broadly speaking true.

it's a forum for information, some of which is opinion.

opinion can be a defence in australian defamation proceedings, but must be clearly identified as such.

--
'There is a Light that never goes out.'

Hmm... by El · 2002-12-09 14:06 · Score: 2, Insightful

Does this mean Saudi Arabia can now shut down ALL the porn sites, as they are illegal there? This IS a pretty scary precedent.

--

"Freedom means freedom for everybody" -- Dick Cheney

Re:Hmm... by Cato+the+Elder · 2002-12-09 14:11 · Score: 2

The judge specifically considered defamation a special case. If you write an article, it is clear who you are potentially libeling. Therefore, the judge said, you can determine what laws would apply. This is not the case with most other restrictions on speech, so Saudi Arabia could not shut down porn. It does, however, seem to imply that Saudi Arabia could try foreign web journalists for insulting the Saudi government, which IIRC is illegal there.
Re:Hmm... by Zemran · 2002-12-09 22:17 · Score: 2

This action does not in any way extend legal powers beyong anyones boundaries. There is no mention of any enforcement action taking place in a foreign country. That said I would sugest that known porno hosts avoid holidays in Saudi Arabia as they could be prosecuted for distribution across the internet. Then again, does anyone go to Saudi for a holiday? Oh look, another sand dune... and over there you can see an oil pipeline... etc.

--
I love stacking my barbecues in the shed at the end of summer - you can't beat a bit of grill on grill action.
Re:Hmm... by El · 2002-12-10 17:10 · Score: 2

does anyone go to Saudi for a holiday?
Actually, millions of people do every year, only they refer to it as "a pilgrimage to Mecca", not "a holiday".

--
"Freedom means freedom for everybody" -- Dick Cheney

Obligatory - Let the booting begin! by SoCalChris · 2002-12-09 14:08 · Score: 5, Funny

I'm surprised no one has refrenced this yet... http://www.snpp.com/episodes/2F13.html Andy: Hear ye, hear ye. This session will now come to order. With the cooperation of the US Department of State, we have present today one Bart Simpson.

[everyone mutters amongst themselves]

I believe he has something to say. Bart?

Bart: [goes to microphone, scratches, clears throat several times]

I'm sorry. I'm sorry for what I did to your country.

[everyone applauds]

Andy: [jovial] Well, you're free to go, Bart...right after your additional punishment.

Homer: Punishment?

Andy: Well, a mere apology would be a bit empty, eh? Let the booting begin.

Homer: Booting?

Andy: Aw, it's just a little kick in the bum.

[a man with a gigantic boot walks in]

Bart: Y'uh oh.

What it means by siliconbunny · 2002-12-09 14:15 · Score: 5, Informative

Watching /.'rs comment on law is amazing . The whole thing is simple:

A. if you post something defamatory on the web, and it affects someone somewhere in the world, don't be surprised if they try to sue you in whatever country that person has a reputation to protect.

B. most baseless suits (including those where the plaintiff has no reputation in the country where the suit is lodged) will be stayed in most jurisdictions--it's called forum non conveniens.

C. defamation is not a crime. This isn't about extraterritorial criminal laws.

D. Insulting a religion or king *may* be a crime -- eg lese majeste in Thailand. Problem: depending where the poster is, courts of that country may not have jurisdiction, and the crimes are unlikely to be extraditable (no dual criminality and all that). Solution: if you insult a country or its king, don't visit it. If you insult a religion, don't visit countries where that is an official or protected religion.

E. much free speech law in the US proceeds on a bogus premise anyway. The First Amendment (try reading it) is supposed to prevent the Government enacting laws which impose censorship ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press") and was intended to prevent laws stifling policical discourse. It is a restraint on Congress' ability to enact laws. It shouldn't apply to one private person slurring another without justification, any more than it applies to shouting fire in a crowded theatre. No Federal law == amendment not apply.

F. Even if a US company or person is sued overseas, unless they have assets in that jurisdiction, they are likely to be safe. No assets = nothing to enforce the judgment against locally, even if the plaintiff wins. Further, US courts will probably not enforce a foreign judgment obtained under libel laws which are incompatible with the ridiculously overbroad reading given to the First Amendment.

G. the issue in the Dow Jones case was interlocutory: could the case proceed to hearing in Victoria or not? There has been no trial. Whether the story was defamatory or not, and whether or not any defence applies, is only now to be considered.

H. the result of the judgment is to affirm responsibility -- if you have to power to say something nasty about someone, wherever they are located, you have the correlative responsibility for what you say. Being based overseas is no excuse. My spin: if you don't like that, use technological means to limit who sees the material; and/or check your facts about what you are saying; and/or don't make it a slur; and/or check the local laws of the places your target lives & has a reputation, and is accordingly likely to sue. (The judgment also politely observes that many US courts do not understand the single publication rule! :).

I. Godfrey v Demon was not about this issue. There, the defendant ISP which carried the objectionable posting was based in the UK, as was the plaintiff. See a good potted summary of the case.

J. Before anyone jumps to a conclusion and complains about US-centricity, I am not based in the US. Many web servers are.

K. I am a lawyer, but this post does not constitute legal advice, is not offered with any warranty, and I assume no responsibility for anyone acting upon it.

Re:What it means by siliconbunny · 2002-12-09 14:48 · Score: 2, Funny

:)
Don't forget -- lawyers charge by the word!
That will be $38, thanks. :)
Re:What it means by pgpckt · 2002-12-09 15:26 · Score: 2

E. No Federal law == amendment not apply.

That sort of ignores Amendment 14, which in (really) short says that the Federal constitution applys to the states as well.

--
Lawrence Lessig is my personal hero.
Re:What it means by Alsee · 2002-12-09 20:33 · Score: 2

A. if you post something defamatory on the web, and it affects someone somewhere in the world, don't be surprised if they try to sue you in whatever country that person has a reputation to protect.

In my country (Bumfukistan) I have a reputation as the greatest lover in the world. I just found a post that says siliconbunny is the greatest lover in the world. In Bumfukistan the penalty for this defamation is death. I have a reputaion to protect.

B. most baseless suits... will be stayed in most jurisdictions

Bumfukistan never dismisses baseless suits.

C. defamation is not a crime.

It is in Bumfukistan.

D. ...don't visit countries where...

You have half a point there. Don't visit countries with fucked up laws, they can chop your head off the moment you arrive. You better hope your government doesn't have a broad extradition treaty. It's a really lousy solution though. Do you really want to check the entire legal code of every contry you enter to see if anything you ever did violates their law? Like insulting a religion or king, or having pre-marital sex, or voting, or eating a hamburger, or reading Huckleberry Finn.

