Description\n \n\n\n\n\n\n\n\n\n\n1. Action Items\n•\nPrepare a case study that requires critical thinking. The case study should include\nrelated questions and guiding answers.\n•\nIn week 9 we studied the Dow Jones v Gutnick case.\n▪\nWhat happened in this case?\n▪\nWhat is defamation?\n▪\nWhat legal issue did the court have to decide and what decision did it\nreach?\nSubmission Instructions\n•\nComplete and submit this assignment per your professors instructions.\nGrading Criteria\n•\n0 – 15 points\n11 Jurisdiction in cyberspace\nWhen a radically new situation is presented to the law it is sometimes\nnecessary to think outside the square…this involves a reflection upon the\nfeatures of the Internet that are said to require a new and distinctive legal\napproach.1\nCyberspace is an illusion. There is no such place. Many terrestrial norms do not\nand cannot apply to such a fictitious construct. Nevertheless cyberspace users\nperceive metaphorical chat rooms, folders, files, shops, libraries and so forth. They\nlive digital lives with digital personas in ‘places’ such as Second Life and\nFacebook.2 The reality is that each step of the digital experience is rooted\nterrestrially. Traditional legal principles are applicable to the majority of\nelectronic commerce disputes. Nevertheless, the operation of electronic commerce\nin cyberspace results in new circumstances to which legal jurists cannot readily\napply established legal rules.\nThe borderless nature of the internet often hides or disguises the origin of\nparticular websites and corresponding information. Questions sometimes arise as\nto the country or state whose courts have jurisdiction to adjudicate on a matter, and\nas to which law is to be applied. Courts also have to determine issues such as\nwhere conduct occurs – at the computer, the server, the place of business or\nresidence or somewhere else? – and thus which time zone applies. This area of law\nis referred to as conflict of laws or private international law,3 and its principles are\nwell established.\nRules of private international law\nIt is possible that an Australian court will determine that the law which applies to a\nparticular situation is that of another country. In this case the Australian court will\napply that other countrys law. Typically, the parties to an international contract\nwill specifically identify the law which applies to the contract. The parties may\nalso identify which countrys courts have jurisdiction to hear disputes arising under\nthe contract.\nContractually, parties may include an express choice of law clause under the\nprinciple of party autonomy. 4 However, there are exceptions. 5 Where there is no\nexpress choice of law the courts will attempt to find an implication of choice from\nthe language of the documents, the prior conduct of the parties, the place of\nperformance and other surrounding circumstances.6 Where there is no express\n259\nchoice and one cannot be implied, the contract will be governed by the law of the\njurisdiction ‘most closely connected’ to the contract. This may depend upon the\nsubject matter, nationality or domicile of the parties, the place of performance and\nother factors.7 Once the proper law is determined, the rules of that system of law\nare applied to the contract.\nForum non conveniens\nThe issue of choice of forum in which to hear an action is known as forum non\nconveniens. Each nation state determines its own laws and procedures. These laws\nare termed lex fori or the law of the forum. Each nations court system must\ndetermine, through its own civil procedure, when and how it should accept\njurisdiction. It will take into account numerous factors, such as residence and\nnationality of the parties, the place or places of business, and the subject matter\n(when the law suit begins). Often the issue is routine and uncontroversial, but\nwhere one or more of the parties reside outside the nation state or the subject matter\nof harm occurs elsewhere the question of jurisdiction must be settled.\nThe English approach to determining the forum, recognised by most common law\njurisdictions, is the test of ‘the clearly more appropriate forum’.8 The Australian\ncourts have developed a broader test, that of ‘the clearly inappropriate forum’. This\nhas resulted in the taking of jurisdiction more often.9\nThe High Court reaffirmed its position in Regie National des Usines Renault SA\nv Zhang:10 ‘[a]n Australian court cannot be a clearly inappropriate forum merely\nby virtue of the circumstance that the choice of law rules which apply in the forum\nrequire its courts to apply foreign law as the lex causae’. Although superficially the\nEnglish and Australian tests look similar, an analysis demonstrates that the\nAustralian test will result in the courts taking jurisdiction more often.\nDow Jones v Gutnick\nA number of foreign cases have raised novel problems associated with jurisdiction\nin cyberspace.\nThe application of the internet vis à vis jurisdiction and cyberspace was\nexplained in Dow Jones v Gutnick.11 Gleeson CJ, McHugh, Gummow and Hayne JJ\nexplained:\nThe World Wide Web is but one particular service available over the\nInternet. It enables a document to be stored in such a way on one\ncomputer connected to the Internet that a person using another computer\nconnected to the Internet can request and receive a copy of the\ndocument…the terms conventionally used to refer to the materials that are\ntransmitted in this way are a ‘document’ or a ‘web page’ and a collection\n260\nof web pages is usually referred to as a ‘web site’. A computer that\nmakes documents available runs software that is referred to as a ‘web\nserver’; a computer that requests and receives documents runs software\nthat is referred to as a ‘web browser’.\nThe originator of a document wishing to make it available on the World\nWide Web arranges for it to be placed in a storage area managed by a\nweb server. This process is conventionally referred to as ‘uploading’. A\nperson wishing to have access to that document must issue a request to\nthe relevant server nominating the location of the web page identified by\nits ‘uniform resource locator (URL)’. When the server delivers the\ndocument in response to the request the process is conventionally\nreferred to as ‘downloading’.12\nDow Jones v Gutnick13 is the most significant Australian authority on internet\njurisdiction to date. Dow Jones published the Barrons Magazine (Barrons), which\ncontained an article entitled ‘Unholy Gains’ and sub-headed ‘When stock\npromoters cross paths with religious charities, investors had better be on guard’.\nThe article alleged, among other things, that Victorian businessman Joseph Gutnick\nwas ‘masquerading as a reputable citizen when he was a tax evader who had\nlaundered large amounts of money’.14 The magazine sold 305,563 hard copies (14\nof those in Victoria) and was available on the website wsj.com to some 550,000\nsubscribers (some 300 of whom were in Victoria). Dow Jones operated in New\nYork and its internet servers were located in New Jersey.\nDow Jones v Gutnick did not involve personal jurisdiction, as the defendant was\nnot within jurisdiction. Personal jurisdiction is typically satisfied where the\ndefendant is physically present in the jurisdiction or has significant contacts with\nthe jurisdiction, such as a branch office or registered interest. The nature of internet\ninteraction will lead to many instances where personal jurisdiction will not arise.\nThe case attracted significant international attention. Media outlets were\nconcerned about the implications for them if nations like Australia accepted\njurisdiction for publications which were ostensibly intended for the domestic US\nmarket, but which were sold in part or peripherally internationally. The High Court\nof Australia permits pleadings in appeals by interveners in matters of general\npublic importance if the issue relates to maintaining some particular right, power or\nimmunity which affects the interveners.15 An intervener has the same rights and\nobligations as the other parties to the action, including the ability to appeal, tender\nevidence and participate fully in all aspects of the argument. The interveners\nincluded Amazon.com Inc.; Associated Press; Cable News Network LP LLLP\n(CNN); Guardian Newspapers Ltd; The New York Times Company; News\nLimited; Time, Inc.; Tribune Company; The Washington Post Company; Yahoo!\nInc.; and John Fairfax Holdings Ltd.\n261\nThe matter came before Hedigan J at first instance. His Honour particularly\nexamined jurisdiction in relation to the internet connection, as this could affect the\naward of damages.\nGeoffrey Robertson QC for Dow Jones made several unsuccessful submissions.\nRobertson submitted that imposing liability where downloading occurred ‘would\nhave a serious “chilling effect” on free speech’. He argued that ‘a narrow rule was\nappropriate for the age of globalisation’ and that ‘the Internet offer[ed] Australians\nthe greatest hope of overcoming the tyranny of distance’. He submitted that Hedigan\nJ had ‘a national duty to decide that there was no jurisdiction in Australia even if\n[the judge] had a legal view to the contrary, and that it [wa]s [his Honours] duty\npublicly to declare that Mr Gutnicks action against Dow Jones take place in New\nJersey’. Robertson suggested that downloading is ‘self-publishing’ and that ‘the\nprocess is akin to taking a book out of a library in New Jersey and taking it home to\nVictoria to read’. He ‘flirted with the idea’ that cyberspace should be a\ndefamation-free zone,16 and argued that the article was published ‘in America for\nAmericans’ and that the events constituted ‘a tort having an indelibly American\ncomplexion’.17 The plaintiff submitted that publishing occurs when data is made\n‘intelligible or manifest to a third party’ and argued that that has been the law for\n400 years in other contexts.