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Internet Cold War Heats Up
The Kangaroo Battles

 7:13 pm on Dec 14, 2002 (gmt 0)

Jurisdiction is the most important issue webmasters have ever faced. The thought that you could publish something from the privacy of your home, and be liable for it in every kangaroo court on the planet is cause to re-evaluate your online presence. It calls the entire premise of the internet into question.

The latest in the on going war for jurisdiction heated up again last week with the Australian supreme court ruling that Dow Jones was liable in Australia for content accessible on the web from Australia.


The ruling from Australia's highest court on Tuesday, that content created in one country can be subject to the laws of another country...


jeremy goodrich

 8:18 pm on Dec 14, 2002 (gmt 0)

That ruling is very frightening for me. With my family in many countries around the world, do I now have to worry about censoring myself?

And what if those laws of other countries are unjust themselves? And in violation of United Nations recommendations / Amnesty International principals, universal human rights, etc? Does that mean we can still get in trouble, even though it would be a travesty?

I find the ruling apalling myself. And honestly, live in fear because of it.

Living here in the United States, I'm very grateful for the protectionist laws that we have governing the rights to say, more or less, what we want.

But for those of us (like me) with family the world over, and oppressive governments that would love to put people in jail for the tinyiest thing (with or without 'proof') this ruling is could become the landmark case that takes away rights to people with internationally connected families.

Though reading about that case, it seemed to me that the ruling was made that way because of the possibility of local defamation of an individual in one country by an entity in another, there is some logic there. The reaction of the United States government could very well set new precendents in reaction to this, and I hope that if they do make any other precendent setting moves in relation to this ruling here in the US, they rule on the side of creating more justice, and not injustice.

The possibilities for abuse with this ruling as precendent are staggering, imho.

For me, there are some things about my life I can't mention anywhere online because of potential reprecussions. And this was before this ruling.

Now, I find myself even more scared for my family, and even censoring my own message here, out of fear.


 8:43 pm on Dec 14, 2002 (gmt 0)

Very troubling indeed. Especially if you are a small internet content site (home based comes to mind!), how does one keep a tab on all international laws some of which may be too restrictive on free expression we all enjoy in the US


 10:14 pm on Dec 14, 2002 (gmt 0)

It is likely that we will see more and more of this type of thing. The larger the potential audience for an article or any other type of communication, the more likely it is to ruffle someone's feathers somewhere who is going to try to do something about it.

It's the law of unintended consequences.


 11:41 pm on Dec 14, 2002 (gmt 0)

There was a discussion about this already going. I will tack it onto the end of this one.


 9:02 am on Dec 12, 2002 (gmt 0)

(Please move this discussion if it is in the wrong forum.)

You can find news stories about this case easily enough but they all seemed somewhat opinionated.

The defamation case between the Australian diamond maganate and a major media organisation has raised some interesting issues especially the ruling that content viewed on a web site is actually 'published' in the country it is viewed in so the laws of that country apply.

This issue has already surfaced in USENET discussion forums years ago (I know from personal experience), but what affect do you think it will have on discussion web sites and other content based sites?



 1:19 am on Dec 13, 2002 (gmt 0)

Hopefully none. Surely a ruling such as this would be overturned on appeal. However it opens a gigantic can of worms.


 2:50 am on Dec 13, 2002 (gmt 0)

Possibilities if the appeal does not overturn the decision:
* Webmasters will start limiting and censoring content - better safe then sorry type behavoir - lots of forums don't hace the same level of moderation as webmasterworld
* Webmasters/Govts will look at limiting the reach of websites - not sure how this might happen...just a thought
* what about services? Online gambling is currently illegal in Australia, but there is nothing stopping me getting onto an international site - does the same concept apply here?

The Man in Black

 5:41 am on Dec 13, 2002 (gmt 0)

Content viewed on a browser can be "retrieved" from a server that resides within another nation, therefore that site was published in that country.

Let's say one published their entire hard book as web pages on a server in the U.S. and a person viewed this in Australia. According to that ruling, the book is an Australian published text. Does that mean that U.S. patent laws DO NOT apply, but Australian laws do, although they didn't hold the original patent issued by the author? It doesn't make any sense.

[edited by: engine at 2:15 pm (utc) on Dec. 13, 2002]
[edit reason] no sigs, please. [/edit]

jeremy goodrich

 12:53 am on Dec 15, 2002 (gmt 0)

The ruling is very problematic, in a number of ways...chilling indeed, if countries decide to follow suite, and cite this as 'precedent'.

I can only hope that the government that issued such a ruling thinks long and hard about the implications of this...