E. much free speech law in the US proceeds on a bogus premise anyway.

In your oppinion US free speach is ridiculously overbroad. That's nice. Actually it supports my position. What about some other country that is ridiculously overnarrow in your oppinion? The internet is global, try applying the worst laws from every legal system. Or any two with mutualy exclusive requirements. Whoops! No one can say or do anything. I'm sure something in your post violates a law somewhere in the world, maybe Zaire has a law saying anyone who identifies hmself as a lawyer must state where he's licenced to practice.

F. Even if a US company or person is sued overseas

You sure seem obsessed with the US. US shmoo-ess. I don't care what two countries are involved. It's a lousy idea to try to apply laws to things that occurr outside their jurisdiction. Your defence that that court will most likely be incapable of enforcing its ruling just reinforces how stupid it is in the first place.

G. the issue in the Dow Jones case was interlocutory: could the case proceed to hearing in Victoria or not?

It should have been tossed for lack of jurisdiction. The ruling itself pointed out several of the problems with allowing jurisdiction. In my oppinion he dissmissed some of them too lightly. Still, the judge said the law needs to be fixed.

H. the result of the judgment [austlii.edu.au] is to affirm responsibility -- if you have to power to say something nasty about someone, wherever they are located, you have the correlative responsibility for what you say. Being based overseas is no excuse.

Exactly, and I should be held accountable by the laws that apply to me. The other person being based overseas is no excuse to apply some random set of laws to me. Let's say I meet you in a diner in my country, we have a spat and I "defame" you. Now you go home to some unknown country and sue me? LOL!

(The judgment also politely observes that many US courts do not understand the single publication rule! :)

Ok, so what's the single publication rule? chuckle

I.
J.

No complaints :)

K. I am a lawyer, but this post does not constitute legal advice, is not offered with any warranty, and I assume no responsibility for anyone acting upon it.

Well I'm not a laywer, so there! :D
Anyone who considers anything I say to be legal advice and acts upon it is a moron.

Oops, now I'll get sued for defamation in Uruguay for the "moron" comment.

-

--
- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.

Depends on how discovered by www.sorehands.com · 2002-12-09 14:16 · Score: 2

If the person claiming libel, read the article, then it may be argued they agree.

Of course this all comes down to how much a person who is making a claim is exempt from copyright and EULAs in investigating for a lawsuit or potential lawsuit.

--
Fight Spammers!

Re:Depends on how discovered by Capsaicin · 2002-12-09 17:20 · Score: 2

If the person claiming libel, read the article, then it may be argued they agree.
Of course they didn't read it. Someone told them about it. :)

Usually a choice of law clause will read something like "... to litigate any dispute arising ouf of this subscription according to the law of ..." Now the libel cannot be said to arise out of the subscription. In fact it is difficult to see how a clause could be broad enough (and still remain enforcable) to cover a situation like this.

--
Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke

And in related story. . . by kfg · 2002-12-09 14:38 · Score: 2

anybody who has ever had access to the internet is declared guilty of something, somewhere.

Film at eleven.

KFG

Important precedent by siskbc · 2002-12-09 14:39 · Score: 2

Yes, it only applies to Australia. So this is mainly only a problem for corporations that have a presence everywhere (like news services, for example). For them, though, this is very problematic, and as mentioned, even if this guy loses his suit, the finding of fact already decided (I use the US term but I assume aussie is similar) is important in itself.

For private individuals, I assume you can tell the aussies to piss off. I would be surprised if the US extradited anyone on such a charge, but you never know. Basically, if you libel an aussie, don't plan on that Sydney vacation.

--

-Looking for a job as a materials chemist or multivariat

Australian defamation law by child_of_mercy · 2002-12-09 14:40 · Score: 2

I'd recommend: http://www.efa.org.au/Issues/Censor/defamation.htm l.

in particular in the "defences available":

fair comment (e.g. an expression of an honestly held opinion or a criticism on a subject matter of public interest)

--
'There is a Light that never goes out.'

One point about this decision by Goonie · 2002-12-09 14:40 · Score: 2

is that Australian defamation laws are considerably stricter than, say, the United States. That's why Gutnick is trying to sue here rather than there.

The other point to be made here is that the High Court's ruling is not on a constitutional issue. Therefore, whilst it may not affect this case, it's quite possible that Australian laws may be passed in the future that explicitly define where something is published with regards to the internet.

Exactly how that definition *should* be worded is worthy of some discussion, also...

--

Any sufficiently advanced technology is indistinguishable from a rigged demo
--Andy Finkel (J. Klass?)

Good roundup of aust defamation law and the net by child_of_mercy · 2002-12-09 14:42 · Score: 3, Informative

For a scholarly, but readable roundup of Australian Defamation Law and the Internet I'd recommend:

http://www.efa.org.au/Issues/Censor/defamation.htm l

--
'There is a Light that never goes out.'

Re:Terms of use, choice of law, and disclaimers by jyg1234 · 2002-12-09 14:54 · Score: 2, Informative

I don't think that a defamation action can legally be excluded by a choice of law clause. The purpose of a defamation action is to "refame" or remove the defamation of the claimant in the place where the action was claimed. See the judgement http://www.austlii.edu.au/au/cases/cth/high_ct/200 2/56.html paragraph 6.

It does not seem likely that the publishers can say that they are free to defame in any jurisdiction other than the ones they choose.

For example, in the United States, the DMCA... by yerricde · 2002-12-09 15:17 · Score: 2, Interesting

Granted, the article covers choice of law in a libel case, but the interaction between contracts and investigation reaches to other areas of law.

Of course this all comes down to how much a person who is making a claim is exempt from copyright and EULAs in investigating for a lawsuit or potential lawsuit.

For example, in the United States, the DMCA's circumvention ban does not apply to any investigative action in which federal, state, or local government is involved (17 USC 1201(e)).

And doesn't a subpoena trump a unilateral contract?

--
Will I retire or break 10K?

Reversi by limekiller4 · 2002-12-09 15:21 · Score: 3, Funny

From the article:
"The landmark judgment means material published on the internet is deemed to have been published in the place it is viewed online, not the country of origin."

I don't know what the legal system is like in Australia but in the states you can generally sue anyone for anything you damn well like, regardless of its merits.

While I doubt our courts will act in a reciprocal manner just to make a point, the tacit argument the Australian government is making is that they can apply our laws to American entities. If this is taken to its logical conclusion, and Americans are allowed to apply American legal standards to Australians, this might forever be known as the Pandora's Box Judgement.