\nHedigan J rejected counsels ‘bold assertions’, commenting that the unique nature\nof the internet must not lead to the abandonment of the analysis that the law has\ntraditionally and reasonably followed to reach just conclusions. His Honour\nexpressed concern that Robertsons arguments, ‘attractively presented as they were,\nbecame enmeshed in pop science language’ and degenerated into ‘“sloganeering”\nwhich in the end decides nothing’.18\nHedigan J referred to the following authorities to formulate his view. First, his\nHonour politely questioned the value of the decision in Macquarie Bank v Berg 19\nwithout making any attempt to directly address issues raised. He then referred to\nDigital Equipment Corporation v Alta Vista Technology Inc. ,20 where to\ndetermine jurisdiction the court examined the question of whether the owner and\ncontroller of a website can with some degree of certainty ‘know’ if the content of\nthe site reaches the user. The court felt that:\nUsing the Internet…is as much knowingly ‘sending’…as is a telex, mail\nor telephonic transmission;…ATI ‘knows’ that its Website reaches\nresidents…who choose to access it, just as surely as it ‘knows’ any\nlateral telephone call is likely to reach its destination.\nLee Teck Chee v Merrill Lynch International Bank 21 involved the republication of\na Singapore newspaper on the internet. Nathan J, of the High Court of Malaysia,\nheld that publication had not taken place in Malaya because the alleged defamatory\nwords had been published on a Singapore server. However, the judgment is of\nlimited value as there was no evidence presented that any person in Malaya had\n262\naccessed the website.\nI n Kitakufe v Oloya Ltd22 the Canadian court assumed jurisdiction for a\ndefamatory statement made in a Ugandan newspaper republished on the internet.\nThe plaintiff was a medical practitioner born in Uganda, but practising in Canada.\nThe defendant argued that Uganda was a more convenient and natural forum, and\nthat the proceedings had numerous real and significant links to Uganda. These\nincluded that the plaintiff had assets in Uganda, and that the defendants concerns\nregarding malice, ethnic rivalry and the defences credibility meant that the case\nwould be better dealt with in Uganda. The defence also expressed concern about\nthe significant expense and inconvenience of calling witnesses based in Uganda to a\ncase run in Canada. Despite this multitude of connections with Uganda, Hume J\nassumed jurisdiction on the basis of access to the website and downloading,\nconcluding that it was ‘not satisfied that the plaintiff would not be deprived of a\nlegitimate personal and juridical advantage’ if the case were run in Uganda.\nHedigan J described this case as one where ‘a superior court assumed jurisdiction\nover a defamation suit on the basis of access to the Website and its reception (that\nis, downloading) in Ontario, Canada’.\nI n Godfrey v Demon Internet Ltd,23 Moreland J determined that an internet\nbulletin board amounted to publishing postings to subscribers. Godfrey was a\nscience lecturer in England and the defendant hosted a news group whereby users\ncould make postings contributing to targeted discussions. One posting claimed to be\nGodfrey, but in fact was written by an imposter. The posting was defamatory.\nGodfrey requested its removal within ten days. The defendant did not and it\nremained online until it expired in the usual course (two weeks later). Moreland J\nheld that the defendant had published the posting whenever a subscriber accessed\nthe news group:\nIn my judgment the defendant, whenever it transmits and whenever there\nis transmitted from the storage of its news server a defamatory posting,\npublish[es] that posting to any subscriber to its ISP who accesses the\nnewsgroup containing that posting. Thus every time one of the defendants\ncustomers accesses ‘soc.culture.thai’ and sees that posting defamatory of\nthe plaintiff there is a publication to that customer.\nHedigan J took particular note of the expression ‘sees that posting defamatory of the\nplaintiff’: he regarded this as the equivalent of downloading.\nHedigan J cited Calder v Jones24 with approval, referring to the statement of the\nUS Supreme Court that ‘jurisdiction may be exercised over a foreign defendant\nwho directs his or her defamatory message at the forum and the plaintiff suffers\nharm there’.25\nFrom these cases Hedigan J concluded that the place of defamation is ‘the\njurisdiction where the defamatory material was published and received by the\nplaintiff, rather than where it was spoken or written’, and so the Dow Jones article\n263\nwas published in the state of Victoria when downloaded by Dow Jones subscribers\nwho had met Dow Joness payment conditions and used their passwords. The\ndefendants argument that it would be unfair for the publisher to have to litigate in\nthe multitude of jurisdictions in which its statements are downloaded and read, he\nsaid, ‘must be balanced against the world-wide inconvenience caused to litigants,\nfrom Outer Mongolia to the Outer Barcoo’. His Honour stated that ‘if you do\npublish a libel justiciable in another country with its own laws…then you may be\nliable to pay damages for indulging that freedom’.26\nHedigan J considered the following additional factors as significant:\n• the publication was downloaded in Victoria;\n• the plaintiffs residence, business headquarters, family, social and business\nlife are in Victoria;\n• the plaintiff seeks to have his Victorian reputation vindicated by the courts of\nthe state in which he lives;\n• the plaintiff undertook not to sue in any other place.\nHis Honour concluded that given these factors ‘it would be verging on the\nextraordinary to suggest that Mr Gutnicks action in respect of that part of the\npublication on which he sues should be removed for determination to the State of\nNew Jersey’.27 Dow Jones maintained that the article was ‘indelibly American,\nwritten by Americans for Americans interested in the stock market and its affairs’.\nThe weakness in this argument, writes Hedigan J, is that ‘the aspect sued on by Mr\nGutnick is indelibly Victorian, connected with no other place, and that any\ndocumentation or evidence concerning the matter will all be found in Victoria’.28\nLess than one month after the judgment by Hedigan J, the Victorian Court of\nAppeal quickly and with little consideration and analysis dismissed the appeal by\nDow Jones.29 The issue then came before the High Court of Australia.\nOn 10 December 2002 the High Court of Australia handed down its decision in\nDow Jones v Gutnick. By 7–0, but in four separate judgments, the High Court\ndismissed the appeal of Dow Jones. The court determined that publication of a\ndefamatory statement for an online subscription website occurs at the place of\ndownloading. Kirby J flagged the danger in finding otherwise, stating:\nTo tell a person uploading potentially defamatory material onto a\nwebsite…[that that act] will render that person potentially liable to\nproceedings in courts of every legal jurisdiction where the subject enjoys\na reputation, may have undesirable consequences. Depending on the\npublisher and the place of its assets, it might freeze publication or censor\nit or try to restrict access to it in certain countries so as to comply with\nthe most restrictive defamation laws that could apply.30\nKirby J dealt with the legal response to the impact of the internet. His Honour\ndescribed the internet as ‘essentially a decentralised, self-maintained\n264\ntelecommunications network’ which ‘demands a radical reconceptualisation of the\napplicable common law’.31 His Honour drew an analogy between the development\nof such new legal rules and the Law Merchant (lex mercatoria), which arose out of\nthe general custom of the merchants of many nations in Europe.\nAdventitious and opportunistic\nDow Jones submitted that the applicable law should be that of the place where the\nweb servers were maintained, ‘unless that place was merely adventitious or\nopportunistic’. Dow Jones recognised the argument that publishers could place\ntheir servers in jurisdictions most advantageous to them, but argued that it did not\n‘misuse’ this rule, as the location of its servers was not determined for legal or\nadvantageous considerations. Gleeson CJ, McHugh, Gummow and Hayne JJ stated\nthat ‘adventitious’ and ‘opportunistic’ are words likely to produce considerable\ndebate, and noted that a publisher may choose the servers location based on a\nrange of factors, including costs of operation, benefits offered for setting up\nbusiness, security, and continuity of service. They also noted that the publisher may\nhave servers in more than one state or country.