The High Court ruling on Joseph Gutnick and Dow Jones on the Net created plenty of controversy. Also; Carmen Lawrence, Bob Carr, John Howard and Peter Garrett. Do Australians have an unhealthy obsession with sport? And finally, ‘Bill the Beancounter’ lays down the economic challenge to ‘Big Wig’ Chris Caton.
The media companies argue that they should only be subject to one set of laws (the law of the jurisdiction in which their Internet server resides). The argument is that any other approach would subject the publisher to every jurisdiction on Earth (including some of the most repressive regimes on Earth).
While this argument carries a lot of weight, the converse argument is
also true. If a ‘single jurisdiction’ rule were adopted, media companies
would undoubtedly locate their web servers offshore in the countries
with the most relaxed defamation laws. One can almost imagine a
situation where some developing nations would deliberately water down
their defamation laws in order to attract the AOL Time Warners of this
Counsel for Dow Jones & Co tried to avoid this problem by saying that
publishers should be subject only to the law of the place where they
maintain their web servers, unless that place was “adventitious or
opportunistic”. However as the High Court correctly pointed out, these
words create more problems than they solve. How do you decide whether
the location of a server is opportunistic? Which court has jurisdiction
to decide this matter?
The introduction of an international protocol on internet free speech is
a grand idea but horribly utopian. The Australian States cannot agree on
a uniform set of defamation laws; what hope is there for agreement
between the entire world?
The High Court’s decision will be hard to administer, but is clearly
right. Joe Gutnick’s reputation was made in Victoria, and it was damaged
when people in Victoria logged onto the Dow Jones website and read the
Material defamatory when it is ‘comprehended’
I’ve read some real crap over the last couple of days over this decision. However, I believe the High Court has got it right.
I’m an advocate for free speech but the decision was consistent with previous Australian court rulings on what is known in publishing as the delivery/comprehension rule. Publishing on the Net was considered by the High Court as being the same as publishing via other media forms. Related to Defamation law, an article or photo published on the Net may impute defamatory meanings but only once the material is comprehended, not when or where it is delivered. Gutnick can now proceed to litigate in Victoria, where his reputation has allegedly been disparaged.
If the Dow Jones appeal was successful, Gutnick would have had to litigate in a New Jersey Court which is totally absurd given that he has no reputation to protect over there. A chill on freedom of speech will not be the outcome of this decision. While it is indeed now possible that a defamation action may be initiated anywhere material published on the net is comprehended, the likely scenario is that it will occur at the Plaintiff’s own jurisdiction where they have the greatest damages to establish. You can’t sue the world at large!
Freedom to fight back vital
Like most media responses, the article by Kevin Balshaw expresses outrage at the idea that a person defamed in the media should, like Gutnick, have the right to sue where he lives, has a reputation and has been defamed. Instead he apparently ought to be required to sue where the publisher publishes and would prefer to be sued, assuming he can find out where that is.
Dow Jones is incorporated in Delaware for tax reasons, writes articles in New York, uploads to its server in New Jersey and sells subscriptions around the world. Why should Joe have to concern himself with any of that?
Yes, the risk of being sued anywhere a report is read is a problem, but few people really have any reputation to protect in more than one country; it’s not that hard to figure out what the risks are.
Freedom of speech is vital. So is the freedom to fight back. If the media really believe what they’re saying, let them give an unconditional guarantee to agree that if they ever sue anyone for defamation it will be in the jurisdiction of the defendant’s choice.
Internet publishers need to behave
Kevin Balshaw has overreacted to the High Court decision. So Internet publishers have to behave as though their material will be read anywhere. So they should, it will be. While Australian law is in my
opinion too stringent and anti-freedom of speech, that
is no reason Australia should not have sovereignty
over material available here.
Hopefully, a consequence of this will be some media
pressure on governments to liberalise Australian
‘Hostile jurisdictions’ not permitted to view websites
Unfortunately, it is easy for the Dow Jones, or any other international
website, to prevent this sort of thing effecting them ever again and in
any other ‘hostile’ jurisdiction. They will include a clause in there
online legal policy that says you are not permitted to view the site in
such jurisdictions and doing so violates the policy of the web site, then
apply this condition in the jurisdiction the complainant is coming from.
The other thing is simply ban people viewing the site from such countries, as the Chinese do with most Western sites ‘hostile’ to Chinese
High Court decision idiotic
I’m not sure who’s at fault here. The law, or the High Court’s
reading of it. Whatever is to blame, the result is idiotic. I don’t
doubt for a second that the average high school student could
produce a more sensible outcome.