--
My .02,
Limekiller

Re:Reversi by limekiller4 · 2002-12-09 17:49 · Score: 2

NZKiwi writes:
"Why Not? Americans are ALREADY applying (or trying to apply) their laws/standards to the rest of the world; or has everyone forgotten a certain Russian Programmer; and a Norwegian Kid; and the overseas implications of the DMCA already?"

Are you somehow arguing that if I criticize Thing A that Government B is doing, I have to include with it a dossier formally criticizing every country that does it too? How long do they have to stop before I can remove them from the list?

And while I'm asking the questions, who are you and why are you telling me how to go about critiqing and who I must include?

Just because the American government quashes fair use does not mean that Americans have to stop criticizing governments that also quash fair use any more than citizens of countries that piss all over human rights have to remain mute when other contries violate human rights.

What an obnoxious, ignorant post.

--
My .02,
Limekiller
Re:Reversi by Alsee · 2002-12-09 20:46 · Score: 2

Americans are ALREADY applying (or trying to apply) their laws/standards to the rest of the world; or has everyone forgotten a certain Russian Programmer;

That was done by a handful of people and they dropped the charges. Maybe they realized they fscked up, maybe the American population convinced them they wouldn't stand for it.

and a Norwegian Kid;

That got nothing to do with American law, he's in Norway in front of a Norwegian court charged with breaking Norwegian law.

and the overseas implications of the DMCA already?

The main overseas implictation is that most other countries seem to be in some moronic race to see who can pass an even worse version of it, and how fast they can pass it.

This isn't hypocracy, it's a bad idea no matter what country tries to do it.

-

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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.

Re:New way from Americans to avoid the death penal by pod · 2002-12-09 15:55 · Score: 2

The US has the death penalty for defamation suits? It's not even a criminal matter!

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"Hot lesbian witches! It's fucking genius!"

This is problematic by dh003i · 2002-12-09 16:33 · Score: 3, Interesting

People should be accountable to the laws of the nation they reside in, and only those laws. They should only have to know one set of laws: those for the country they reside in. It is outrageous that a US citizen could be sued for Libel in Australia under the much more restrictive Australian laws, which would be unconstitutional in the US.

If someone in Australia thinks they were defamed by someone in the US, then they should have to sue the person in US court, if they have standing. I personally think that foreigners in other nations shouldn't be able to use the civil courts in this nation.

The principal here is very simple: that a person should only have to be accountable to the laws of the nation (s)he's residing in. Anything else is inherently problematic, as it will put people in catch-22's, where a certain action may be mandated by the laws of one nation, but prohibited by those of another. This is why I think that the US should withdraw from most international agreements, in that they violate the US Constitution and the rights of US citizens. International treaties, for example, could allow a US citizen to be trialed in China for publishing an opinion critical of the Chinese government.

Another inherent problem with US citizens being subject to the (say) defamation laws of Australia that it is analagous to taxation without representation. In this case, laws are being imposed on US citizens without those citizens being represented in the creation of those laws. It is outrageous.

Every nation has enough bad worthless laws of its own. Nation's don't need the bad laws of other nations in addition to the bad laws of their own. Each nation's citizens run into enough problems with their own nations bad laws, let alone those of other nations.

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social sciences can never use experience to verify their statemen

Re:This is problematic by dh003i · 2002-12-13 16:06 · Score: 2

Bullshit. Gutnick should only be liable to be sued in the country it's located in: no court in a nation other than where Gutnick is located has any authority over Gutnick. People and companies should be liable to the laws of the nation's they're in, and not those of any other nation.

--
social sciences can never use experience to verify their statemen

About the decision by MacAndrew · 2002-12-09 16:37 · Score: 2

Thanks for the link.

A few possibly interesting observations:

The most substantive is that some may wonder at the liberal citation of American precedent. The reason is something called choice of law, which in this cases tells the Australian court to look to American precedent in certain cases. We have similar legall traditions, but this must be quite difficult in some cases. I read one case where a serviceman sued an American company for a defective mortar or something; the place of injury tort law was determined to control -- in that case, Cambodian law.

There's no "e" in judgment -- weird lawyer thing -- no, I don't know why. This is apparently true in Australia as well as the U.S.

Australian law is ahead on the U.S. on this point: numbered paragraphs! American lawyers still cite page numbers, though few ever see physical pages. Paragraph numbering allows for for more precision, though I wish they could set them off a little, so it didn't feel as though you had someone slowly counting over your shoulder.

The tone is also more casual for a high court; American judges generally avoid using "I" in their judgments unless writing in dissent.

(Well, i think these things are interesting. :)

Re:About the decision by MacAndrew · 2002-12-09 16:58 · Score: 2

Oh thank God -- someone found my post interesting -- I know I can be a bit of a wonk. :)

Yeah, the status of published decisions in the States has been off, because obviously the opinions, orders, etc. are public domain, but the only practical way of researching them is through private firms, specifically West and, to a lesser extent, Lexis. West actually sued over its "star paging" -- which refers to physical page numbers in electronic docs. This monopoly will be short-lived once law firms get a little more cost-conscious. (For a while, one was supposed to cite to THREE separate pubs for every Supreme Court case -- very tedious to find the page numbers, esp. by hand.)

Your LII may have something in common with the Cornell LII (where I went to school) -- a painfully boring but wonderful resource of all the law that you can eat.

Anyway ... the more lawyers you have, the slower things are to change. That's why California and New York, our most populous states, have some of the most bizarre legal traditions. The smallest states just threw out the old, brought in the new.
Re:About the decision by cthugha · 2002-12-09 17:28 · Score: 2

Australian law is ahead on the U.S. on this point: numbered paragraphs! American lawyers still cite page numbers, though few ever see physical pages. Paragraph numbering allows for for more precision, though I wish they could set them off a little, so it didn't feel as though you had someone slowly counting over your shoulder.