\nThe corollary argument was made that plaintiffs like Gutnick could choose the\nmost favourable jurisdiction to them in which to commence proceedings, bypassing\nnations with free speech and freedom of expression. Gutnicks response was that\nwhilst that may be so, on this occasion he sued in the jurisdiction of his business,\ndomicile and residence, and sought no adventitious of opportunistic advantage.\nThe courts attitude towards either the plaintiff or the defendant choosing the most\nadvantageous jurisdiction or the publisher placing its server in a jurisdiction with\nno defamation law remains untested.\nGleeson CJ, McHugh, Gummow and Hayne JJ suggested that ‘reasonableness of\nthe publishers conduct’ might be considered ‘necessary or appropriate’ as a\ncommon law defence where all the publishers conduct occurred outside the\njurisdiction. Their Honours identified relevant circumstances as ‘including where\nthat conduct took place, and what rules about defamation applied in that place or\nthose places’. Their Honours drew an analogy with the developing defence of\ninnocent dissemination.32\nKirby J described the dismissal of the appeal as ‘contrary to intuition’, which\n‘does not represent a wholly satisfactory outcome.’ His Honour seemed to feel that\na balance is yet to be determined between the human right of access to information\nand to free expression, and the human right to protection by law for the reputation\nand honour of individuals, and that this warrants ‘national legislative attention\nand…international discussion in a forum as global as the Internet itself’.33\nThe court determined that the place where damage was inflicted was a most\nsignificant factor. The place where the defamation was comprehended and the\nplaintiffs connection with the locality were important factors.34\n265\nAccording to Gleeson CJ, McHugh, Gummow and Hayne JJ, the ‘spectre which\nDow Jones [seeks] to conjure up’ – that a publisher would be forced to consider,\nfor every article it publishes on the internet, ‘the defamation laws of every country\nfrom Afghanistan to Zimbabwe’ – is ‘unreal when it is recalled that in all except\nthe most unusual of cases, identifying the person about whom material is to be\npublished will readily identify the defamation law to which that person may\nresort’.35\nEffects test\nOne solution may be the adoption of an effects test. Calder v Jones36 concerned\nShirley Jones, an Academy award-winning actress who lived and worked in\nCalifornia. Jones was defamed by an article in the National Enquirer which was\npublished in Florida but had a nationwide circulation, including a substantial\nreadership in California. The defendants challenged the jurisdiction of the\nCalifornian courts. The US Supreme Court held that California was the ‘focal point\nboth of the story and of the harm suffered’. This joint ‘target’ and ‘harm’ criteria is\noften referred to as the ‘effects test’:\nThe allegedly libelous story concerned the California activities of a\nCalifornia resident. It impugned the professionalism of an entertainer\nwhose television career was centered in California. The article was\ndrawn from California sources, and the brunt of the harm, in terms both of\nrespondents emotional distress and the injury to her professional\nreputation, was suffered in California. In sum, California is the focal\npoint both of the story and of the harm suffered. Jurisdiction over\npetitioners is therefore proper in California based on the ‘effects’ of their\nFlorida conduct in California…The mere fact that [the defendant] can\n‘foresee’ that the article will be circulated and have an effect in\nCalifornia is not sufficient for an assertion of jurisdiction…[The\ndefendants] are not charged with mere untargeted negligence. Rather,\ntheir intentional, and allegedly tortious, actions were expressly aimed at\nCalifornia. Under the circumstances, petitioners must ‘reasonably\nanticipate being hauled into court there’ to answer for the truth of the\nstatements made in their article.37\nThis case did not involve the internet or cyberspace, but its approach has been used\nand quoted in cyberspace jurisdiction cases.38 The concept that a person ought to be\nliable for a deliberate act which targets another jurisdiction and causes harm there\nclearly can be useful for cyberspace quandaries.\nThe effects test can be compared to the terminatory theory of criminal law\nespoused by Professor Glanville Williams 39 and approved by Stephen J in Ward v\n266\nR.40 It is the place where the physical act took effect on its victim, not where the\nphysical act of perpetrator was done, that determines the locus of the crime and, in\nturn, which courts have jurisdiction in respect of that act.\nIn Dow Jones v Gutnick, Gleeson CJ, McHugh, Gummow and Hayne JJ endorsed\nthe effects test approach:\nActivities that have effects beyond the jurisdiction in which they are done\nmay properly be the concern of the legal systems in each place. In\nconsidering where the tort of defamation occurs it is important to\nrecognise the purposes served by the law regarding the conduct as\ntortious: purposes that are not confined to regulating publishers.41\nAustralian cases\nThe first Australian case with an element of internet jurisdiction is Macquarie\nBank v Berg.42 Berg was a disgruntled ex-employee of Macquarie Bank who\nplaced defamatory material regarding the bank and its senior employees on a\nwebsite. Berg had moved to California and the material in question was located on\na server there, but could be accessed and viewed in New South Wales. Macquarie\nBank sought an ex parte interlocutory injunction to restrain publication of the\nmaterial on the internet. Simpson J, bearing in mind the fact that publication on the\ninternet is continuous, 24 hours a day, for as long as the material remains online,\ndescribed the difficulties of such a request in the following terms:\n…once published on the Internet, material is transmitted anywhere in the\nworld that has an Internet connection…to make the order as initially\nsought, would have the effect of restraining publication of all the material\npresently contained on the website to any place in the world. Recognising\nthe difficulties associated with orders of such breadth, [counsel] sought\nto narrow the claim by limiting the order sought to publication or\ndissemination ‘within NSW’. The limitation, however, is ineffective.43\nSimpson J did not accept jurisdiction and refused to grant the injunction. However,\nher Honour spuriously reasoned:\nThe difficulties are obvious. An injunction to restrain defamation in NSW\nis designed to ensure compliance with the laws of NSW, and to protect\nthe rights of plaintiffs, as those rights are defined by the law of NSW.\nSuch an injunction is not designed to superimpose the law of NSW\nrelating to defamation on every other state, territory and country of the\nworld. Yet that would be the effect of an order restraining publication on\nthe Internet. It is not to be assumed that the law of defamation in other\n267\ncountries is coextensive with that of NSW, and indeed, one knows that it\nis not. It may very well be that, according to the law of the Bahamas,\nTazhakistan, or Mongolia, the defendant has an unfettered right to publish\nthe material. To make an order interfering with such a right would exceed\nthe proper limits of the use of the injunctive power of this court.44\nThis reasoning repeats the erroneous approach of Inset System Inc. v Instruction\nSet Inc. (see below).45 The mere fact that a website reaches another jurisdiction is\nnot a sufficient ground to grant or assume that jurisdiction. However, Berg clearly\nhad several connections with New South Wales, and the website was dedicated\nentirely to Macquarie Bank and its senior employees. In terms of an effects test, the\ntarget and the harm were entirely in New South Wales, so Berg ought to have\nexpected to be brought before the courts there.\nThe factors against the grant of jurisdiction included the enforceability of such an\norder, the undesirability of superimposing the defamation law of New South Wales\nonto every other state, territory and country of the world, and the interlocutory\nnature of the application.46\nI n Airways Corporation of NZ Ltd v PriceWaterhouse Coopers Legal 47\nSimpson J had the opportunity to reconsider her decision in Macquarie Bank. The\nproceedings arose out of the publication, by email, of certain material capable of\ndefaming the plaintiffs. The only evidence as to receipt of the material was from\ntwo witnesses, each of whom received it in New Zealand. Counsel argued that the\nevidence disclosed no connection with New South Wales, and that the appropriate\nforum for the commencement of any defamation proceedings should be New\nZealand. Counsel cited the decision of Hedigan J in Gutnick v Dow and the Court\nof Appeal. Simpson J stated:\nIn these decisions it was held that internet publications take place in the\nlocation where they are read, and not in the location from which they\nare transmitted…For present purposes, I am prepared to accept the\nconclusions of the Supreme Court of Victoria and the Court of Appeal of\nVictoria but bear in mind that these conclusions were reached on the\nbasis of evidence placed before Hedigan J. That evidence was not\nnecessarily identical to the evidence on this issue placed before me.