The politicians are required to act immediately and legislate this
decision out of existence. Retrospectively, while they’re at it.
Did the High Court even consider for one second the idea of a tinpot dictatorship following their lead and using his own tame judiciary to punish a supposedly free press on the other side of the planet?
Of course companies cannot predict how jurisdictions around the world
will view their publications. Therefore this is what will happen.
1. Overseas companies will seek to protect their assets from idiotic
jurisdictions by not having any in them. That means capital outflow from
the country. Why would I invest in a country when a press release from a
division in another country may see that investment being destroyed.
2. The USA will not stand still why fools overseas try to gag their media
at home. They will simply refuse to recognise any such laws, and may
even impose sanctions on countries that attempt to enforce them.
Here’s hoping they do.
Saddam and co. to sue George Bush for defamation
Pardon me, but isn’t the High Court telling Saddam Hussein that he can sue George Bush for defamation (over web-published accusations of harbouring weapons of mass destruction) in every country that has defamation laws (including Australia)?
Or telling Osama? Or Bashir?
What a curious decision.
Think and act for yourself and stop being ‘a victim’
We don’t live in a perfect world.
The poor persons in security departments have an extremely
difficult and thankless task in interpreting a wide range of
information and it gets up my skirt (and I’m a guy) when they get
the blame for a tragedy beyond any reasonable persons ability to
More of the ‘I’m a victim’ syndrome affecting much of the
Australians care far more for sport than anything else
The answer to the question posed about why the children overboard story was below the fold on page one as opposed to the NRL salary cap expose is obvious.
Australians care far more about sport then they do about politicians lying about refugees.
Crikey: And everything else. As I overheard one gentleman recently, “England may have its history, finance, literature, culture and arts but Australia’s got its sport!”
Hopeless English cricket team could learn a lot from seven year-old
After reading the feedback comments on Brett Lee, I would like to say how enlightening it was to sense the fiery nature of the Aussie’s.
My seven year-old son began playing soccer this year and proved to have a natural talent for the game, despite a weak team, he tried to pull the players together, and he got the name ‘Maradona’! Even at his level, he was targeted by opposing teams as the player to be brought down. He took many injuries but his will never faltered. He sometimes had to be pulled off the field but he got back, on tackling boys much bigger than himself. He has actually been through heart surgery, yet is not afraid of intimidation. He is perplexed by the lack of sportsmanship.
I wonder why the Australian Cricket team should be subjected to criticism for their strong tactics when their English counterparts were unashamedly happy to indulge in bodyline? My son has a deep sense of commitment to his team, and although he is small for his age, he is the gutsiest player on his team. This is to be applauded not berated.
Come on, the English cricket team are a joke! We try to be kind.
However professional we try to appear, we all know they are hopeless.
Crikey: Agreed. It makes you wonder why test players such as Vaughan, Butcher, Crawley, Tudor or even Harmison can’t get a one-day game when they play James Anderson who’s only played a handful of one-dayers for his own county.
He has much promise and future and deserves to be nurtured accordingly.
However, to highlight the professionalism (or lack of it) of the English, they threw him to the wolves, being Gilchrist and Ponting in full flight. If that wasn’t challenging enough, they ensured his international debut was suitably embarrassing and conspicuous by supplying him with a no-name and number guernsey!
How will Howard be viewed in 30 years?
Perhaps you might like to canvass your subscribers on the subject of how history may treat the government of John Howard?
With Gough Whitlam doing the rounds on the 30th anniversary of his election it is interesting now to view his successes (and failures) with the benefit of hindsight.
How will we view Johnny’s period of government in 30 years time?
What about Tampa, Children Overboard and security issues? Will history treat him kindly?
Sydney bushfire coverage shocking
The coverage of the Sydney fires was absolutely shocking at times. One
example (I wish I could remember which station it was on) should show you what I mean.
There was a fire at the Field of Mars. The story that came over the
television was that ‘fire is threatening houses in Marsfield, West Ryde
I also found 702 to be the best coverage and many journalists certainly do
a very good job in tough circumstances. However, this kind of false
embellishing is really unforgivable. This causes many people a great deal
of unnecessary anguish. I had to take the afternoon of work to look after
a friend’s house after she heard false reports that houses were being
threatened close to her place.
Up to date information is important and the rural fire service does a great job of providing it.
Bob Carr screwing the NSW bush
I’ve heard that rural Independents will run for the election next year. But don’t they realise that they’re actually helping the real enemy of the bush, namely the Carr Government?