To turn the tables for a moment, since it's (at this point) Australia person / USA corporation - what if a USA person gets upset by an Australian corporation?

I'm sure the government there wouldn't appreciat it, the same as many people in the US don't appreciate this ruling currently...makes me wonder if they considered that perspective?


 4:14 am on Dec 15, 2002 (gmt 0)

This reminds me of Iran's fatwah against Salman Rushdie, or Israel's kidnapping of Adolf Eichmann on foreign soil. It may not be as extreme, but it's cut from the same cloth.


 9:52 am on Dec 15, 2002 (gmt 0)

Isn't this case based around defamation? If you are writing about an organisation or person then you should get your facts right first and then publish. This case questions which country the material is able to be viewed in, and as the businessman in question is Australian then an Australian court is involved. It's not because Australia has gone litigation crazy.

Defamation and slander is usually the grubby domain of tabloid newspapers of which every country has plenty. Web-based publications are just catching up. This case may present some interesting issues re internet law but the application of this to more 'general' web content is minimal.

My 2 cents worth...


 12:31 pm on Dec 15, 2002 (gmt 0)


Living here in the United States, I'm very grateful for the protectionist laws that we have governing the rights to say, more or less, what we want.



 12:58 pm on Dec 15, 2002 (gmt 0)

sorry for the first trial - just woke up here.

Living here in the United States, I'm very grateful for the protectionist laws that we have governing the rights to say, more or less, what we want.

I agree - freedom of speech in the U.S. is something of the very important principles you can count on. This australian rule is very scary for everyone who lives in a democratic free country.

What has been scaring me for a longer time is the litigation activity in the U.S. As you know poeple are now suing even the fast food companies for being to fat. in the past we had cases in which u.s. laws/ court decisions were applicable abroad. pretty scary!

it seems to me that unfortunately running a website in every country has been becoming a risk.


 8:40 pm on Dec 15, 2002 (gmt 0)

There is nothing at all wrong with that ruling in the High Court.

It simply makes posters on this forum and elsewhere more cognizant of the fact they cannot defame any person.

Its as simple as that.

If anyone has something factual or objective to say about anyone or any company has NO problems whatsoever.

Those of course who slander and defame as a some kind of sport will be subject to this type of litigation .
It in no way restricts free speech.

It restricts people defaming people.

And that is a good thing.


 9:40 pm on Dec 15, 2002 (gmt 0)

on free expression we all enjoy in the US

I'm not from the US, but I'm still waiting your government to publish a lot of confidential papers from the Bush "father" mandate it should have published some months ago, not to mention all the CIA papers talking about their implication on the Pinochet coup d'etat also not published because of security concerns related to 11-09

Free expression....

Of course, I'm not saying here is Spain the situation is better (p.e the LSSI law )

jeremy goodrich

 5:12 am on Dec 16, 2002 (gmt 0)

Governmental lies are one thing - this court case is a completely seperate issue...I highly doubt anybody in the world would say their government was 'perfect'.

But - those are all seperate issues. Right?

The issue here is one government - in one country - taking upon itself to bypass even the UN, which, as far as I recall, was still the international governing body that most countries (yes, even those with 'dictators') participate in. And most of those countries usually participate there to sort out just that - international issues, which this obviously is one.

Can you honestly say that you'd be happy in your home country, if summoned by the high court of another country, for any reason?

No, you wouldn't be. Especially if you'd never set foot there, and had no plans to.

Why? Because the laws are different. Here, I can say things about my president publically and be okay - elsewhere, if I so much as talk to somebody that has 'other than nice thoughts' I'll get put in jail, tortured, or worse.

All that, over an email. Happened recently, too - in one country that I know of.

So you are telling me that they were completely justified in what they did? I don't think so, and with the reverse of the situation, it would be my friends (as I consider them) those that I know, in Australia that would be crying foul.

I truly hope that this situation can be rectified in a fair manner, what ever the outcome.

cyril kearney

 5:28 am on Dec 16, 2002 (gmt 0)

This case is one of three similar cases.

The prosecutors in Zimbabwe brought criminal charges against a reporter for an article published in The Guardian in the UK because it appeared on the newspaper's website. The reporter has been acquitted but deported.

A libel action was just settled in favor of two Connecticut newspapers about mistreatment of Connecticut prisoners being held in Virginia. The prison warden in Virginia was suing because the newspapers' websites are available in Virginia.

Now this Australian case.

A great worry is that authoritarian regimes around the world will use this against news organizations and dissenters that are outside its borders. I shudder to think of the impact on freedom of speech and freedom of press if news organizations must defend themselves in Iraq, North Korea or dozen other countries for unfavorable reporting. This case may well end of in the World Court and on the floor of the United Nations.