\nNevertheless, for present purposes I work on the basis that publication by\nemail takes place where the email is received and that, on the evidence in\nthis case, that was in New Zealand.48\nThus Simpson J reversed her previous position, though making use of qualifying\nlanguage.\nThe NSW Supreme Court had the opportunity to revisit the Macquarie Bank\nLimited v Berg case in mid-2002.49 Smart AJ dealt with procedural issues, but in\nlight of the Dow Jones decisions in the Victorian Supreme Court, 50 Macquarie\n268\nBanks counsel reserved the right to argue whether the placement on the internet in\nthe United States of defamatory material accessible in New South Wales amounted\nto publication of the material in New South Wales. Berg submitted that the case\nwas ‘overwhelmed by the application of Californian law and that the indications\nwere that the plaintiffs could not win in California because of the law as to free\nspeech’. Smart AJ concluded that until ‘the facts are found definitively it is too\nearly to say which law applies’.51\nSmart AJ distinguished the Dow Jones case, noting, without deciding the issue,\nthat ‘Gutnick was not concerned with the World Wide Web because Dow Jones\nonly put its material on for subscribers or trial subscribers.’52\nIn ACCC v Purple Harmony Plates Pty Limited53 the Federal Court of Australia\nconsidered the difference between websites registered internationally with .com\nand Australian-administered and registered sites with .au. The defendants were in\nbreach of the Trade Practices Act by advertising on the website in a manner which\nwas misleading and deceptive. The defendants challenged the jurisdiction of the\ncourt on several spurious grounds. In relation to the website, the defendant argued\nthat it used a .com and not a .au registration and as such the site should be governed\nby the laws of Virginia, where the .com sites were administered. Goldberg J\nrejected this approach: the registrant was Australian, and it was irrelevant that the\nagreement with the domain name administrator may not be subject to the\njurisdiction of Australian courts.\nEarly US experience\nThe early cases emanated from the United States, where disputes arose between\nparties in different states. Although these US cases involved constitutional factors,\nmore than one common law jurisdiction has been guided by them.54\nIn the United States, to determine personal jurisdiction, it is sufficient if the\ndefendant ‘purposefully availed’ itself of the jurisdiction (such as by repeatedly\nconducting business there). US courts are required to use due process (under the\n14th Amendment to the US Constitution). In International Shoe Co. v\nWashington,55 the US Supreme Court held that due process requires the defendant\nto have ‘minimum contacts’ with the plaintiffs jurisdiction and prescribes that the\nchoice of jurisdiction be consistent with ‘traditional notions of fair play and\nsubstantial justice’.56\nThe ‘purposeful availment’ requirement ensures that random and fortuitous\ncontacts do not cause a defendant to be improperly brought into a forum. The ‘fair\nplay’ requirement permits the court to examine whether the defendants acts or their\nconsequences have sufficient connection with the state to make jurisdiction\nreasonable.\nEarly cyberspace cases mistakenly granted jurisdiction merely on the basis that\n269\nthe defendants website could be accessed in the plaintiffs jurisdiction. In Inset\nSystem Inc. v Instruction Set Inc.,57 the court, on hearing evidence that as many as\n10,000 residents of the state could access the website, granted jurisdiction over a\ndefendant who maintained a mere passive website. This number of potential users\nis now ridiculously conservative.\nIn Minnesota v Granite Gate Resorts Inc.,58 the Minnesota court examined five\nfactors: the quantity of contacts; the quality of contacts; the connection between the\ncause of action and the contacts; the states interest; and the convenience of the\nparties.\nThe courts later distinguish between passive and active websites. Passive sites\nmerely display information. Active websites may provide for form filling, and for\ncontracting online, or may simply provide an email link. On this basis, in Zippo\nManufacturing Co. v Zippo Dot Com Inc.59 the court formulated a sliding scale\napproach which has since been generally adopted.\nAt one end of the scale:\nare situations where a defendant has simply posted information on an\nInternet Web site which is accessible to users in foreign jurisdictions. A\npassive Web site that does little more than make information available to\nthose who are interested in it is not grounds for the exercise of personal\njurisdiction.60\nFor example, in Bensusan Restaurant Corp. v King61 the plaintiff was the owner of\nthe well-known Blue Note jazz night club in New York. The defendants advertised\ntheir night club, which had the same name, in Missouri; it catered mainly for local\nuniversity students. Notwithstanding evidence that New York residents both\naccessed and indeed made bookings based on the information from the Missouri\nwebsite, the Appeals Court held that passive websites do not meet the standard of\n‘purposeful availment’. There was no element of ‘targeting’ (see Effects test,\nabove) and accordingly no substantial connection was created.62\nIn Webber v Jolly Hotels 63 the New Jersey-based plaintiff booked a holiday in\nItaly online. The defendant ran several hotels in Italy and had no connection with\nthe United States. The website provided photographs of hotel rooms, descriptions\nof hotel facilities, information about numbers of rooms and telephone numbers. The\nplaintiff was injured whilst on holiday in the defendants hotel. She commenced\nproceedings in New Jersey. The court held that it lacked jurisdiction over the\ndefendant. Access to the website alone was held to be insufficient. The court\nrequired continuous and substantial contacts with the forum to establish the\ndefendants personal jurisdiction: ‘exercising jurisdiction over a defendant who\nmerely advertises its services or product on the Internet would violate the Due\nProcess Clause of the Fourteenth Amendment [and] would disrespect the principles\nestablished by International Shoe’. The defendants website provided no more than\n270\npassive advertising information.64\nAt the other end of the scale:\nare situations where a defendant clearly does business over the Internet.\nIf the defendant enters into contracts with residents of a foreign\njurisdiction that involve the knowing and repeated transmission of\ncomputer files over the Internet, personal jurisdiction is proper.65\nThe Appeals Court in Zippos case cited Compuserve Inc. v Patterson66 as an\nexample: there the defendant had purposefully directed his business activities\ntowards residents of another state and the repeated transmissions showed a\nsubstantial connection with that state. Acts such as selling goods or services would\nin all likelihood be sufficient to constitute ‘business’ on the internet.\nIn Playboy Enterprises Inc. v Chuckleberry Publishing Inc.67 the court held that\nthe Italy-based defendant actively solicited US customers to its internet site, and in\ndoing so had distributed its product within the United States in breach of a contempt\norder. One of defendants websites was not just a source of passive information, but\nwas a ‘pay’ site. The defendant knew that US citizens accessed its site and ought to\nhave expected to be held accountable for its breach of the contempt order. Taking\njurisdiction was thus appropriate.\nThe middle ground is occupied by interactive Web sites where a user can\nexchange information with the host computer. In these cases, the exercise\nof jurisdiction is determined by examining the level of interactivity and\ncommercial nature of the exchange of information that occurs on the Web\nsite.68\nThese initial cases are difficult to reconcile as they are complicated by non-internet\nfactors and by the varying degrees of judicial understanding of the technology\ninvolved.69 First, the defendant must have acted deliberately and purposefully. The\ncourts then determine the defendants level of cognisance. Next, the defendant must\nhave targeted or singled out a particular forum. If the defendant has repeatedly and\nknowingly engaged in business with the plaintiff, the grant of jurisdiction is more\nlikely.\nUniversal rights\nAustralia and the United States are signatories to the UN International Covenant on\nCivil and Political Rights (ICCPR). In Dow Jones, Kirby J argued that the\nAustralian courts must uphold the right to freedom of speech and freedom of\nexpression as enunciated in article 19 of the ICCPR:\nArticle 19\n271\nArticle 19\n1. Everyone shall have the right to hold opinions without\ninterference.\n2. Everyone shall have the right to freedom of expression; this right\nshall include freedom to seek, receive and impart information\nand ideas of all kinds, regardless of frontiers, either orally, in\nwriting or in print, in the form of art, or through any other\nmedia of his choice.\n3. The exercise of the rights provided for in paragraph 2 of this\narticle carries with it special duties and responsibilities. It may\ntherefore be subject to certain restrictions, but these shall only\nbe such as are provided by law and are necessary:\n(a) For respect of the rights or reputations of others;\n(b) For the protection of national security or of public order (ordre\npublic), or of public health or morals.