Internet Libel Fence Falls

Hmmmmmmm - in Oz we do have tougher libel laws - papers are more cautious, but do publish if they feel the story justifies it, and sometimes just for fun!

Gutnick (sp) is a very controversial figure here - and the kind of cussed fellow who would do this.

Here is comment from Oz r ethe decision - published in www.crikey.com.au - which you have to join if you wish to view - so I have taken the liberty of copying it to here - doubtless a moderator will take it away in a bit if it is deemed too long....

Crikey is a sort of somewhat conservative gadfly publication...

"Media commentator and former Kennett Government spinner, Kevin Balshaw, examines the implications of the Gutnick decision.

Yesterday's High Court decision paving the way for Joe Gutnick to take defamation action in the Australian legal system against Dow Jones as the publisher of Baron's Online is incredible to say the least and has the most far-reaching implications.

Not the least that it is one jurisdiction making a judgment that impinges upon another jurisdiction over a jurisdiction (the Internet) that in effect has no jurisdiction.

Sure, as Crikey itself has found, you slate someone in your home country and they'll take you to the wall for it, as they would with any other publication.

It is also established that the authorities can nail people who set up paedophile networks on the net or use it to operate financial scams, provided of course it is within their jurisdiction or set of international agreements.

But the Internet is a realm of the global ether that embodies freedom of expression. President Clinton affirmed as much, and there has been no contradiction as yet from the Bush administration.

The one major concern has been in relation to the potential access of children to pornography. A case in the US is pertinent in this respect, but even there Clinton affirmed the net as a medium of free expression that should be protected.

On June 26, 1997, President Clinton issued a statement on the US Supreme Court's ruling that portions of the Communications Decency Act (CDA) addressing indecency were not constitutional: "The administration remains firmly committed to the provisions - both in the CDA and elsewhere in the criminal code - that prohibit the transmission of obscenity over the Internet and via other media ... The Internet is an incredibly powerful medium for freedom of speech and freedom of expression that should be protected. It is the biggest change in human communications since the printing press, and is being used to educate our children, promote electronic commerce, provide valuable health care information, and allow citizens to keep in touch with their government. But there is material on the Internet that is clearly inappropriate for children."

And a WebNews report of October, 1997, including a most pertinent comment from the Wall Street Journal: "One group of content providers not buying into the rating system (a US proposal for the rating of offensive online material) is the news media. The Internet Content Coalition, which represents many online news providers, including MSNBC, CNN Interactive, The New York Times and Reuters News Media, to name a few, held a meeting in August and agreed that when it comes to the news they will not adopt a rating system. Topics of violence and sex are frequently covered in the news and, with a rating system in place, this could easily lead to limiting people's access to news items. 'I think the news media has a special place in keeping the public informed and disseminating information freely without any kinds of restriction,' says Neil Budde, editor of Wall Street Journal Interactive Edition. 'I think people see in this kind of scheme the beginnings of a mechanism to break down that total freedom the press has had.'"

The Australian High Court ruling is yet subject to the outcome of what will follow in the Victorian Supreme Court. However, it has ramifications that must be taken, and addressed, seriously around the world.

The success of such an action would mean any Internet publisher - individual, online news or commentary service, news organisation, business or religion, for that matter - would have to publish bearing in mind whether what it said would cause actionable offence in any other part of the world. Depending upon the international legal observance of particular countries, online comment, at the extreme, may as a result of this ruling have to comply with the requirements (as we might call them) of some of the most repressive regimes on earth.

What also of the implications for third parties? The item that has caused offence to Mr Gutnick in this case was published in America, yet viewable via the Internet in Australia. Is it the same as, say, Sky Channel broadcasting an item out of America via its Australian network? Or an Australian network taking a feed from one of its overseas associates?

The answer is no, provided the local outlet takes care to observe the local laws of defamation. The Internet is that ether-like, universal medium of publication and communication that has no such jurisdiction.

But back to the third parties. If an Internet publisher in another country can be held culpable, what responsibility falls to the other sites that are linked to it? What responsibility lies with the ISPs, through which Internet visitors in other countries view that publication? Do they become unwittingly actionable in these cases? It is difficult to envisage a disclaimer that could be so all encompassing.