Offtopic: Paragraph numbers have always featured in English/Australian judgments, although it is far more common to see page citations than parapoint citations. This is because it is easier to look up a page citation in a physical volume than a parapoint (for obvious reasons). However, as more and more research is done online, there is a gradual shift towards "medium neutral citation" such as parapoints so that both writers and readers don't have to haul their lazy a**es from their terminal to a bookshelf to look up a page citation. Just a bit of trivia to lighten your day :).
Re:About the decision by CommunistTroll · 2002-12-09 17:47 · Score: 2, Informative

The real discussions on Slashdot usually only interesting to a few people :)
Cornell LII isn't directly affiliated with AustLII the way, say CanLII (Canadian law) is, but they keep in touch...
CanLII is actually funded by a levy on the practicing certificates of Canadian lawyers, which is a perfect example of law firms doing an end-run around the legal publishing monopolies.
Btw, check out WorldLII, which contains stuff from most of the common law world (minus US) as well as links to stuff from all over. Much better then Findlaw :)
Re:About the decision by Jondor · 2002-12-09 19:45 · Score: 2

Ofcourse the lazy designers of those systems could easily create a cross-reference between pagenumbers and paragraph numbers so nobody has to get out of their comfy chair.
Of course this could easily evolve into virtual pagenumbers which don't exist in real life since the publications are never printed anymore. But he, why change something that works and everybody seems to be comfortable with..;)

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Nobody expects the spanish inquisition!
Re:About the decision by MacAndrew · 2002-12-10 01:38 · Score: 2

Actually -- I don't have a sample handy -- private online services already do provide cross-references using symbols in the text. I never picked up a printed volume except to (1) look for italics not in the plain-text computer version; and (2) to fix typos and such in the electronic edition. It's still a bore to type up -- especially since the pages and paragraphs align differently in different pubs.

The printed page will not go away for a while yet.
Re:About the decision by MacAndrew · 2002-12-10 02:16 · Score: 2

(1) What the heck is CommunistTroll doing plying the precedential waves? and (2) what makes you think an American lawyer gives a damn about what goes on anywhere else? :)

Actually there is money to be made in non-U.S. law affecting U.S. interests (as in, of all things, the original story here) and in "public int'l law" (PIL) which I though a joke until I had to persuade myself to take it seriously to pass the exam.

PIL is about relations among states, not individuals, and I had thought it all to be political; but some progress has been made in getting states to resolve their differences in a more or less rational way. One major problem has been the tendency of the United States to ignore embarassing decisions, as in Nicaragua, or to refuse to consent to jurisdiction in th first place, as with the int'l criminal court. I think the U.S. has some good arguments in its defense, but the general highandedness is unfortunate and damaging. Fortunately we took the high road on the Iraq question. Oh wait, no we didn't until Faction A in the White House lost out to Faction B, Colin Powell et al. I shudder to think that many people in other countries believe that all Americans act and think as one, but have been in some arguments abroad that illustrated the opposite.

REGARDLESS, thank you for the info, I am one American interested in what's going on in other places. When will there be AngloILL, consolidating all of the English-language stuff? :) And how does French law work again?

This has widespread implications by teamhasnoi · 2002-12-09 16:41 · Score: 2, Troll

especially since he's a white supremacist child molester who beats his neighbors dog and spits on old ladies' social security checks while wanking off in the food at the local soup kitchen watching beastiality porn.

This is Bill Gates we're talking about, right?

This ruling is discriminatory to the Internet by rollingcalf · 2002-12-09 17:38 · Score: 3, Insightful

They tried to say that they should not treat the Internet differently than other published media, but their decision singled out the Internet for special treatment.

If the libelous statements were made in a US-based newspaper, of which some copies were physically mailed to Australia, Australians would not have been able to sue the US publisher. But when the statements are on a US-based web site, which is "mailed" to Australia via the Internet, Australians can sue.

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There is inferior bacteria on the interior of your posterior.

DJ has Australian offices... by anonymous+cupboard · 2002-12-09 18:41 · Score: 2

This is not about some little company existing only in one country that was unfortunate enough to be hit on in another.

Dowjones has several Australian offices and it markets services there.

What is dangerous though is that it sets some dodgy precedents for reporting of less savoury regimes in, for example, Zimbabwe that like to keep criticism to a minimum. The BBC could certainly be hit in court for their reporting of Mugabe's administration (in earlier times they certainly had a bureau there(. One man's reporting is another's unjustified criticism.

Re:DJ has Australian offices... by rgmoore · 2002-12-09 19:35 · Score: 2

That worry has to be at least slightly tempered by the knowledge that Mugabe doesn't need a civil suit to make his displeasure known. It's not as though he's above appropriation of private property and threats of violence against people for no better reason than that they make inviting targets. If he wants to try to bully the BBC into giving him good coverage, he's likely to do so no matter what the Australian Supreme Court says about this case.

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There's no point in questioning authority if you aren't going to listen to the answers.
Re:DJ has Australian offices... by anonymous+cupboard · 2002-12-10 02:20 · Score: 2

The BBC has been banned from Zimbabwe for a while, but every despot likes to have an excuse to go after any critical reporting. If the excuse has been used in a western country, even easier.
I guess though that Australia suffers from a British-style approach to defamation because of the related legal systems, which often makes rich men very much richer.

Re:Terms of use, choice of law, and disclaimers by Zemran · 2002-12-09 21:33 · Score: 2

and as most countries do not recognise terms of use as being able top remove your rights the US would become the only place to NOT try the case...

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I love stacking my barbecues in the shed at the end of summer - you can't beat a bit of grill on grill action.

Re:New way from Americans to avoid the death penal by Zemran · 2002-12-09 21:35 · Score: 2

I know George Bush is keen on killing but I did not know he had brought in the death penalty in civil cases...

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I love stacking my barbecues in the shed at the end of summer - you can't beat a bit of grill on grill action.

Judgement by awol · 2002-12-10 01:42 · Score: 2

The judgement can be found at www.austlii.edu.au/au/cases/cth/high_ct/2002/56.ht ml

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"The first thing to do when you find yourself in a hole is stop digging."

Re:How does this set a new precident? by YrWrstNtmr · 2002-12-10 08:39 · Score: 3, Insightful

So in answer to a previous post, can a US company be sued in Saudi Arabia for publishing pornography on the internet? No, so long as that company has no presence in Saudi Arabia. However if a US company with a branch in Saudi Arabia publishes pornography then yes, because they have assets which are under the jurisdiction of the Saudi court.

Then quite a lot of western based clothing companies are theoretically treading on thin ice. Pornography, in Saudi, is not merely naked bodies. Bikini clad women count as well. So any clothing company that has a Saudi presence (and quite a lot do), and also makes/sells bikinis and probably has a catalog or ads depicting such, is, according to your statement, in danger of being sued by a Saudi court. Even if they do not export those particular items to Saudi Arabia.

So, the solution would seem to be either a) pander to the most restrictive countries on the planet, or b) do not sell goods anywhere but your own country.
I prefer C) this suit is a bunch of BS.

May not be as bad as it sounds by TekPolitik · 2002-12-10 10:18 · Score: 2

At paragraphs 51-52 of the leading judgement, there is a strong suggestion that even though Victorian law will be applied, the defences available in New York will influence the effect of Victorian law in the circumstances of the case. This is something that Justice Gaudron repeatedly suggested in the hearing (she delivered a separate judgement that I haven't gotten to reading yet, but the fact that the lead judgement includes this suggestion is promising since it means the position won't disappear with her impending retirement).