\nKirby J was the only High Court Justice to address the effect of this article of the\ncovenant. However, his Honour balanced this with the requirements of articles 17.1\nand 17.2:\nArticle 17\n1. No one shall be subjected to arbitrary or unlawful interference\nwith his privacy, family, home or correspondence, nor to\nunlawful attacks on his honour and reputation.\n2. Everyone has the right to the protection of the law against such\ninterference or attacks.\nOn the one hand Kirby J stated that any development of the common law of\nAustralia should be consistent with the ICCPR principles, to the extent that\nAustralian law does not provide effective legal protection for the honour,\nreputation and personal privacy of individuals: ‘Australia, like other nations so\nobliged, is rendered accountable to the relevant treaty body for such default’70\npursuant to the first Optional Protocol to the ICCPR.\nOn the other hand, he foreshadowed Dow Jones’ plea, stating the ‘the need for a\nclear and single rule to govern the conduct in question according to pre-established\nnorms’.\nIn response to the High Courts decision, Dow Jones issued a press release\nsupporting an action by William Alpert, the author of the article in question. In\n2003 Alpert stated that he was filing an action with the Human Rights Commission\nin Geneva, fearing unjustified restrictions on journalists. Alpert stated:\n272\nI am filing this action with the Human Rights Commission in Geneva\nbecause I fear restrictions on the ability of financial journalists such as\nmyself to report truthfully to United States investors on the activities of\nforeigners who are actively engaged in the U.S. markets. I even fear for\nour ability to report on U.S. corporations and business people, who might\nsee the High Courts decision as an invitation to attack the U.S. press in a\nremote forum. Given the differences between the laws of Australia and\nthose of other countries in the Commonwealth and beyond, the impact of\nAustralias law – as laid out by the High Cour – could harm journalists\nthroughout the world. Powerful and sophisticated plaintiffs could search\nout overseas jurisdictions willing to help stifle news coverage that was\nonly directed at local readers in those journalists’ home markets.\nAustralia has accepted the jurisdiction of the U.N. Human Rights\nCommittee and is obliged to modify Australias libel laws, should the\nCommittee find that those laws unduly restrict the right of free speech\nthats protected under Article 19 of the International Convention on\nHuman Rights.\nI hope that the Human Rights Committee will recognize the threat to\nfree speech – and an informed public – posed by Australian laws that\nallow suit against any journalist, anywhere that an article published on\nthe internet can be downloaded. Perhaps the Government of Australia\nwill recognize the need to modify its laws, even before the Human Rights\nCommittee takes up this case.71\nThis foreshadowed action may have been politic, but it seems that it did not in fact\nproceed.\nAlternative approaches\nThree days after the decision was handed down by the High Court in the Dow Jones\ncase, the 4th Circuit Appeals Court in the United States handed down its decision in\nYoung v New Haven Advocate .72 Two Connecticut newspapers published articles\non the internet allegedly defaming a Virginia resident. The New Haven Advocate\nwas a free newspaper published once a week in New Haven, Connecticut with a\nsmall number of subscribers, none from Virginia. The Hartford Courant is a daily\nnewspaper distributed in and serving Hartford, Connecticut. The Courant had eight\nmail subscribers residing in Virginia. Neither newspaper solicits subscriptions in\nVirginia, nor maintains any offices or employees within that state. Both newspapers\nposted some content on the internet. The articles included unfavourable comments\nregarding a movement of inmates between prisons and prison conditions. Young\nwas the warden at one of the prisons and commenced action in Virginia against the\n273\nnewspapers and the journalists.\nIn a statement somewhat reminiscent of the Zippo interactivity test, the court said\nthat it would only accept personal jurisdiction where the defendant:\n(1) directs electronic activity into the State, (2) with the manifested intent\nof engaging in business or other interactions within the State, and (3) that\nactivity creates, in a person within the State, a potential cause of action\ncognizable in the States courts.73\nOn the facts, the Appeals Courts held that as the newspapers were small\nConnecticut-based publications which served ‘almost exclusively Connecticut\nreaders’, they would not be subject to jurisdiction in Virginia courts. The courts\nreasoned that the defendants did not manifest an intent to engage in business or\nother interactions in Virginia. The effects test in Calder v Jones was applied,\nalthough more narrowly:\nThe facts in this case establish that the newspapers’ websites, as well as\nthe articles in question, were aimed at a Connecticut audience. The\nnewspapers did not post materials on the Internet with the manifest intent\non targeting Virginia readers. Accordingly, the newspapers could not\nhave ‘reasonably anticipate[d] being hauled into court [in Virginia] to\nanswer for the truth of the statements made in their article[s].’ Calder,\n465 U.S. at 790 (quotation omitted). In sum, the newspapers do not have\nsufficient Internet contacts with Virginia to permit the district court to\nexercise specific jurisdiction over them.74\nI n Healthgrades.com v Northwest Healthcare Alliance 75 the US Supreme Court\ndeclined an opportunity to clarify the jurisdiction test when it denied certiorari\nwithout opinion. The 9th Circuit Court of Appeals held that Washington State courts\nmay exercise personal jurisdiction over Healthgrades.com, a Delaware corporation\nwith its principal place of business in Colorado, in a defamation action arising out\nof statements found on defendants website that caused injury to the plaintiff in\nWashington. The statements were ratings of home healthcare providers, including\nthe Washington-based plaintiff. The Appeals Court approved and applied the\neffects test of Calder v Jones:76\nWe find that defendant Healthgrades.com has purposefully interjected\nitself into the Washington state home health care market through its\nintentional act of offering ratings of Washington medical service\nproviders. This act was expressly aimed at plaintiffs forum state, since\ndefendant was well aware that its rating of Washington home health care\nproviders would be of value primarily to Washington consumers…the\nallegedly defamatory rating received by plaintiff on defendants website\nconcerned the Washington activities of a Washington resident. Finally,\n274\nthe brunt of the harm allegedly suffered by plaintiff occurred in\nWashington – where plaintiff is incorporated, where plaintiff has its\nprincipal place of business, and where plaintiffs reputation is likely to\nsuffer if in fact it has been injured by defendants actions. The effects,\ntherefore, of defendants out-of-state conduct were felt in Washington.\nPlaintiffs claims arise from that out-of-state conduct, and defendant\ncould reasonably expect to be called to account for its conduct in the\nforum where it understood the effects of its action would be felt.\nWhile the underlying reasoning in HealthGrades and Young v New Haven appears\nto differ, it can be argued that its application to the facts is identical: a newspaper,\neven if published on the internet, may be aimed at a local audience, and a\nhealthcare rating service is aimed wherever the rated health care providers are\nlocated.\nThough the Dow Jones case caused international concern, its impact has been\nlimited, implicitly if not expressly, to subscription websites. In Ward Group Pty\nLtd v Brodie & Stone Plc 77 the Federal Court of Australia distinguished the Dow\nJones case:\nAs the allegedly defamatory publication was made available to\nsubscribers in Victoria on the Internet, no issue arose about the\npublication of that material in Victoria. Therefore that case is of no\nassistance to the Ward Group.78\nHowever, the Federal Court accepted a test implicitly identical to the effects test in\nCalder v Jones. The court held that the use of a trade mark on the internet, uploaded\non a website outside of Australia, without more, is not a use by the website\nproprietor of the mark in each jurisdiction where the mark is downloaded.\nHowever:\nif there is evidence that the use was specifically intended to be made in,\nor directed or targeted at , a particular jurisdiction then there is likely to\nbe a use in that jurisdiction when the mark is downloaded. Of course,\nonce the website intends to make and makes a specific use of the mark in\nrelation to a particular person or persons in a jurisdiction there will be\nlittle difficulty in concluding that the website proprietor used the mark in\nthat jurisdiction when the mark is downloaded.79\nIn what began as an April Fools Day joke, Dow Jones, through its publication the\nWall Street Journal , published an article about the floating of shares by Harrods,\nwith the headline ‘The Enron of Britain?’ Action was commenced by Harrods in\nEngland, claiming that the article caused serious damage to the companys\nreputation. Dow Jones filed suit in the Southern District of New York, seeking to\nblock the action. In the US case Judge Marrero said that Dow Jones was eager to\n275\navoid a British trial because Britains libel laws were far more friendly to\nplaintiffs.80 In a declaratory judgment, Judge Marrero expressed concern that any\nrelief granted by the New York Court would nevertheless be subject to recognition\nand enforcement in the United Kingdom. Dow Jones argued that a declaratory\njudgment was appropriate in that it would free them from ‘vexatious and\noppressive’ litigation abroad. In refusing relief, the judge held that granting\nauthority to enjoin foreign lawsuits should be done sparingly and only with care\nand restraint.\nSingle publication rule\nMost US states have adopted a single publication rule which treats all sales of a\ndefamatory book or newspaper as a single publication. The time of the single\npublication (download) is fixed as the time of the first publication. In the United\nKingdom and Australia each publication gives rise to a separate cause of action.\nThat principle was confirmed by the English Court of Appeal in Loutchansky v\nTimes Newspapers Ltd (Nos 2–5).81\nSamuels JAs observation in Australian Broadcasting Corporation v\nWaterhouse,82 that a single publication rule could only be introduced throughout\nAustralia by statute, was approved by Kirby J in Dow Jones v Gutnick.83\nIn the same case Gaudron J described the single publication rule as ‘a legal\nfiction which deems a widely disseminated communication…to be a single\ncommunication regardless of the number of people to whom, or the number of states\nin which, it is circulated’.84 Dow Jones described the Australian position as\n‘primitive’.\nCallinan J rejected Dow Jones’ submission that publication occurs at one place,\nsuch as the place where the matter is provided, or first published, on the grounds\nthat that view ‘cannot withstand any reasonable test of certainty and fairness’.\nHowever, he expressed concern that publishers would set up in a ‘defamation free\njurisdiction’ or one in which the defamation laws are tilted towards defendants.\nWhy, he asked, ‘would publishers, owing duties to their shareholders to maximise\nprofits, do otherwise?’85\nGleeson CJ, McHugh, Gummow and Hayne JJ noted that in Firth v State of New\nYork86 the New York Court of Appeals decided that the one-year statute of\nlimitation in New York runs from the first posting of defamatory matter upon an\ninternet site and that the single publication rule applies to that first posting. The\nAustralian position on the position of the limitation period is yet to be determined.\nIn Harrods Limited v Dow Jones & Co. Inc.87 Justice Eady noted the limited\namount of publication in England (only 10 copies of the Wall Street Journal ) and\nthat there were very few English hits to the Wall Street Journal website.\nNevertheless jurisdiction was granted to protect a reputation in England. His\n276\nHonour rejected the single publication rule, which provides that a defendant should\nonly be sued in the place of the first publication of the defamatory material, finding\ninstead that if a target of a publication is based in England, then an online or offline\npublisher can be brought before the UK courts.\nSubstantial publication\nJurisdiction was not taken by the English courts in Jameel v Dow Jones & Co.\nInc.,88 where Dow Jones published the article ‘WAR ON TERROR, List of Early\nal Qaeda Donors Points to Saudi Elite, Charities’ in the Wall Street Journal ,\nallegedly defaming Yousef Jameel, a Saudi businessman. Jameel was unable to\nprove ‘substantial harm’. Although there were 6000 online subscribers to the Wall\nStreet Journal, technical evidence showed that only five subscribers had actually\naccessed the article, and that three of those five were associated with Jameel. The\nother two subscribers had no knowledge of or connection to Jameel. The court\nruled that without a ‘substantial’ publication in England, there could have been no\ndamage to Jameels reputation.\nUniform defamation legislation – choice of law\nFrom 1 January 2006, in all states and territories in Australia except the Northern\nTerritory, legislation for uniform defamation law commenced:89\nChoice of law for defamation proceedings\n(1) If a matter is published wholly within a particular Australian\njurisdictional area, the substantive law that is applicable in that\narea must be applied in this jurisdiction to determine any cause\nof action for defamation based on the publication.\n(2) If there is a multiple publication of matter in more than one\nAustralian jurisdictional area, the substantive law applicable\nin the Australian jurisdictional area with which the harm\noccasioned by the publication as a whole has its closest\nconnection must be applied in this jurisdiction to determine\neach cause of action for defamation based on the publication.\n(3) In determining the Australian jurisdictional area with which the\nharm occasioned by a publication of matter has its closest\nconnection, a court may take into account:\n(a) the place at the time of publication where the plaintiff was\nordinarily resident or, in the case of a corporation that may assert a cause\n277\nof action for defamation, the place where the corporation had its\nprincipal place of business at that time, and\n(b) the extent of publication in each relevant Australian jurisdictional\narea, and\n(c) the extent of harm sustained by the plaintiff in each relevant\nAustralian jurisdictional area, and\n(d) any other matter that the court considers relevant.90\nSubsection (2) in particular assist in determining jurisdiction within Australia. This\nprovision is in part a codification of the ‘effects test’ postulated in the US case of\nCalder v Jones.91\nConclusion\nThe application of traditional rules has proved appropriate for cases such as\nBensusan and Macquarie Bank. Where the internet is used peripherally – for\nexample, where conduct remains in a single, specific, geographical location – the\nmere use of the internet should not complicate the application of the jurisdictional\nprinciples.\nIn the absence of an unusual feature involving the internet as the medium of\nchoice, courts should apply the usual principles for jurisdictional questions. Quite\noften there are a number of factors involved in a given dispute, including the use of\nthe telephone and mail. Any peripheral effect of the internet should be disregarded\nunless it is central to the dispute. Where the internet is central to a dispute,\nconsideration should be given to the effect of non-internet factors. The mere\npossibility of access to a website should be insufficient grounds for jurisdiction.\nSimilarly, the mere viewing of a site, as opposed to engaging in some further\ninteraction, should be disregarded. The courts should adopt the distinction between\npassive and active sites. The greater the degree of interactivity the greater the\nlikelihood that the sites owner is engaging, or should be aware that he or she is\nengaging, in commerce with the user. Correspondingly, where the site owner\npurposefully avails himself or herself of the benefits of commerce from that\njurisdiction, he or she should be more likely to be subject to that jurisdiction. If\ncourts take jurisdiction too broadly or recklessly there should be legislative\nintervention to impose a fairness requirement similar to the approach taken in the\nUS cases.92 The effect of action by the defendant and its likelihood to result in harm\nto a known target will also affect the courts’ reasoning in taking jurisdiction.\nThe development of the internet permits various uses.93 Distinctions will\ncontinue to be made between the intended, expected and foreseeable consequences\nof those uses. The typical website is open to the world, and evidence of use and\naccess within a courts jurisdiction is necessary before that court will grant\n278\njurisdiction. The same cannot be said of subscription websites, where it is\nreasonable to assume use and access by subscribers. Discussion forums or bulletin\nboards may similarly be open or closed. Proof of use and of impact are necessary\nfor jurisdiction to be granted. Electronic mail is less of an issue as it is typically\ntargeted. Nevertheless, the location of the recipient, the computer and server\nbecome complicating factors.\nFurther reading\nAnonymous, ‘A “category-specific” legislative approach to the internet\npersonal jurisdiction problem in US law’, (2004) 117 Harv L Rev 1617.\nCohen, Debra, ‘The single publication rule: One action, not one law’, (1966)\n62 Brooklyn Law Review 921.\n1 Kirby J, Dow Jones v Gutnick  HCA 56, para 112.\n2 See secondlife.com and www.facebook.com.\n3 See Peter Nygh\nand Martin Davies\n, Conflict of laws in Australia, 7th edn, LexisNexis, Sydney, 2002.\n4 See Vita Food Products Inc. v Unus Shipping Co.  AC 277, per Lord\nWright.\n5 For example, see Golden Acres Ltd v Queensland Estates Pty Ltd \nQd R 378, and Minnesota v Granite Gate Resorts Inc. 568 NW 2d 715.\n6 See Atlantic Underwriting Agencies Ltd v Compagnia di Assicuranzione di\nMilano SpA  2 Lloyds Rep 240.\n7 See Re United Railways of the Havana and Regla Warehouses Ltd \nCh 52 and Mendelson-Zeller Co. Inc. v T & C Providores Pty Ltd\n 1 NSWLR 366.\n8 See Spiliada Maritime Corporation Ltd v Cansulex Ltd  AC 460.