The answer is fairly simple and straightforward - the introduction of a United Nations protocol on freedom of expression on the Internet, to which member countries become signatories with the same force as if they sign an international treaty, just as there are treaties relating to the environment, human rights, the rights of children, etc. That would preclude inter-jurisdictional action of the kind that is about to border on farce.

For the serious stuff, leave that to the new International Court.

Kevin Balshaw
Outer Limits Communications
"Do not follow where the path may lead
... go instead where there is no path and leave a trail".

CRIKEY: Send your comments on Kevin's view - or the judgement itself -
to [email protected]
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Not surprisingly, the New York Times has weighed in against the decision, saying it "could strike a devastating blow to free speech online". Here's a link to the editorial in today's Times:

http://www.nytimes.com/2002/12/11/opinion/11WED2.html

It could be an interesting case. If he prevails it could force on-line content providers to establish sites based on the users originating location and customize the content based on the laws in their country. Sounds like another step similar to the Yahoo lawsuit where they were sued in France for allowing pro-Nazi content to be read through their search engines and were forced to remove those links for any searches done from France. All of that would require a significant technical challange.

Websites with pro-Nazi content are forced to be romoved not only in France, but in Germany and other EU-countries as well, since there are rules (laws), which bind the 15 European Union (EU) members to outlaw racism and xenophobia on the Internet and offline.

This is also interesting because, traditionally, libel was seen as, for lack of a better definition, defamation performed through a permanent medium, whereas slander is defamation performed through a non-permanent medium.

This may sound like hair-splitting, but it isn't.

In old law (e. g. when I was in Law School :-D), slander, unless it was in the special categories called "slander per se", had a very high barrier in terms of proof. But libel (and slander per se, which was special instances like slandering a worker for acts or characteristics directly related to that person's business [e. g. a clumsy surgeon or a dishonest banker, but not a dishonest surgeon or clumsy banker], a woman's chastity, or saying falsely that a person had a "loathesome disease" [usually defined as TB or plague, but AIDS would very likely fit the bill]) was easier to prove as it followed the doctrine of strict liability. You didn't need to show intent, all you needed to show was - the statement was made, the statement is false, the defendant made the statement and the plaintiff was injured thereby.

The permanence of the medium eliminated the need for showing intent, as it was assumed by the courts that, if a statement were written down, it would have all the intent it needed.

So, is the Internet a permanent medium, or a temporary one? I'd argue that printed webpages are permanent, but not necessarily the fleeting pages one sees while surfing. But is editability a factor vis a vis permanence and, by extension, intent?

One thing that is certain to come from this and subsequent cases is a more clearly defined definition of what exactly the internet "is", and where it falls in relation to other forms of communication.

Is it spoken or is it written?

Is it possible to be neither and both at the same time?

Hhm, jespah, how good is your knowledge of Australian law?
(As far as I could check up my commentaries on [German] law, this could have been a sentence here as well.

"But this week's ruling, which obliges the US giant, Dow Jones, to defend itself in an Australian court, gives individuals the right to protect themselves against the impersonal - and sometimes irresponsible - power of the internet. Responsible Web publishers should welcome it; the rest should see the writing on the wall., " says the commentator of 'The Independent':

Leading article "The Independent"

My understanding of Australian law is confined to that the fact that I know that they have laws. And, if I were a betting woman (which I'm not), I'd bet their laws were based on British jurisprudence, like other former colonies/commonwealths (the US and Canada).

I wonder how it will take for The Independent to retract their comment about "Responsible Web publishers" when they start getting slapped with these suits? lol

Hmmmm - yes, our laws are based on English law - but will have been subject to rulings and hence precedents from our own courts for a hundred years...

egad!

don't tell me i can't now tell the truth about dlowan's dangling modifiers?!?

surely i can't be prevented from exposing what margo truely does with mangoes?!?!

not to mention not mentioning fishin's pole...?!?

what if i wrote an article in a VWcombi in Byron Bay(10 minutes idiologically east of Australia)and downloaded it in Melbourne - could i sue myself? or would that short circuit my dharma - creating a karmic masturbation of sorts - where i'd have to re-incarnate as myself to lodge an appeal...

is it friday yet?

Smooch!

could i sue someone for more sexual harrassment?

hehe

smooch

Mmmmmaybe we could arrange that!

so, do you need an afidavid or a summons?

(australian legal men wear wigs and dresses you know)

oh reeeeally?

and in the parliment they use whips

oh my!