Australia’s High Court Upholds Local (Private Law) Jurisdiction in Case of Defamation Over the Internet

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Thursday, May 1, 2003
Dr. Aukje A.H. van Hoek
On December 10, 2002, the High Court of Australia (HCA) handed down its judgement in the case of Dow & Jones & Company v Gutnick. The case concerned a defamation claim made by Mr. Gutnick, an Australian resident, against Dow Jones Company had published in 2000, both in a written version and through a subscription website on the Internet. Gutnick sued the Company in Victoria, his state of residence, for damage done to his reputation there. The issue that was brought before the HCA decided on the law applicable to the claim. Central to the judgement is the determination of the locus deliciti of the tort of defamation committed through the Internet. The place where the alleged tort is committed is relevant in two ways. The Victorian rules on service of process outside Australia provide for jurisdiction over foreign tort feasors if the tort is committed with Australia and/or the damage is suffered there. So, the locus delicti is important in establishing jurisdiction. Once jurisdiction is formally established, the court may still decline to hear the case, if it is a clearly inappropriate forum - the forum non convenien’s-exception. In this respect the world wide web is not that different from older forms of mass communication. At least not different enough to warrant a special conflicts of laws regime. So, regardless of the medium, a defamation claim is governed by the law of the place where the defamatory material was made available in comprehensible form-assuming that the person defamed has in that place where the defamation claim is governed by the person defamed has in that place a reputation which is thereby damaged. Material on the Internet only becomes available in comprehensible form when it is downloaded. I doubt whether Dow Jones and the various interveners in the case are very happy about the outcomes, which expose the content providers to liability in multiple jurisdictions.