Thierry Zoller

 7:37 am on Dec 16, 2002 (gmt 0)

LOL, look at the american arrogancy we face here.

America has decided for years that content avaiable to american citicens is subject to amercian laws, yet *nodody* of you cared.

We had companies from europe sued in America because they somehow broken American law. Now we have the same thing the other way around and now everybody says "OH, oooh, how can they". Laughable.

See the Adobe E-book case, see hundrets of other cases published in law related magazines.


 9:45 am on Dec 16, 2002 (gmt 0)

These cases pop up now and again to keep people on their toes but the ramifications are rarely as serious as the worst case scenarios people seem to be discussing.

Thierry_Zoller's point is an interesting one in that it is surprising to many when America is a litigious society, for Americans to be surprised by controversial lawsuits. McD hot coffee? :)

As a teacher internet censorship is a relevant topic to me and one which will have to be looked at more closely in the future. Whatever people say about freedom of expression it is not acceptable for rape and child pornography to be freely available on the internet at all.

To this end, although this particular ruling may be flawed, webmasters should wake up to the fact that individual governments are going to seek to control what material is freely available to their citizens in the future. This is not just an issue for China.



 10:30 am on Dec 16, 2002 (gmt 0)

I think the first thing anyone should do about this particular High Court case is actually read and understand what it is actually about.

Sure looks like some are going off on some jingoistic tangent and discussing issues this case has nothing with.

It has no bearing whatsoever on free speech or someones right to say whatever they want in any country in the world...let alone the US who seem to be most offended by this.

It is simply a case of defamation where a public person is suing Dow Jones for harm caused to their name.

It is litigation based around laws which exist in Australia.

The High Court simply made a ruling on the interpretation of the word "published"

Dow Jones and others including Yahoo co joined and appealed against a lower court finding on this term published and Dow Jones lost the appeal.

It now has to go to a court for the actual case to be heard and for a court to make a ruling on the balance of evidence as to the veracity of the claim at law.

It only has implications if someone writes an article which is defamatory in its nature and is written say in Sweden and is read (the court determined the minute it is downloaded into Australia it is then published)in Australia the person has a right to seek damages if a case can be proven,

Of course how would say Kerry Packer (Australias richest man) ever sue some one who posts on a site and has no assets whatsoever.

He could however sue the site where it is published hence the keen interest by many portals such as Yahoo etc.

Much like entertainers are always suing the National Enquirer in the US........one would think the journos have no real assets so they sue the "publisher".

Its absloutely NO different as to that example........say something which is patently false about someone and be prepared to face the consequences.


 11:14 am on Dec 16, 2002 (gmt 0)

You make a good argument Jillibert but I think many people would have issues with a foreign court deceiding if what has been said is "patently false" or not. Be as it may a democracy like Australia.

Traditional media published in another country has to take account of that countries libel laws and that is why the internet is such a grey area at the moment.

Imo this is inevitable anyway.



 12:24 pm on Dec 16, 2002 (gmt 0)

Should be noted (if it hasn't already). We aussies have very dated defamation laws. Dow Jones had no case to answer in the USA on this one because what they did is perfectly legal over there (edit: freedom of speech). However this business man has used this as his very reason for bringing it here.

At least this is the view of things that we are getting in Australia.

Personally, I think the decision is typical of a generation of people (& laws) who are having trouble getting a grip on the Internet and its ramifications.

I sincerly hope that it is not a precendent that is taken up elsewhere. What is to stop this man traveling to New Zealand sueing again under their law?


 1:16 pm on Dec 16, 2002 (gmt 0)

I have setup the independant state of 4eyesia.

The consititution of 4Eyesia prevents courts in other countries from passing any laws that limit the use of the internet within the bounderies of 4Eyesia. Our laws have a mandatory life sentence for anyone breaking this law.

Thank you for bringing to my attention the fact that the government of Australia has acted in this way.

Sadly 4Eyesia does not have an extradition treaty with Australia, but should any member of the Australian Government set foot in 4Eyesia they will be immediately arrested, given a fair trial, found guilty, and sentenced to life imprisonment.

It may seem harsh, but there is just too much of this thing going on, and I need to make a stand in order to discourage other governements from acting illegally.

(Lifetime President of 4Eyesia)


 1:42 pm on Dec 16, 2002 (gmt 0)

The implications of this ruling are far reaching and central to the issue of freedom of speach in one's own country.

Will Saddam Hussein have just cause to sue the US government or (in particular) President Bush for defamation of character? Bush has made many, hard hitting statements about and against Saddam which would undoubtedly be punishable in Iraq. Should Bush be tried in Iraq?

