Talk:Dow Jones & Co Inc v Gutnick

Great article, but the last paragraphs read like a position paper rather than an NPOV encyclopedia article:

Such statements are dramatic and, for the most part, wrong. The Gutnick case was decided under Australian law. Although it is true that most legal systems provide for jurisdiction in relation to damages suffered within the forum, the outcome of this case cannot reasonably be seen as a valid indication of how the courts in 190 other nations will decide similar disputes. Further, if this judgment appears frightening for those who “values freedom of expression”, a judgment in favour of Dow Jones would presumably appear equally frightening to those who values the right of reputation? – another basic human right widely considered just as important as freedom of expression. It is also imperative to remember that criminal cases, like the arrest of a journalist in Zimbabwe, are treated completely differently than civil cases, like the Gutnick case. The suggestion that “dictators everywhere” would be more inclined to exercise jurisdiction over Internet activities after the High Court’s decision in the Gutnick case is ridiculous. For example, the rules of private international law in the People’s Republic of China already allows for jurisdictional claims over a situation like the one in the Gutnick case. Indeed, most states’ rules do so, including the American rules. There was no dramatic increase of jurisdictional claims after the Yahoo! decision in France, and there will most likely not be any such increase after the Gutnick case either.

Perhaps the issue here is that you've selected a single, isolated example with which to argue the entire opposing side (the arrest of a journalist.) Most opponents that I've heard argue about the economic consequences caused by increased legal exposure, rather than (as you point out) irrelevant criminal arrests made by a dictator.

Furthermore, you compare the Yahoo case with this one, without explaining the major difference, which make this case so interesting: a lack of a business presence within the jurisdiction. Dachshund 17:21 21 May 2003 (UTC)

I have removed much of the material from this page, as a result of an unintentional infringement of copyright - I thought I had permission to reprint it. Please do not restore the page. - David Stewart

Re my 06:12, 5 January 2007 edit

I came on this article via a wikilink from http://en.wikipedia.org/wiki/Slander_and_libel#Australian_law, strictly as a matter of passing interest. I noted that the settlement figure mentioned here differs from a figure mentioned by Barrons, so I added a {{fact}}. I also added an External link to the relevent Barrons page.

While browsing around, I came across some interesting further discussion of this case which raised an interesting point not currently mentioned in this article. The article says, The High Court's ruling effectively allows defamation plaintiffs in Australia to sue for defamation on the internet against any defendant irrespective of their location. As I understand the further discussion, going back to 1849 English precedent Duke of Brunswick v. Harmer (1849) 14 Q.B. 185, suit is also allowed to be brought without time limit since delivery of each copy of a defamatory item constitutes a separate publication. See http://paulwatson.blogspot.com/2002_12_08_archive.html#85827687 and pages linked from there. -- Boracay Bill 22:37, 4 January 2007 (UTC)

Business presence

Reading between the lines of the article, and going by the comments above, it appears the suit was against a U.S. legal person who did not have a presence in Australia. Is my inference correct? Either way, could someone expand the article to explain this issue please. The question that comes to my mind that I hope the article can address is, how did the Australian court intend to enforce a judgement, if the claim were not settled. --Hroðulf (or Hrothulf) (Talk) 09:15, 17 June 2008 (UTC)

The Australian court could not enforce a judgment. However, private international law issues are in some cases seen similarly by different countries. It is often the case that plaintiff A in country X has his action against defendant B in country Y upheld by a court in country X and the court of country Y will enforce the finding of court of country X.

There are several famous recent cases of Australians who have been charged overseas for offences committed overseas. In several cases it was mooted that either their cases be heard in Australia, or their sentences be enforced in Australia. However, Australia has not been in a strong position to make such requests. It has also been particularly difficult in cases where sentences in countries where the people have been convicted are not available to Australian courts to enforce—in one case a public flogging, in another the death penalty. In other cases, although unspoken, custodial conditions in the sentencing country are part of the punative and disincentive nature of such sentences. Most of these cases have involved Australian citizens who have been found guilty of attempting to smuggle drugs.

Without meaning to be tasteless about the pun, they say possession is nine tenths of the law, there's a politics being the art of the possible component also. It's one thing for Australia to face facts that if its citizens break local laws abroad, that country calls the shots. One curious thing about the case covered by this article, though, is that a party was deemed to have infringed Australian law in Australia, but without being physically present.

I suspect there may be an element in this case that even were matters heard in New Jersey rather than Victoria, the New Jersey court would have upheld the complaint. In the abstract, US laws permit a wider class of publications to be immune from prosecution under libel laws; however, there are plenty of libel suits upheld in the US too. Dow Jones sensibly wanted the case heard where they stood the best chance, Gutnik wanted them heard where he had the best chance. The Australian judges noted this and commented "it is usual" and "not reprehensible" (or words to that effect).

As a financial risk, it was probably worth seeking for a hearing in a different venue; however, once decided, it was probably not a good financial risk to try to have things reheard in New Jersey. The New Jersey court may have found nothing unreasonable about the Victorian finding, save perhaps the more abstract issues of where the matter should have been heard. US courts may defend their citizens from from foreign defamation findings in respect of fair criticism, but making allegations of fraudulant business activities out of proportion to any proffered evidence is not a matter of free speech, even in the US.

So, short answer: a New Jersey court could have been asked to enforce the Victorian decision, and may well have done so, awarding any additional costs involved to Dow Jones. New Jersey doesn't have to dance to Victoria's tune, but they may well have simply agreed they could tango. Alastair Haines (talk) 09:11, 31 December 2008 (UTC)

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