Media commentator and former Kennett Government spinner, Kevin Balshaw, examines the implications of the Gutnick decision.
… go instead where there is no path and leave a trail”.

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.

Peter Fray

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