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<nettime> (fwd) Deacons perspective on Gutnick defamation case
t byfield on Thu, 19 Dec 2002 22:57:33 +0100 (CET)

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<nettime> (fwd) Deacons perspective on Gutnick defamation case

from the following comment on the gutnick case:

     [T]he High Court's decision does provide impetus for ratification 
     of a multilateral treaty to provide a single regime for resolving 
     jurisdiction issues in cross border contexts. Indeed, to go further 
     and have a global code in areas of particular intractability, such 
     as potential defamation.

the assumption being that a unified regime will solve the 'problem' of
transjurisdictional defamation. it'd definitely minimize or eliminate
the jurisdictional issues; but the origin of the complaint, and hence
the issue at hand it seems, is defamation -- which such a regime  defi-
nitely *wouldn't* 'solve.' 

and so it goes.


----- Forwarded 

From: James Love <james.love {AT} cptech.org>
To: random-bits <random-bits {AT} lists.essential.org>,
	ecommerce <ecommerce {AT} lists.essential.org>
Subject: [Random-bits] Deacons perspective on Gutnick defamation case
Date: Wed, 18 Dec 2002 21:56:58 -0500

For those looking for a different perspective on the Gutnick defamation 
case, see below.  Also, we note that the Hague Convention on Jurisdiction 
delegates have been aware of this case for a while, and it played an 
important role in the decision by the United States to propose removing 
speech torts from the convention.  Jamie

-------- Original Message --------

Subject: FW: Media release
Date: Tue, 17 Dec 2002 08:18:32 +1100
From: Gamertsfelder, Leif(Sydney) <leif.gamertsfelder {AT} deacons.com.au>
To: James Love (E-mail) <love {AT} cptech.org>

Here is one perspective on the Gutnick defamation case



Date:	13 December 2002

Issued by:
Lois Jones

Title: Gutnick criticism misplaced

'The High Court's decision to allow Joseph Gutnick to commence defamation 
proceedings against Dow Jones in a Victorian court for material uploaded in 
the US was completely predictable', says Australian-based Leif Gamertsfelder 
a leading e-commerce law specialist with law firm Deacons.

Criticism of the High Court's decision is completely at odds with the manner 
in which defamation law has been applied in time immemorial and with common 

Defamation can only occur where defamatory material is heard or read, in 
this case at the human browser interface, and not at the point of upload.  A 
web server cannot comprehend an individual's reputation and it makes 
abundant sense to find that defamation occurs where a person that 
comprehends the concept of reputation actually hears or reads defamatory 

In the Gutnick decision the High Court did no more than affirm a 
well-established legal principle in a context which begged the court to hand 
down the decision it did.  Realistically the result of the appeal should 
never have been in doubt.

This is not to say that the appeal decision did not confirm the existence of 
problems that have long been identified. Widely distributed print 
publications have raised similar issues in cross border contexts for many 
years. The Gutnick decision applies established law to a set of facts that 
is easily aligned with precedent. It is not the High Court's role to solve 
these problems. However, the High Court's decision does provide impetus for 
ratification of a multilateral treaty to provide a single regime for 
resolving jurisdiction issues in cross border contexts.  Indeed, to go 
further and have a global code in areas of particular intractability, such 
as potential defamation.


To this end, many governments around the world have been negotiating the 
Draft Hague Convention on Jurisdiction and Foreign Judgments in Civil and 
Commercial Matters.  The intent of the Draft Convention is to provide 
certainty regarding the jurisdiction of courts to hear cases with an 
international dimension, including defamation cases.  It is the conclusion 
of this treaty that should provide a workable global solution to a global 
problem, but recognising that this still leaves the problem of structuring 
for favourable jurisdiction, and the substantial differences in laws of 
various countries on a variety of subject matter.

It is not the responsibility of the High Court of Australia to solve the 
unique global problems spawned by the use of the Internet.  Further, the 
implied 'solution' would be for the High Court to abstain from applying 
current law: the very thing societies governed by the rule of law must 
ensure courts actually do.  If it were otherwise, we may find ourselves in 
situation where courts frequently abstain from applying the law merely 
because the relevant act occurred over the Internet.  This clearly would be 
an undesirable outcome.

The Gutnick decision reflects a continuing trend where courts are more 
readily exercising jurisdiction in Internet cases generally, not just those 
limited to questions of jurisdiction.  These decisions demonstrate that 
courts will be reluctant to abdicate their responsibilities merely due to 
the fact that the Internet is implicated in a proceeding.  The clear message 
to come out of these decisions is that governments around the world need to 
increase their efforts to finalise the Draft Hague Convention to provide a 
unified approach and commercial certainty.  In the interim publishers should 
implement contractual and technological measures to manage risk in this 

For further information:
Lois Jones
National Communications Manager
Direct:	+61 (0)2 9930 8232
Mobile:	+61 (0)414 452 233
Email:	lois.jones {AT} deacons.com.au

Random-bits mailing list
Random-bits {AT} lists.essential.org

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