CORRECTION by Alsee · 2002-12-12 01:23 · Score: 2

Objecting that it is a stupid law was option (C)

Oops, I meant to say it was option (B).

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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.

Re:CORRECTION by Capsaicin · 2002-12-12 17:00 · Score: 2

Oops, I meant to say it was option (B).
Nope, Option B, was the 'King of the World' option. And btw, you haven't answered the direct question I put to you.

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke

Michael Moore by SecurityGuy · 2002-12-12 10:11 · Score: 2

I suppose you can call it prejudice if you like, but that's not the correct term. I have judged him, based on things he has had to say in the past in interviews and the like, I have not prejudged him. Nor is my expressing that opinion of him an ad hominem attack. I'm not trying to discredit his views or change your opinion. I'm using him as an example. Alienate your audience and they won't listen to you.

It's really as simple as this. There are a lot of things to do, and not enough hours to do them. There are a lot of voices clamoring for attention, and each one only gets to say so many things that, having heard, I judge not to have been worth listening to, before I cross them off the list of people worth listening to. If every post I wrote made you want to slap it with a -1 Flamebait, you'd probably stop reading them in spite of the fact that someday I might say something worthy of your attention. There would be other voices more worthy, and only so much attention to go around.

As for the movie, I may well go see it, but it's taken time and hearing from a number of people that the movie is worth the time to overcome Mr. Moore's prior comments which led me to write him off years ago.

my longest /. post ever. by Capsaicin · 2002-12-12 16:17 · Score: 2

I was going along with what you said to let you get where ever you were trying to go. You didn't go far enough to get a result answering my question.

Oh so you don't get it after all. I try to enlighten you.

Consider the nature of a crime. A crime, as you might know is constituted by the union of mens rea and actus reus, or in plain speak, the intention to commit a crime, and the actual action of commiting that crime. The effect on the victim, excepting only that they are a victim, is (or ought to be) irrelevant. Crime is a matter between the perpetrator and the state (or the community if you prefer).

Consider this hypothetical then. I am standing on the NSW side of the NSW/Victorian border, and I discharge a firearm with intent to kill (or to cause grievous bodily harm; or with 'reckless indifference'; or in the commission of a indictable offence) at someone standing on the Victorian side and my discharging of this firearm successfully kills that someone. Now where did the murder take place?

I don't think there is any precedent for this, so we can't know what the answer for sure, but the logical result would seem to be that the murder occured in NSW, where both the intent and act were located.

Now lets contrast this with the case of defamation. Defamation is a tort of strict liability, meaning that the intent of the tortfeasor forms no part of the tort (though it might be relevant in awarding damages). You might not want to defame someone, you might not think what you said did defame someone, you don't even have to be aware that there is anyone who was defamed by what you said. All that matters is that there is someone who could be defamed by your statement, that they had a reputation capable of being injured, and that that reputation was in fact injured. Unlike a crime, a tort is matter between the plaintiff and the defendant, the state is a stranger here, except insofar as it provides the forum.

So in this case the logical conclusion is that defamation takes place where the damage to reputation occurs. Since the defendants intent is irrelevant, and their bare statement is insufficient to constitute defamation (ie the same statement was published in Bumfukia, but since the plaintiff had no reputation there, no defamation occured there.) Not only is this logical, but, as you would know from your reading, there is firmly established authority here, Duke of Brunswick v Harmer (1849) 14 QB 185. That should be the end of the argument!

What the High Court was being asked to do was to create a special, and IMO illogical, exception to this long established rule, merely because of the Net factor. This is like the Communications Decency Act saying, sure there is freedom of speech, but if the Internet is involved it should be curtailed. Or that copyrighted material in digital form needs extraordinary proctection (in fact the invention of an entirely new species of intellectual property )etc.

If I'm standing nude in France, and someone sees it through a telescope inTurkey, ...

Fucking amazing telescope!

... the nudity occurred in France and you shouldn't try to apply Turkish law. I did something in France. Maybe I broke the law, maybe not, but it's French law that applies.

Given I have as little idea as you, about either French or Turkish law, I really couldn't say which law applies. I guess it depends on whether its a law against being nude, or a law protecting someone from seeing nude people through their telescope.

You need me to fill in more details?

I need just a little bit more than that actually. I need you to give me a hypothetical that can be afforded a sensible answer. As it stands your problem is rather like asking a mathematician this: Suppose a rational number r when divided by zero and multipled by pi equals 25. What is the value of r. Is it A) 5, B) pi, C) 25, or some other rational number? Like the mathematician, I am forced to choose option D) Your problem is wrong.

It's a random bad law in a random contry. ... The point is that some country has some sort of law against it.

This is one way your problem is wrong. And I hope that the foregoing discussion of the differences between murder and defamation make it clear that talking about "some sort" or "random bad law", is just hopelessly vague.

Perhaps in YOUR country, but maybe Bumfukia has the death penalty for civil violations.

This confusion of criminal and civil law is another way your problem is wrong. Sure Bumfukian law may not distinguish between what we conceive of as criminal and tort law and might prescribe the death penalty for what we would properly consider civil causes. However, to execute me, I presume, Bumfukia would like to have access to my person (I don't know, perhaps execution in effigy suffices in Bumfukian law), and I'm not just going to go there and turn myself over. Therefore they will have to try to extradite me, and at this point the criminal (and in fact treaty) law of my country comes into play. First of all there has to be some extradition arrangement between my country and Bumfukia (which there isn't, so I'm safe). Secondly extradition law applies only to serious offences (which this isn't) and protects the person to be extradited from oppression (which this would be), usually by requiring that there be some equivalent criminal offence in the extraditing country (which there isn't).

Again contrast this with foreign money judgements, which are respected between countries even in the absence of bilateral arrangements and even when no similar cause of action exists between in the country making good the foreign money judgement. (For the US law regarding foreign money judgements, see my earlier post on another branch of this thread.)

Again, the law of YOUR contry is irrelevant.

Now this is perhaps the greatest source of your misunderstanding. As you now know, (I assume you took the foregoing explanation in) the law of my jurisdiction (and indeed the law of Dow Jones' home jurisdiction), is highly relevant. It is because of the fact that US juridictions will honour the money orders made by Australian courts that US companies have to fear Australian courts, even when, as is the case with Dow Jones, they have no corporate presence within Australia.

