Liable wherever content is downloaded?!

[powertoad5000]

From New Order:

An Australian High Court ruled that Australian courts will hear a defamation case brought by Australian businessman Joseph [Gutnick] against online publisher Dow Jones. Dow Jones made an appeal to the High Court that case should be heard in the United States because the article was published in that jurisdiction. The High Court "ruled that the news organization was subject to Australian law because the article in question was downloaded in Australia." News organizations fear that the ruling could have worldwide implications. Dow Jones representatives said they would continue to defend the case.

Dow Jones to defend the action - Sydney Morning Herald
Court Rules Internet Case Can Be Heard in Australia - Reuters
Gutnick welcomes High Court decision - ABC News Online
Aussie Net libel writ extends to world+dog - The Register
Australia allows high profile internet defamation case - Ananova

Although I'm not an expert on international law or anything, I think that if someone were to be prosecuted for content they had uploaded to a computer, they should be prosecuted in the state/country where the computer resides. The obvious implication of this ruling is that this businessman could find the country that most favours his current situation and has the best chance of ruling in his favour, move there, download the content, and bring his case again. To save this sort of exploitation from occurring, I think people should only be prosecuted where the computer/webserver resides.

What do you guys think of this ruling?

[Phat_Penguin]

I have been following this since the news broke (here anyway) yesterday.

I went off and did a little research on this one before making any comment, but apparently Gutnick has been accused of having dealings with Nachum Goldberg, who was jailed last June for using a bogus Israeli charity to launder more than $40 million. An allegation Gutnick denies and says has damaged his business profile (in Australia - where he does business).

This is in reaction to a specific allegation against a specific individual and because of the internet it can be read with ease anywhere, unlike printed press where the cases of defamation tend to be where the article was printed - boils down to distribution I guess. This article was on a subscribed site so the target audience would have been fairly high profile business-people worldwide - some who do/did have dealings with Gutnick. He is still going to have to prove how his reputation was damaged by the publishing of the article.

I dont think it threatens free speech, I have always said, with free speech come responsibility to back up what you are saying with valid arguements/proof - so if Dow Jones can back up the story with proof they have nothing to worry about. A case of putting you money where your mouth is.

I guess the nature of the internet will make this an intersting case. In theory someone could hide behind a webserver in some obscure part of the world and spread their hate and lies with impunity, if this case fails.

If it succeeds, I guess more research will go into articles before they are made available on the web, not necessarily a bad thing.

Bit of background is here ... http://old.smh.com.au/news/0106/07/b.../biztech5.html

I am sitting on the fence with this one and will be following the case to see where it leads, with interest.

This is bound to generate some lively discussions.

[Terr]

Well, it's tricky in that the transaction to view content on the internet involves bi-directional traffic across national boundaries...

But I'd rather liken it to a big monument on a border. If you built a big sign in America, and someone could read it in Australia... If there's a problem with the sign you go complain in America. Allowing the viewing-country juristiction would be absolutely rediculous, every company with an internet presence would have to adhere to the laws of every country in the world...

[Phat_Penguin]

Terr, ok, for the sake of the discussion I'll play the devil's advocate.

I'm sitting here in semi-outback Oz surrounded by kangaroo's and koala's and I get a ping to randomly send off thousands of letters worldwide which contain lies/untuths about you. Some of these letters reach your part of the world and fall into the hands of your friends, and feeling there may be some truth to my dellusional ramblings, they begin to shun you as do your business associates. Your reputation had been damaged and you start losing money, social standing, your wife leaves you and your dog bites you on the leg etc ..... (you get the idea )

I wrote these letters in Australia, on Australian paper and posted them from an Australian post office - where has the crime of defamation taken place ?. At my desk in outback Oz, at the post office where I stored my letters before sending them, I think not.

I bet I am dragged into a U.S. Court, kicking and screaming to answer the charge - and rightfully so.

I believe the answer here is not where the problem was created but where it manifested itself, namely downtown Terrville where you were once a successful CEO, Mayor and well respected person - until I did my wicked deed.

I can see this case going on for years with information flying between lawyers and courts in the U.S. and Oz, faster than data packets down a T3 line. Dont expect an outcome anytime soon

[rcgreen]

Imagine me sitting here in the USA, posting my opinion on Antionline,
whose server is located in the USA, and I say "The Chinese government
needs to become more democratic, and curb the abuse of human rights
in Tibet."

The President of China then insists that I be extradited to China
to be put on trial, because what I said is illegal in China

I don't think so.

[Phat_Penguin]

rcgreen .... poor choice of an example - chances are your message wouldn't be seen by the average chinese net user due to the strict government web-filtering - there is your defence to defamation .... I am not a lawyer but I reckon I can successfully defend your extradition order

[bluebeard96]

Whoah whoah whoah..... let's think about this.

You're saying an American can be held liable for infractions against Australian Laws?? I think this would set a dangerous precedent. I know that there could be good things that come from it, such as America being able to prosecute child porn sites/servers in other countries (something that we currently do not have the power to do), but I think the negative ramifications make this an unviable option.

I know this is a little different, but consider this: American women do not have a lot of the restrictions against them that some middle eastern countries do, such as making the women cover all of their skin and faces. Should American women be prosecuted based on the other countries ' laws??? I think not.

Any other thoughts on this?

Originally posted here by Phat_Penguin
rcgreen .... poor choice of an example - chances are your message wouldn't be seen by the average chinese net user due to the strict government web-filtering - there is your defence to defamation .... I am not a lawyer but I reckon I can successfully defend your extradition order

So guilt is dependent on visibility? Nobody SAW me do it, so it couldn't be wrong? Maybe that's not what you meant (if not, please clarify)... but that's what I get from it.

[rcgreen]

"I inform the proud Muslim people of the world that the author of the Satanic Verses book which is against Islam, the Prophet and the Koran, and all involved in its publication who were aware of its content, are sentenced to death."
Ayatollah Ruhollah Khomeini

http://www.rjgeib.com/thoughts/burni...amic-iran.html

[Phat_Penguin]

Yes, bluebeard - to defame someone you have to damage their reputation etc, to do that someone else has to believe your lies/untruths and act on them to the detriment of the plaintiff. It is not enough to just to tell lies - there has to detriment caused, that is how it applies here.

So in rcgreen's case that would apply exactly - due to the restrictive web-filtering no-one heard/saw the offending remark it would stand that defamation could not been done. Hope that clears that up. It was written with the tongue planted firmly in the cheek

The jury returns a not guilty finding, sleep ease my friend.

Seriously though, what I am saying is it looks like this case is going to boil down to where the damage was caused not where it was created.

An American can be charged under Australian law if the crime is committed in Australia - I believe this is going to be the crux of the legal arguement along with the alleged damages Gutnick is going to allege happened because of the article. Like I said its going to be interesting - stay tuned.

"Men never do evil so completely and cheerfully as when they do it from religious conviction." ---Pascal Pensees (1670)

[bluebeard96]

Yes, but was the crime committed in Australia? Websites don't push info to other countries... someone has to download the page, just as if something defamatory was printed in a newspaper here. If an Australian tourist buys the paper and brings it back to Australia, then is the person who printed it here now guilty of defamation in Australia? The paper was brought to Australia, just as the web data is brought to the user's browser.