What about George senior in this interview with Paula Zahn [cnn.com].

Should all the news agencies (all over the world) who publish on the web be held responsible "in other countries" for their editorial content?

The consequences of this ruling are truly overwhelming! Will there one day be international law for the web? Wow! The mind reels at the immense, world-wide implications!

cyril kearney

 2:46 pm on Dec 16, 2002 (gmt 0)

Thierry Zoller
It never helps a discussion to cast the other side as arrogant. We DO have an issue of unsettled law.

The ideas of freedom of speech and freedom of press are not unique to the United States. Both the United States and Australia share a common source for thes ideas.

The United Nations Charter that both the US and Australia have signed also ensures freedom of speech and freedom of press.

Australia is signatory to the "CONVENTION ON JURISDICTION
This ruling is at odds with that International Agreement. Australia may withdraw from the International agreement or the United States may seek a ruling from the World Court.

The ruling in Australia is not that Joseph Gutnick has been defamed but that the court in Victoria has jurisdiction to hear the defmation case because the material is on the Internet and the Internet is accessable in Victoria.

The whole point may be moot if Australia does not find that Gutnick was defamed. I have no idea of the merits of his claim.

This expansion of jurisdiction has far-reaching implications beyond just the freedoms issues. May Australia or another country now require every business on the Internet to comply with their tax collection laws?


 5:49 pm on Dec 16, 2002 (gmt 0)

The thought that you could publish something from the privacy of your home, and be liable for it in every kangaroo court on the planet is cause to re-evaluate your online presence. It calls the entire premise of the internet into question.

But this has been the case since day 1- If you sold say, child pornography on the internet and you lived in a country where this was not illegal to sell, and then you traveled to the United States they could very well arrest you when you set foot on US soil-- providing they had already investigated properly/etc blah blah blah--

4eyes has it right-- any country is free to prosecute individuals who break their laws-- even if they came to the country though the internet-- but what are they going to do about it? I recognize some posters were saying they feared for their international family members, but typically this is not the case, and I do not feel that webmasters operating out of sovereign countries need to take as close a look at this as one would initially think.

I think this is an important news story for Australian webmasters and those who could be extradited to Australia, but those in England, US and other countries aren't going to be extradited to Australia for a defamation charge. Certainly not.

"This ruling doesn't mean Dow Jones will lose the case. and even if they lose it, it doesn't mean they will lose any assets as a result," Zittrain said.

Basically if you are a company intending on doing international business, then this case may not bode well for you because it may spur other countries to follow suit, but I think this has happened before (as has been pointed out by previous posters). If you aren't doing international business, then this really doesn't affect you.

(edit) spelling, supporting quote from article (/edit)

cyril kearney

 8:35 pm on Dec 16, 2002 (gmt 0)

"This ruling doesn't mean Dow Jones will lose the case. and even if they lose it, it doesn't mean they will lose any assets as a result," Zittrain said.

I think Zittrain is wrong about this. Dow Jones and every major publisher has assets in Australia. So if the case went against Dow Jones and the judgment was for monetary damages then the monies could be collected.

If the logic holds up any large multi-national corporation or entity could sue from any nation on earth where they had a presence. They could shop for the most favorable laws.
An action could be brought in more than one country.

Any multi-national news organization would potentially need to be able to defend itself in each of the 193 countries in the world.

I think Zittrain point is valid that US Courts might not support collection claims against assets in the US based upon this new jurisdictional expansion.

Remember The Guardian won its case in Zambabwe but lost its in-country reporter to deportation.


 9:12 pm on Dec 16, 2002 (gmt 0)

Quote from Internet Law Focus [wave.net]

The law is still unclear about which courts have jurisdiction on the Internet. Some helpful cases involve speech broadcast from one jurisdiction into another whereby the injured party could sue in his/her jurisdiction because the speech was read or heard there. Calder v. Jones, 465 U.S. 783 (1984).

In Canada, one court held that Ontario had jurisdiction to hear a lawsuit filed by a Canadian against an American who allegedly broadcast Libelous statements from the U.S. into Canada. Pindling v. National Broadcasting Corp., 49 O.R.2d 58 (1984).

Seems there are several precedents... including BBS and chat rooms.

Interesting read here [gigalaw.com]


 9:24 pm on Dec 16, 2002 (gmt 0)

Some people have been using the "free speech" argument, but the reason why this is not applicable to this particular case is that Australia does not have provisions in it's constitution to protect free speech (the legal system is based on the one in the USA though.)

Australia also has quite restrictive laws regarding content that can be hosted on a web server that is based in this country (which may or may not be applicable to this case.)


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