\n9 See Oceanic Sun Line Special Shipping Co. v Fay (1988) 62 ALJR 389;\nVoth v Manildra Flour Mills Pty Ltd (1990) 65 ALJR 83; Henry v\nHenry (1996) 185 CLR 571.\n10  HCA 10.\n11  HCA 56; (2002) 210 CLR 575.\n12  HCA 56, –; (2002) 210 CLR 597–98.\n13  HCA 56; on appeal from Gutnick v Dow Jones  VSC 305\nand Dow Jones Company Inc. v Gutnick  VSCA 249. See,\n279\ngenerally, ‘A “category-specific” legislative approach to the internet\npersonal jurisdiction problem in US law’, (2004) 117 Harv LR 1617.\n14  VSC 305, para 3.\n15 Australian Railways Union v Victorian Railways Commissioners (1930)\n44 CLR 319 at 33, per Dixon J.\n16 See M Kirby\n, ‘Privacy in cyberspace’, (1998) UNSWLJ 47.\n17  VSC 305, paras 15–20.\n18  VSC 305, paras 70 and 71.\n19  NSWSC 526.\n20 960 F. Supp. 456 (D Mass 1997).\n21  CLJ 188.\n22  OJ No. 2537 QL (Ont Gen Div).\n23  QB 201.\n24 465 US 783 (1984).\n25 Counsel also referred to R v Burdett (1820) 4 B & Ald 115.\n26  VSC 305, para 75.\n27  VSC 305, para 131.\n28  VSC 305, para 129.\n29 Dow Jones v Gutnick  VSCA 249. This judgment was less than two\npages.\n30  HCA 56, para 117.\n31  HCA 56, para 79.\n32  HCA 56, para 51.\n33  HCA 56, para 166.\n34 Postscript: The High Court of Australia determined that the Supreme Court\nof Victoria had jurisdiction, but it did not determine liability. The issue\nof defamation did not reach the court. Dow Jones made an out of court\npayment of $450,000, but claimed that the payment was not for\ndefamation. Dow Jones claimed it was in the right and that the payment\nwould not cover Gutnicks legal costs. Gutnick claimed vindication.\n35  HCA 56, para 54.\n36 465 US 783 (1984).\n37 465 US 783 (1984), 788–89.\n38 For example by Hedigan J in Gutnick v Dow Jones  VSC 305 and\n280\nHealthgrades.com v Northwest Healthcare Alliance No. 01-35648 (9th\nCir 2002).\n39 See G Williams\n, ‘Venue and the Ambit of Criminal Law’, Part 3, (1965) 81 Law Quarterly\nReview 518.\n40 Ward v R  HCA 11, para 4 per Stephen J.\n41  HCA 56, para 24.\n42  NSWSC 526.\n43  NSWSC 526, para 12.\n44  NSWSC 526, para 14.\n45 937 F. Supp. 161 (D Conn 1996).\n46  NSWSC 526, see paras 14–16.\n47  NSWSC 138.\n48  NSWSC 138, para 12.\n49  NSWSC 254.\n50 See below.\n51  NSWSC 254, para 55.\n52  NSWSC 254, para 41.\n53  FCA 1062.\n54 For example, see the British Columbia Court of Appeal in Braintech Inc. v\nKostiuk (1999) 63 BCLR (3d) 156 and the High Court of Delhi in Yahoo\nInc. v Akash Arosa  FSR 931.\n55 326 US 310 (1945).\n56 326 US 310 (1945), 316.\n57 937 F. Supp. 161 (D Conn 1996). See also Maritz Inc. v Cybergold Inc.\n947 F. Supp. 1328 (ED Mo 1996).\n58 568 NW 2d 715.\n59 952 F. Supp. 1119 (WD Pa 1997). See also Helicopteros Nationales de\nColumbia SA v Hall 466 US 408.\n60 952 F. Supp. 1119, 1124 (WD Pa 1997).\n61 937 F. Supp. 296 (SD NY 1996).\n62 See also Cybersell Inc. v Cybersell Inc. 130 F. 3d 414 (9th Cir 1997).\n63 977 F. Supp. 327 (D NJ 1997).\n64 See also Casio India Co. Ltd v Ashita Tele Systems Pvt Ltd (2003 (27)\nPTC 265 (Del)), where the Delhi High Court held that once a website\n281\ncan be accessed from Delhi, it is enough to invoke the territorial\njurisdiction of the court.\n65 Zippo Manufacturing Co. v Zippo Dot Com Inc. 952 F. Supp. 1119 (WD\nPa 1997), 1124.\n66 89 F. 3d 1257 (6th Cir 1996).\n67 939 F. Supp. 1032 (SD NY 1996).\n68 Zippo Manufacturing Co. v Zippo Dot Com Inc. 952 F. Supp. 1119 (WD\nPa 1997), 1124.\n69 Criticism has been levelled at the minimum contacts test in relation to the\ninternet and as to what level of interactivity is required to trigger\njurisdiction. The required level of ‘interactivity’ can be gleaned from\nCompuserve v Patterson 89 F. 3d 1257 (6th Cir 1996) and Cybersell\nInc. v Cybersell Inc. 130 F. 3d 414 (9th Cir 1997).\n70 Dow Jones v Gutnick  HCA 56, para 116.\n71 Dow Jones press release, April 2003.\n72 315 F. 3d 256 (4th Cir 2003)\n73 The court was quoting from Scan Inc. v Digital Service Consultants Inc.\n293 F. 3d 707, 714 (4th Cir 2002).\n74 Young v New Haven Advocate 315 F. 3d 256, 264 (4th Cir 2003).\n75 No. 01-35648 (9th Cir 2002).\n76 See above.\n77  FCA 471.\n78  FCA 471, para 42.\n79  FCA 471, para 43, emphasis added.\n80 Dow Jones & Co. Inc. v Harrods Ltd, 237 F. Supp. 2d 394 (SD NY 2002).\n81  QB 783.\n82 (1991) 25 NSWLR 519.\n83  HCA 56, para 127.\n84  HCA 56, para 57. See Debra Cohen, ‘The single publication rule:\nOne action, not one law’, (1966) 62 Brooklyn Law Review 921.\n85  HCA 56, para 199.\n86 775 NE 2d 463 (2002).\n87  EWHC 1162.\n88  EWCA Civ 75.\n89 The Northern Territorys uniform legislation commenced on 26 April 2006.\nSee Chapter 12.\n282\n90 Defamation Act 2005 (NSW) s11, Defamation Act 2005 (Qld) s11,\nDefamation Act 2005 (Tas) s11, Defamation Act 2005 (Vic) s11,\nDefamation Act 2005 (WA) s11, Defamation Act 2005 (SA) s11;\nDefamation Act 2006 (NT) s10; and Civil Law (Wrongs) Act 2002\n(ACT) s123.\n91 See Effects test, above.\n92 In relation to due process and the 14th Amendment; International Shoe Co.\nv Washington 326 US 310.\n93 For example, Australian Football League v Age Company Ltd \nVSC 308 involved a discussion forum. The Victorian Supreme Court\ndescribed the discussion forum as enabling ‘opinions, gossip, trivia,\nrumour and speculation to be published as an assertion of fact by\nanonymous contributors’ (para 55).\n283\n12 Defamation in cyberspace\nFrom the beginning, the boundaries of appropriate and acceptable behaviour on the\ninternet have been challenged. The notion of the internet as the last bastion of free\nspeech has produced a general mindset that the laws that bind and regulate social\nbehaviour should not apply in that space. Arguably, the laws that have been most\nchallenged relate to intellectual property rights. However, there has developed a\nsense that anything written in an electronic forum should somehow be immune from\noversight and censure. Courts internationally have disagreed with this view,\nparticularly in the realm of defamation.\nThere is no universal definition of defamation, and so no one set of common\nelements that need to be satisfied in all jurisdictions. Articles 17 and 19 of the UN\nInternational Covenant on Civil and Political Rights (ICCPR) provide for both\nfreedom of expression and the right to hold opinions, but balance these rights and\nfreedoms with considerations of unlawful interference, privacy and the protection\nof honour and reputation.1\nThese articles were considered and applied by Kirby J in the internet defamation\ncase of Dow Jones v Gutnick.2 (The case concerned the reputation of a Melbournebased businessman, Joseph Gutnick, who alleged that the Dow Jones corporation\ndefamed him by publishing an article titled ‘Unholy Gains’ in Barrons, an\ninternational financial magazine. Barrons could be purchased in hardcopy or\nreaders could subscribe online.) According to Kirby J:\nany development of the common law of Australia, consistent with such\nprinciples, should provide effective legal protection for the honour,\nreputation and personal privacy of individuals. To the extent that our law\ndoes not do so, Australia, like other nations so obliged, is rendered\naccountable to the relevant treaty body for such default.3\nThe laws dealing with defamation have always struggled, in a philosophical sense,\nwith freedom of speech, freedom of the press, the framing of political debate, and\nthe public disclosure of malfeasance, as these have all in some ways always\ninherently contradicted the rights of protection afforded by the principles of\ndefamation. While the ‘truth’ of defamatory remarks has generally been held to be a\ndefence to defamation suits,4 the burden of proof for establishing truth has\noccasionally been shown to be so onerous as to destroy any protection afforded by\nthis defence.\nThe opportunity for a significant body of ‘e-defamation’ case law to develop has\nbeen limited. Many jurisdictions are struggling with content-specific issues of\ncyberspace and have yet to address the implications of content, such as its effect on\nreputation. Defamation law in cyberspace will be tested in the courts and the\n284\ninterface between the law and the internet will continue to be built.\nAny discussion of the law of defamation in cyberspace must be conducted in\nconjunction with a discussion of jurisdictional issues in cyberspace.5 This chapter\nwill provide an overview of the legal position regarding online defamation in\nAustralia and, to some extent, in the north American and UK jurisdictions.\nDefamation principles\nKirby J in Dow Jones v Gutnick6 restated defamation principles in the following\nterms:\nFirst, a starting point for the consideration of the submission must be an\nacceptance that the principles of defamation law invoked by the\nrespondent are settled and of long standing. Those principles are:\n(1) that damage to reputation is essential for the existence of the tort\nof defamation;\n(2) that mere composition and writing of words is not enough to\nconstitute the tort; those words must be communicated to a third\nparty who comprehends them;\n(3) that each time there is such a communication, the plaintiff has a\nnew cause of action; and\n(4) that a publisher is liable for publication in a particular\njurisdiction where that is the intended or natural and probable\nconsequence of its acts.7\nDefamation reform\nThe law of defamation in Australia is provided by state and territory legislation.