Bob Carr only has a handful of marginal seats in rural NSW, and the Coalition has more seats to lose to Independents out there. I’d suggest that Carr isn’t concerned about screwing farmers with tight water restrictions and more national parks, because he has so few seats in the bush. Carr in fact has only a handful of marginal seats all up, maybe 12. And he’ll have to lose some 15 seats to the Opposition to lose office.
Carr won’t lose much from his rural policies; the Independents can only really screw up the Opposition. And I’ve seen how farmers really are suffering. I went to central NSW recently, and I saw dry fields and sick-looking animals and empty dams. It was shocking. And the Carr Government is only screwing them.
Carmen Lawrence’s conscience
While I accept that Carmen Lawrence’s timing was not the best, I take issue with your comments about mandatory sentencing and her government.
Lawrence’s government introduced mandatory sentencing (3 strikes and you’re in’) over 10 years ago. Yes, the legislation was seemingly prompted by hysterical media outbursts over juvenile justice; police chases of car joyriders were hotly and racistly debated here after some people were killed. However, the legislation was a ‘let’s see how it goes’ type response that had a sunset clause. Well, the sun set on it and it was not revived.
Until 1996. WA’s current juvenile ‘mandatory sentencing’ laws were
introduced by Richard Court’s Liberal government then and they are, of course still in force. Although I don’t think the Court’s ‘boot camps’ are still functioning! The current incumbent, Geoff Gallop, has bowed to pressure to keep the legislation after fighting it out with the Libs over who was tougher on crime at the last election. From time to time the issue raises its ugly head as some Children’s’ Court judge or another is resoundingly criticised by the local media and for helping some kid ‘evade’ what ‘should be coming to them’.
In addition, Dr Lawrence rang my husband and I over a year ago, in response to our complaints about the ALP’s lack of gumption about the Tampa affair, and said that ‘The Big Guy’ had overruled many people’s concerns (in the shadow cabinet) and just
followed Howard’s line.
She said she was upset that she could not make a difference
and that this kind of ‘democracy’ was occurring as the ALP flailed about searching for a ‘policy’ among the Libs’ castoffs. I think that she feels she can agitate more effectively from the backbench.
How? I don’t really know, but there you go.
Lawrence stands out amidst group of pathetic leaders
Please don’t knock this one too hard on the head. At least someone is standing out from an otherwise pathetic and apathetic, politically paralysed crowd of so-called democratic leaders on this issue. About time.
This may or may not fit with Carmen’s past behaviour but maybe a step in the right direction. Even if it is for political leverage, it is at least reassuring that someone may think there are enough frustrated and disgusted Australian voters who don’t agree with current government and lack of opposition policy on refugees.
Yours with cynicism tinged with relief (however shortlived).
Peter Garrett just a has-been ‘rock ‘n’ roller’
‘A Parliamentarian’ has been licking mailout envelopes too long if he/she thinks Peter Garrett would get up in the Senate from the ACT. While Reid’s seat is very vulnerable, especially if the ACT Libs are dumb enough to offer the criminally incompetent Kate Carnell, Canberrans are hardly going to go for a celebrity better known as a has-been rock’n’roller and CND candidate.
The sort of celebrity candidate that would get votes in the ACT is Rick Farley, whom the politically-knowledgeable voters of Canberra remembered from his NFF days in 1998, when he almost knocked Reid off. Garrett would be better off plying his wares in an inner Sydney or Melbourne Reps seat, or replacing Aden Bothways in NSW.
Chris Caton predicts the past but not the future
Up and flat (re interest rates).
And by the way,Bankers Trust hasn’t existed for more than 3 years.
My crystal ball may occasionally be clouded, but at least I have a clear view of the past.
David wants to take on Goliath in economic challenge
“Anywhere”? Right here in the open forum of economic discourse that is crikey.com.au.
“Anytime”? Prior to the next RBA board meeting on February 4, and each subsequent meeting thereafter. After all Chris, you’ve got to be in for the long haul.
Bill would like to put on record that he won’t be “talk(ing) regularly with experts around the world, including senior economists and officials from governments and central banks” as do Chris’s team (Source: BT website).
In fact, Bill doesn’t have anything resembling a team of researchers equipped with sophisticated analytical tools behind him. However, Linda the part-time PA occasionally watches “that poor lad, all on his own at the Commonwealth Bank” during the late news on the telly if she’s staying up past ten, and Bill is willing to peruse the Herald-Sun in the preceding days and even consider what Terry McCrann thinks.
Bill the Beancounter
Crikey: Sounds like an excellent idea. We could conduct an economic forecasting forum on Crikey and confirm the fact that the ‘big boys’ haven’t got a clue what they’re talking about. I wonder if Bill Evans is interested? Or Saul? Or Alan?