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Gutnick Can Pursue Dow-Jones Libel Case
Anonymous Coward writes "Libel cases based on Internet material could be mounted anywhere in the world, after a landmark judgment handed down by the Australian High Court today. International news service Dow Jones failed in its bid to have a defamation action brought by mining magnate Joseph Gutnick heard in the United States."
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.
Fight Spammers!
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
I suppose....
Get your case heard in a non executing country.
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.
Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
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.
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.
#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
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.
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
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.
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.
For a scholarly, but readable roundup of Australian Defamation Law and the Internet I'd recommend:
m l
http://www.efa.org.au/Issues/Censor/defamation.ht
'There is a Light that never goes out.'
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
Limekiller
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.
social sciences can never use experience to verify their statemen
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.
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.