OK, maybe this is not entirely the only reason they have to fear Australian courts, and Gutnik v Dow Jones is a case in point. In the case of defamation the primary remedy the plaintiff seeks (especially a filthy rich plaintiff like Gutnik), is not the money order, but the vindication of their reputation in a court of law. Conversely Dow Jones has got to be worried that, if they fail to make out a truth or truth+ (whichever applies in Victoria) defence, that the entire world will know that they simply make up shit about people without having the facts to back it up. I'm sure Barrons would like to be thought of as being more authoritative than that, which is probably why they wanted to fight in a jurisdiction where they didn't have to prove truth.

Bumfukia defines the use of itallics as civil defamation of the presiden's dog, and the law imposes the death penalty. Do you understand the law now? You think it's a dumb law, *I* think it's a dumb law, but it's a Bumfukian law. Objecting that it is a stupid law was option (C).

I don't work on the dichotomy dumb (or bad) law vs good law. I work on the dichotomy valid or invalid law, and I have no trouble in accepting the hypothetical validity of the Bumfukian law. That being the case, the question resolves itself into one of asking how enforcable Bumfukian law will be in my jurisdiction, which as we have seen is not very. Alternatively it might concern me that people would think I was the kind of person to use italics, which clearly doesn't worry me either!

Now assuming Gutnik wins his case in Victoria, should he decide to try and actually get the money (he might be wise not to), the issue of enforcibility would again arise. I am not an American lawyer, but I would guess that Dow Jones would raise 1st Amendment arguments, when Gutnik goes to the NY, or NJ court with the Victorian order, and, given the current free speech jurisprudence of the Supreme Court, that defence might just fly. Though as I have noted, this would be a consolation prize for Dow Jones, who would have been exposed as scheissters in the Australian court. Of course it might not be Dow Jones who end up with the egg on their face. Remember Oscar Wilde and the risks of suing in defamation though, it may be Gutnik who will rue the outcome.

And if the exact same text had been painted on the side of my house rather than placed on a computer would they have ruled the same way? (I don't know.)

With what I've taught you, you ought now be able to answer that for yourself.

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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke

Re:my longest /. post ever. by Alsee · 2002-12-14 04:38 · Score: 2

Oh so you don't get it after all

I think we are having a breakdown in communication / thought styles. You don't seem to be following my intent either.

I see you making good rational arguments, and I respect that. We just aren't quite communicating fully. Kinda facinating in a way. That's why this reply is delayed, I threw out my original response and made this one which is very different.

I think that my idea of the correct solution is a lot closer to your idea of a correct solution than you realize.

If you think what I'm saying leads to injustice then there's probably more that I didn't explain or that you didn't catch. For example you mentioned extradition, foreign money judgments, bilateral arrangements, and that:

US jurisdictions will honour the money orders made by Australian courts

Great! These are perfectly good solutions! That's what I want! Go for it! Nail the bastards to the wall! Weeee! More exclamation points!!! (I was working on this post for quite a while and needed a silly-break :D )

If these kinds of solutions completely fail then there is a problem, but it is not with the individual*.

Your NSW/Victoria shooting example seems to indicate that you think that my position would let people get away with murder. I kinda hope you didn't think that was my intent :)

Let me make two tweaks to that example to show exactly what my point is:

Tweak 1 - NSW and Victoria are Australian states, right? Everyone involved is properly within jurisdiction of Australian federal law which should resolve it. So lets make it two different countries, Australia and the US (the shooter used a fucking amazing gun, chuckle).

Tweak 2 - You phrased it as a simple case of murder. There should be no problem getting cooperation to convict or extradite+convict. There is only a problem when the laws conflict: A person in Australia kills a person in the US and according to US law it was murder but according to Australian law it was perfectly legal self defence.

Should the Australian's behavior conform to the US definitions of murder and self defense when he fires at an American while standing in Australia? Or should he behave according to the Australian definitions?

In my opinion he absolutely should conform to Australian law.

There is a conflict but my point is that the conflict is NOT between the Australian shooter and US law. The conflict is that the governments dissagree. If the US finds a way to "get him" anyway it doesn't make him guilty any more than failing to reach him makes him innocent.

If the US believes its citizens are being harmed by law-abiding Australians then the US government needs to take the issue up with the Australian government, NOT with law-abiding Australians.

No solution is perfect, but I'm saying that when laws conflict is it an issue for governments to resolve. When the governments cooperate then I'm aguing for is virtually identical to positive aspects of what you're arguing for. US law says defamation is illegal. I believe US law also says that the harm occurred in Australia. Any way the two governments decide to resolve it should yield a reasonable definition of justice even if it does not exactly match the US definition or the Australian definition. Remember, one option is for the US government to give the Australian courts jurisdiction over defamation arising in the US. Another is to honor the Australian court money order.

The "recipe for disaster" I see is governments trying to regulate events occurring in another country against that country's will. (If it wasn't against their will then it would be cooperation and it would be the same as my solution.)

If the two governments can't come to any resolution there's a pretty good chance that either (A) it's a law that shouldn'tT be enforced in the second country (Bumfukian itallics law), or (B) you have crimes being committed under the protection of a bad government which is an entirely different level of problem.

I see a problem with good and law-abiding people being hurt foreign laws they never heard of.

I see a problem with trying to apply laws from 200 different countries to a single act.

I see a problem if it is essentially random what laws actually do and don't get applied (whoever can figure out a way to seize assets or get their hands on the person).

Crime is a matter between the perpetrator and the state

Yes - the state that has jurisdiction over the act. That state should have laws preventing him from harming people in other countries. That state has the ability itself to apply foreign laws to him. That state has the ability to grant jurisdiction to foreign court. They have the ability to turn him over bodily.

* These are the rights and responsibilities of the government the criminal acted under. If there is a failure to reach justice it is a problem between governments.

Violating this is essentially the equivalent of force or violence between governments. It may be legitimate during military actions, but during peace it is characteristic of "evil" governments. It should be unnecessary between reasonable governments.

P.S.
Feel free to ignore this section:
As for our trouble communicating, any chance you know your personality type? I'm INTP. I look at the forest and ignore the trees (iNtuitive), I think you look at the trees and ignore the forest (Sensing). I think that may be why my examples seemed "hopelessly vague" to you, N vs S. Again, I'm not placing blame. It's just different ways of thinking about things.

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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
Re:my longest /. post ever. by Capsaicin · 2002-12-15 19:39 · Score: 2
I think we are having a breakdown in communication / thought styles.

