The Times: The perils of internet libel
Publish online and be damned: David Rowan on internet libel
IT SOUNDS absurd that an Australian legal judgment could imperil the greatest publishing revolution of recent years. But as internet lawyers and free-speech advocates pored over the Australian court's ruling last night, a consensus was emerging that the case of Joseph Gutnick vs Dow Jones could make the web a far tamer and less outspoken place.
For any comments you post online could in future be challenged in the world's most restrictive courts, whether you are an international media mogul or a teenager updating a personal weblog.
The global significance of the case was underlined by the procession of international media companies keen to give evidence to support Dow Jones, including CNN and Yahoo. They knew that if Mr Gutnick were allowed to sue the American publisher in his home state of Victoria, no web publisher anywhere in the world would be safe. In the relatively young field of internet law, the judgment - the first by a nation's highest court on where an internet libel claim may be brought - is likely to be an influential precedent.
"If an English court was faced with the same situation, then the Australian decision would be read and considered in great detail," Graham Smith, a partner in the London office of the law firm Bird & Bird, and author of Internet Law and Regulation, told The Times. "It doesn't mean that an English court would go the same way but this ruling does apply the argument that litigation can occur where publication takes place."
Mr Smith said that the decision was "disappointing but no real surprise". He believes that a consequence will be the "chilling effect" of the most restrictive jurisdictions coming to dominate what is published online. "What is most disappointing is that the judges seemed to be saying that, if you choose to publish on the web, then you do so knowing it's a global medium and you take the consequences even though you may have no practical means of restricting access," he said.
By deeming the web to be fundamentally no different from newspapers or television, the judges held that publication occurs at the point where material is read, rather than simply where it is uploaded or stored in computer servers.
Media companies were given a warning last night to maintain constant vigilance. Alex Daley, head of the Association of Online Publishers, said: "Interactive publishers must be aware of the risk they take in putting material on the web, as repercussions can occur throughout the world."
Publishers are bound to be less forthcoming online, knowing that a libellous article would have a potentially far wider readership than in print.
Dr Yaman Akdeniz, the UK director of Cyber-Rights & Cyber-Liberties, which promotes free speech online, said: "Multinational companies like Dow Jones will be much more careful about what they publish on the internet, and that will result in self-censorship. This decision will encourage forum shopping for defamation claims around the globe."
Forum shopping is the practice by which a claim is brought in the country considered likely to produce the most favourable verdict.
A New York court recently refused Banamex, the National Bank of Mexico, permission to sue a Mexican journalist in New York for an allegedly defamatory article that appeared online. But this week the Australian judges have taken a far tougher view, suggesting that publication has taken place wherever an article is read or downloaded.
(The Times, December 11, 2002)
IT SOUNDS absurd that an Australian legal judgment could imperil the greatest publishing revolution of recent years. But as internet lawyers and free-speech advocates pored over the Australian court's ruling last night, a consensus was emerging that the case of Joseph Gutnick vs Dow Jones could make the web a far tamer and less outspoken place.
For any comments you post online could in future be challenged in the world's most restrictive courts, whether you are an international media mogul or a teenager updating a personal weblog.
The global significance of the case was underlined by the procession of international media companies keen to give evidence to support Dow Jones, including CNN and Yahoo. They knew that if Mr Gutnick were allowed to sue the American publisher in his home state of Victoria, no web publisher anywhere in the world would be safe. In the relatively young field of internet law, the judgment - the first by a nation's highest court on where an internet libel claim may be brought - is likely to be an influential precedent.
"If an English court was faced with the same situation, then the Australian decision would be read and considered in great detail," Graham Smith, a partner in the London office of the law firm Bird & Bird, and author of Internet Law and Regulation, told The Times. "It doesn't mean that an English court would go the same way but this ruling does apply the argument that litigation can occur where publication takes place."
Mr Smith said that the decision was "disappointing but no real surprise". He believes that a consequence will be the "chilling effect" of the most restrictive jurisdictions coming to dominate what is published online. "What is most disappointing is that the judges seemed to be saying that, if you choose to publish on the web, then you do so knowing it's a global medium and you take the consequences even though you may have no practical means of restricting access," he said.
By deeming the web to be fundamentally no different from newspapers or television, the judges held that publication occurs at the point where material is read, rather than simply where it is uploaded or stored in computer servers.
Media companies were given a warning last night to maintain constant vigilance. Alex Daley, head of the Association of Online Publishers, said: "Interactive publishers must be aware of the risk they take in putting material on the web, as repercussions can occur throughout the world."
Publishers are bound to be less forthcoming online, knowing that a libellous article would have a potentially far wider readership than in print.
Dr Yaman Akdeniz, the UK director of Cyber-Rights & Cyber-Liberties, which promotes free speech online, said: "Multinational companies like Dow Jones will be much more careful about what they publish on the internet, and that will result in self-censorship. This decision will encourage forum shopping for defamation claims around the globe."
Forum shopping is the practice by which a claim is brought in the country considered likely to produce the most favourable verdict.
A New York court recently refused Banamex, the National Bank of Mexico, permission to sue a Mexican journalist in New York for an allegedly defamatory article that appeared online. But this week the Australian judges have taken a far tougher view, suggesting that publication has taken place wherever an article is read or downloaded.
(The Times, December 11, 2002)
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