At the economist over the no-Gutnick farce...
http://www.economist.com/agenda/displayStory.cfm?story_id=1489053
"...Victoria, which has some of the severest libel laws in any established
democracy..."
I should remember that...BUT IT WOULD BE WRONG!
"...The Victoria court ruled that, in fact, publication also took place in
Victoria when the articles appeared on subscribers’ computer screens, and
so the case could be tried locally. Dow Jones appealed. The Australian high
court has now confirmed the earlier ruling. Mr Gutnick will be able to
pursue his case in the lower state-court.
This is just the latest in a string of cases in which courts worldwide have
struggled to cope with the question of who has jurisdiction in the
borderless domain of cyberspace. These have involved not just defamation,
but criminal law as well. The most celebrated has been a case brought
against Yahoo!, an Internet portal, for the sale of Nazi memorabilia on one
of its auction websites, which a French court ruled breached French law
against the display of Nazi insignia. Although Yahoo promptly banned all
hate paraphernalia from its auction sites, it has continued to fight
enforcement of the French ruling in American courts. It has won its case in
an American federal court on the grounds of America’s first amendment
free-speech protections, but French civil-rights campaigners have appealed,
and the case is now being heard by a federal appeals court.
In a more ominous development, Andrew Meldrum, an American reporter, was
prosecuted this year by Robert Mugabe’s repressive government in Zimbabwe
for “publishing a falsehood” in an article published on the website of the
Guardian. Mr Meldrum (who also writes for The Economist) was ultimately
acquitted of the charge, but the Zimbabwe court had no hesitation about
claiming jurisdiction in the case, and Mr Meldrum faced the possibility of
two years in jail. It is the possibility of global liability, in both
criminal and defamation law, which now worries big media companies.
However, the outcome of the Australian case may not be as damaging as these
companies fear. For one thing, it was not much of a surprise. Settled law
in most countries has long allowed defamation suits to be brought against
publishers wherever their publication is circulated, irrespective of where
they based their operations or did their printing. For example, Britain,
where libel laws have long favoured the plaintiff, has always been a
favourite forum for such suits, even against foreign newspapers with
minimal circulations in Britain. Similar cases in the United States have
allowed plaintiffs to sue locally, though no American state libel laws are
as restrictive of press freedoms as British laws.
In the Australian case, the high court limited its ruling by saying that a
libel action could be brought only if the person had a reputation in the
place where the material was published, in this case Mr Gutnick’s home city
of Melbourne. If the ruling is followed as a precedent by other nations'
courts, as publishers fear, then this limitation alone could stop a frenzy
of jurisdiction-shopping by plaintiffs. Moreover, libel cases are expensive
to pursue. The threat of a wave of cases may be more theoretical than
realistic. Not many people have the deep pockets of Mr Gutnick, who made
his money in mining.
Nevertheless, one thing the Gutnick case does highlight is that national
laws in a wide array of areas, not just libel, now seem to be out of step
with the realities of the Internet. This tangle will take years to sort
out, and is likely to require unprecedented co-operation among national
governments, in criminal law enforcement as well as civil lawsuits.
In the case of libel itself, there seem to be two obvious paths, but both
are fraught with difficulties. Governments might agree international rules
for libel. But with different traditions on how much latitude a free press
should have, reaching agreement is bound to be difficult. Alternatively,
technology may yet come to the rescue. Software that allows websites to
identify the geographical location of a visitor is becoming ever more
refined. Eventually, it may allow publishers to block access to anyone in
certain countries where libel laws pose too much of a risk. The use of such
blocking software—which is also being deployed by repressive governments
such as China’s and Saudi Arabia’s—might well offer publishers a persuasive
legal defence in libel lawsuits, even if users found a way to obtain an
offending article.
Many publishers and Internet enthusiasts will view the spread of such
technology as a tragedy, fragmenting the Internet just as it promises to be
an engine for global free speech and creativity. But the technology might
also push governments into relaxing their restrictions on speech and
publication. Voters in Melbourne are unlikely to be happy to discover that
they cannot access mainstream websites because of the severity of their
local libel laws.