OK, I'll try to make my position perfectly clear. Firstly, I'll recant from my previous post, and I'll accept that there can be such a thing as a good and bad law. What I'm saying then is that it is bad law, to invent (either curially or legislatively) new law, merely because of the involvement of some apparently revolutionary new technology. Of course there will be occasions when the existing legal framework doesn't cover new technology and some new law will be necessary (eg. computer [h(?:cr)]acking). But in general, where the rules we have worked out over the last 800 years do cover the field, we ought to let them go and see how things pan out. As a case in point consider the US cyber-squatting laws. Those jokers in Congress actually criminalised the registration of prospectively lucrative (because they properly belonged to the business good-will of established companies) domain names. Yes, no doubt this was a nasty kind of profiteering, yes the squatters should have been given their marching orders, but what was not necessary was any new law, let alone a new criminal law. In Victoria again, a cyber squatter was undone merely by the application of good old fashioned Equity.

Let the system or rules that have been set up do their work, don't rush into making new law just because one of the parties mutters the magical incantation 'Internet.' In this case the High Court was being asked to upset a rule already accepted for ca. 150 years, for no other reason than that this incantation had been muttered. They refused. This is good law.

Assuming Gutnik wins (which we ought not to take for granted) he can then either decide to rest there (probably his best choice) and the rest of us will know that Barrons doesn't do good 'fact checking' journalism, fine. Alternatively he can take the next legal step and take the money judgment to a New York Court (where Dow-Jones is incorporated), and ask them to order payment.

Now I said (and you quoted me) US courts will honour Australian (or other jurisdictions) judgments. I should have said, subject to a number of provisos (everything in law is subject to a number of provisos.)

In the US, foreign money judgments are governed either to the common law, (as set out in Hilton v Guyot, a case where a foreign money order was actually refused 5-4, but which sets out the rules of when they will be honoured at common law), or where they have enacted the Uniform Foreign Money-Judgments Recognition Act, by statute. The main difference being the requirement of 'reciprocality' in Hilton, which would not matter here, since Australian courts will also, generally, honour jugments of the US, and its several states. NY, I am led to believe, has the Uniform Act in place.

Now if Gutnik goes to the NY courts, he should fail at first instance. This is because the Uniform Act gives as a possible reason for non-recognition the case where "the cause of action or claim for relief on which the judgment is based is repugnant to the public policy of this [state]". As it happens a NY court has already reject a foreign libel award on this basis, Bachchan v. India Abroad Publications, Inc., 585 N.Y.S.2d 661 (Sup. SCt. N.Y. Co. 1992). I understand, the court thought that the judgment negatively impacted upon US free speech rights. (Unfortunately I've not been able to get a copy of the opinion to read for myself, so I'm relying on secondary sources here). Gutnik would have to be hoping for better luck on appeal: Does the 1st amendment form part of the 'public policy' of the State of New York?

Assuming additionally that he doesn't get it (which seems a likely outcome to me), what would have been the result?
- Gutnik would have had his reputation vindicated by a court in the jurisdiction where he resides most of the time and where he has, up till now, enjoyed a good reputation.
- Dow Jones would have escaped any pecuniary punishment for a style of journalism which (perhaps unfortunately) reflects the mainstream practice in their home jurisdiction.
- The public would have been alerted to the reliability (or lack thereof) of items the read in the pages of Barrons.
This is the likely outcome of the extant set of legal principles which come into play. Is this really such a bad outcome? I don't think it is, and for this reason, I cannot see the HC's decision as 'disasterous'.
If these kinds of solutions completely fail then there is a problem, but it is not with the individual*.

Yes, indeed. Where the law goes off the rails, it is more properly the role of the legislature to remedy the ill (or in a case such as this, perhaps the executive through its treaty making powers). Although it is within the power of the High Court to do so, this is a power they should excercise only rarely. Again, the conservative judgment they made is to be prefered. Moreover, as I have just argued, it seems to me, the existing legal framework will deliver a beneficial outcome.

Your NSW/Victoria shooting example seems to indicate that you think that my position would let people get away with murder. I kinda hope you didn't think that was my intent :)

Not at all, I only thought you wanted to let people get away with defamation ;) Seriously though, I only described this to illustrate how in different legal situations the 'location' of a crime or tort has to be worked out differently, why murder 'happens' where the trigger is pulled, and defamation 'happens', so to speak, where the bullet finds its mark.

Tweak 1 - NSW and Victoria are Australian states, right? Everyone involvedis properly within jurisdiction of Australian federal law which should resolve it. So lets make it two different countries, Australia and the US (the shooter used a fucking amazing gun, chuckle).

Or an ICBM. A couple of points here. Firstly in my example the murderer and the victim are not in the federal jurisdiction in the sense that there is no federal crime of murder (as there is of smuggling), this remains a matter for state law. It is true, however, that in any conflict of law, both NSW and Vic will be in the jurisdiction of the High Court. The second point is this, from the point of view of the High Court, it makes no difference whether the dispute is between parties from Victoria/NSW, or Victoria/New York, the same conflict of law principles apply. As regards money judgments, the situation in the US is quite different. There the judgments of other states are to be respected as a matter of constitutional law, whereas foreign judgments fall either under the common law principles of the Uniform Act, as outlined above.

Should the Australian's behavior conform to the US definitions of murder .. or should he behave according to the Australian definitions? In my opinion he absolutely should conform to Australian law.

And as a matter of pure legal principle that is the case, because murder is located where the intent and act (pulling the trigger) occur. However, the entire point is that completely different principles apply with regard to the tort of defamation (and for very sound reasons -- see my last post), where the tort occurs in the place that the reputation is damaged. For this reason it is best to leave anything resembling a criminal offence, or what our (US and oz) law would see as criminal sanctions, out of any analogy or hypothetical which aims to elucidate the principles involved in the instant case. It will just add confusion

The reason I chose to put the murderer and victim on either side of state rather than national boundaries was to avoid the inteference of Realpolitik in the problem. Consider this, some guy with a beard and lots of money sitting in a cave in Afghanistan, organises, plans, trains, funds, or otherwise supports, some suicide agents who fly hijacked planes into a couple of tower office blocks in New York. Now according to the principle you set out (which is in fact correct in criminal law), he should be subject to the laws of Afghanistan. They say, nope, its not murder, it is fighting 'The Great Satan.' (Well actually they said, "prove it"). Now whatever the purist legal theory might say, nobody is going to expect the US just to wear that, are they?

But in any case we really should leave criminal law entirely out of the equation, since, as I have tried to make clear, entirely different principles operate in respect both to defamation and to the honouring of foreign money judgements, which are the two legal issues dominating Gutniks battle with Dow Jones.

I see a problem with good and law-abiding people being hurt foreign laws they never heard of.

That is true also of law-abiding people being hurt by their own laws that they've never heard of. It's tough, but whether you go hurling ICBMs around theglobe at random (oops, that would be criminal, wouldn't it), or you go hurling potentially defamatory statements into cyberspace, you are accepting the risk that you'll run afoul of someone's laws.

I see a problem with trying to apply laws from 200 different countries to a single act.

In answer to this, the High Court pointed out that identifying the person on whom you are doing the hatchet job will almost always identify the jurisidiction with which they have a 'reasonable connection.' Note that if the connnection is merely spurious, such as some cases of Americans suing American papers in Britain (strict libel laws), the courts of those fora are likely to stay proceedings on forum non conveniens grounds, see for instance Chadha v. Dow Jones & Co., Slip Opinion (High Ct. of Justice, Queen's Bench Division, 1997). Yup, Barrons again, they won that one though.

I see a problem if it is essentially random what laws actually do and don't get applied (whoever can figure out a way to seize assets or get their hands on the person).

Don't worry, it's not essentially random, except in the rare occasions when you are unlucky enough to defame someone you didn't know existed. (Which is where, imo, Anglo-Australian defamation law has gone down a wrong track.)

OK, those are your concerns, but consider for a moment, how it looks from our perspective. The importation of 1st amendment principles into defamation law (which makes little sense really) in NY Times v Sullivan, has created in the US a 'truth-free zone' (ironically, since the 1st amendment was arguably supposed to ensure a better informed public). No matter what individual rights we may have in our personal reputation in our own jurisdicitons, publishers are able to snipe at our dignitas, by hiding behind the deformed defamation laws in the US. (If I were to use the criminal analogy I say we shouldn't, this is rather like having an Afghanistan giving shelter to terrorist taking pot-shots at us -- but that would be terribly over-melodramatic, so I won't use it :P ).

What remedy do we have to protect us from this abrogation of our individual rights?
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Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
Re:my longest /. post ever. by Alsee · 2002-12-17 19:22 · Score: 2

Man, this post is taking me forever. You missunderstood alot of what I wrote, and I keep spotting where I missunderstood you and having to overhaul my post.
Gahhhh!

Assuming Gutnik wins
Assuming additionally that [US does not award $]
Dow Jones would have escaped any pecuniary punishment
Is this really such a bad outcome? I don't think it is

That's perfectly fine outcome! We agree.
I said "Great! These are perfectly good solutions! That's what I want! Go for it! Nail the bastards to the wall!".

I had the impression that your position was that Australian court would enforce collection against local Dow-Jones assets. If you think the Australia should NOT take the extra step of punishing Dow-Jones itself then perhaps we are in perfect agreement. That is the only step I objected to.

What I saw as "disasterous" would be taking this:
The landmark judgment means material published on the internet is deemed to have been published in the place it is viewed online, not the country of origin.
and claiming Australia has authority to punish the act of publication BECAUSE it occured where it was viewed and/or because of the local harm.

That logic would allow 200 countries to punish someone for a photo on the web because it was published in every country and because they claim harm occured in their country. (The photo could be anything from a picture of a cow to a tastefull nude to kiddy porn.)

Can you imagine the problems if every court on earth started trying to punish law-abiding people in other countries against the will of those other countries?

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other junk, feel free to ignore any/all of the below.
I should probably delete some sections and clean up others, but I need to get to bed.
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don't rush into making new law just because one of the parties mutters the magical incantation 'Internet.'

I absolutely agree with you! I'm saying that the act of putting the information on a webserver occured in the US, and the US government has the responsibilty and authority to impose punishment for acts that occur in its jurisdiction.

I can't imagine any Turkish law that would have the authority to punish a law-abiding person standing on a nude beach in France.

Does the 1st amendment form part of the 'public policy' of the State of New York?

I'm no lawyer but I can confidently say that constitutional rights would at the top of the list. I asure you that preventing harm to Australians is also NY 'public policy'. The US and Australia may balance the two differently, but they both make reasonable approximations at "doing the right thing". The 1st amendment is not carte blanche to slander people.

there is no federal crime of murder

You misunderstood me, I meant federal law would properly grant the required authority to NSW or to Victoria. A state would then have legitimate authority to punish the act, therefore no problem. That's why the example needed to be international.

according to the principle you set out [Bin Laden] should be subject to the laws of Afghanistan

Right, and the Afghanistan government is responsible to other countries for activities it allows. Arresting Bin Laden would solve nothing. Diplomacy failed, thus war. At that point the US could deal with Bin Laden as a military matter, or after winning the war they could ensure that Afghanistan has laws to deal with Bin Laden.

That is true also of law-abiding people being hurt by their own laws that they've never heard of.

Then they aren't actually law-abiding but that isn't the point, the point is that they are properly subject to those laws.

publishers are able to snipe at our dignitas, by hiding behind the deformed defamation laws in the US.

You should have stuck with only arguing valid laws vs invalid laws :)

In your opinion the US law is "deformed". I'm sure it's the opinion of some Chinese that publishers hide behind "deformed Australian defamation laws" when they snipe at Chinese official's dignities. I could also claim that Australian "defendants" hide behind "deformed defamation laws" in Australia when they snipe at US publishers with megabux lawsuits. (Note that I said I could make that claim. Not that I am.)

>I see a problem if it is essentially random what laws actually do and don't get applied (whoever can figure out a way to seize assets or get their hands on the person).

Don't worry, it's not essentially random, except in the rare occasions when you are unlucky enough to defame someone you didn't know existed.

Re-read what I put in parentheses. It is random what contries can punish me for a website with a nude photo - whoever can figure out a way to seize assets or get their hands on me - THAT is what is random. Your earler said Bumfukian laws are not very enforceable - that is essentially random. Maybe your bank has a Bumfukian branch and they fine you for using itallics. It's pot luck weather Bumbukia gets to punish you.

What remedy do we have to protect us from this abrogation of our individual rights?

In the range where the governments dissagree on what is right I can say the exact same thing about protecting the publisher's 1st amendment rights. Both rights are legitimate. Each government is striking a balance between conflicting rights, it's just that they each struck a slightly different balance.

I hope its clear that in most cases the US will gladly punish the offenders or grant the authority for you to punish them. In the narrow range where US and Australian law conflict and the US will not punish there are still several options: declaritory judgments, working on a diplomatic resolution to the conflict, judgements against the government, sanctions, force, and probably others. If Australia finds the harm unacceptable and all else fails there's always war*.

Punishing Dow-Jones without US consent falls into the catagory of use of force above (even if it is a purely economic use of force). I don't think good governments should need to use force with each other. At a minimum they need to realize that it IS a use of force. *And yes, this option should be selected long before war, lol.

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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.

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