\nUntil recently it has differed quite significantly between jurisdictions, particularly\nin terms of the elements that need to be satisfied to establish an action for\ndefamation. The term ‘defamation’ has historically been a composite tort\nexpression encompassing both slander and libel, each of these being separate torts\nfor verbal and written defamation respectively, and this distinction persists in some\njurisdictions. All state and territory jurisdictions recently reformed their statutes in\norder ‘to ensure the law of defamation within the State(s)…is uniform in substance\nwith the law of defamation in all Australian jurisdictions’.8\nOne of the reforms provides for the abolition of the distinction between spoken\nand published defamation. None dealt specifically with online defamation. The\nWorking Group of State and Territory Officers that created the reform proposals\n285\ndid, however, highlight the need for the defence of ‘innocent dissemination’ to be\ndrafted in such a way as to ‘ensure that the defence takes proper account of modern\nmeans of mass communication and the problems associated with its monitoring’.9\nThis has been reflected in the legislation by provisions that exempt from the\ndefinition of ‘primary distributor’ those who provide services for ‘the processing,\ncopying, distributing or selling of any electronic medium in or on which the matter\nis recorded or the operation of, or the provision of, any equipment, system or\nservice, by means of which the matter is retrieved, copied, distributed or made\navailable in electronic form’.10\nThese reforms were specifically aimed at standardising the legislative response\nto the case law across all state and territory jurisdictions, not at codifying the\nexisting case law. The revised statutes do not affect the operation of the precedents\nalready in law except to the extent that the statutes specifically provide.\nDefamation in cyberspace – actions and issues\nIt has been established by both Australian courts and courts in other jurisdictions\nthat a person may be defamed in an online forum and that damages may be awarded.\nThe decision of the Supreme Court of Western Australia in 1993 in Rindos v\nHardwick11 was the first internet-based defamation determination in any\njurisdiction. The decision did not advance principles of online defamation but the\naward of $40 000 in damages for untrue allegations of paedophilia demonstrated\nthat a person can be held liable for statements made in the public space of the\ninternet.\nThere have been few defamation actions related to online publication to date.12\nIn the Australian context, this is likely to remain so given that the defamation\nreforms of 2006 specifically provide for an ‘offer of amends’ process that must\nprecede formal litigation.13 Historically, the introduction of such alternative dispute\nresolution mechanisms has resulted in a reduction in litigation; the impact on\ndefamation actions is likely to be the same.\nElectronic publications using the internet increase the scope of defamation\nactions in three ways. First, it is an additional mode of communication: many\nnewspapers, magazines and media outlets republish their material online, and radio\nand television stations also place videos, sound files or transcripts online. Second,\nonline publication of new material, including material that is otherwise intended to\nbe relatively private, has a broad reach. Third, the broader reach can affect the\namount of damages. Publication can occur through:\n• the sending and redistribution of emails;\n• postings to bulletin boards, news groups or discussion lists;\n• chat rooms;\n• information placed on web pages, including text, sound and video; and\n286\n• files that are made available for downloading.\nThese actions can occur easily and unintentionally, and can reach a large and\nindeterminate audience. In Australia, a separate cause of action arises each time\ndefamatory material is published (see Single publication rule, below). This means\nthat when defamatory material on the internet is downloaded and read, a new cause\nof action arises. If a person merely repeats anothers defamatory statement, a new\nand separate cause of action arises,14 so employees who forward defamatory\nemails may also be liable.\nIt is often the case that the authors of defamatory statements are protected from\nlegal proceedings by their impecuniosity; those damaged may then seek out a party\nmore likely to be able to meet any damages awards. This is often unsuccessful\nbecause the law in many jurisdictions allows a publisher or disseminator\nprotection through the principle of ‘innocent dissemination’. Such ‘innocence’ is\ngreatly qualified, however, and defendants using this defence have a high\nevidentiary burden in many jurisdictions. In Australia, the innocent dissemination\ndefence appears in every state and territory jurisdiction:\nDefence of innocent dissemination\n(1) It is a defence to the publication of defamatory matter if the\ndefendant proves that:\n(a) the defendant published the matter merely in the capacity, or as an\nemployee or agent, of a subordinate distributor, and\n(b) the defendant neither knew, nor ought reasonably to have known,\nthat the matter was defamatory, and\n(c) the defendants lack of knowledge was not due to any negligence on\nthe part of the defendant.\n(2) For the purposes of subsection (1), a person is a ‘subordinate\ndistributor’ of defamatory matter if the person:\n(a) was not the first or primary distributor of the matter, and\n(b) was not the author or originator of the matter, and\n(c) did not have any capacity to exercise editorial control over the\ncontent of the matter (or over the publication of the matter) before it was\nfirst published.\n(3) Without limiting subsection (2)(a), a person is not the first or\nprimary distributor of matter merely because the person was\ninvolved in the publication of the matter in the capacity of:\n(a) a bookseller, newsagent or news-vendor, or\n(b) a librarian, or\n(c) a wholesaler or retailer of the matter, or\n287\n(d) a provider of postal or similar services by means of which the\nmatter is published, or\n(e) a broadcaster of a live programme (whether on television, radio or\notherwise) containing the matter in circumstances in which the\nbroadcaster has no effective control over the person who makes the\nstatements that comprise the matter, or\n(f) a provider of services consisting of:\n(i) the processing, copying, distributing or selling of any electronic\nmedium in or on which the matter is recorded, or\n(ii) the operation of, or the provision of any equipment, system or\nservice, by means of which the matter is retrieved, copied, distributed or\nmade available in electronic form, or\n(g) an operator of, or a provider of access to, a communications\nsystem by means of which the matter is transmitted, or made\navailable, by another person over whom the operator or\nprovider has no effective control, or\n(h) a person who, on the instructions or at the direction of another\nperson, prints or produces, reprints or reproduces or\ndistributes the matter for or on behalf of that other person.15\nI n Stratton Oakmont Inc. v Prodigy Services Co.,16 the innocent dissemination\ndefence was disallowed in the Supreme Court of New York. Prodigy Services Co.\n(Prodigy) was an online provider of a website that offered internet forum services\nto subscribers. Unlike most providers, Prodigy sought to differentiate itself in the\nmarket by providing a degree of censorship on the site. This censorship was\nminimal, comprising only a software-driven review of content for a preset range of\nspecific words, mostly profanities. Prodigy did not advertise the limitations of its\ncensorship role. When one of Prodigys site users posted defamatory material in a\nforum about Stratton Oakmont Inc., the court was asked to determine the extent to\nwhich Prodigys limited censorship program constituted editorial control. The court\ndetermined that while Prodigy in fact had no specific knowledge of the defamatory\ncontent, the fact that they practised some editorial control and informed users of that\nmeant that they were liable for the defamation and could not claim innocent\ndissemination.\nThere was some initial misinformation regarding the Prodigy decision. One\ninterpretation appeared to be that any control over the content to be disseminated\nwould make the administrator liable. Administrators and Internet Service Providers\n(ISPs) thus often chose not to censor sites to avoid liability. In the United States,\nsection 230(c)(1) of the Communications Decency Act 1996 (US) effectively\noverturned this restrictive interpretation of the Prodigy decision:\nNo provider or user of an interactive computer service shall be treated as\n288\nthe publisher or speaker of any information provided by another\ninformation content provider.\nThis section excludes administrators, ISPs and other service providers from\nliability for defamatory statements made by users of public systems unless they\nknow of defamatory material and fail to take action on it, or are themselves\ninvolved in either the creation or development of the material.17 Critics of the\nsection claim that it is too broad, but it is yet to be repealed or modified. In Barrett\nv Rosenthal the court stated (in obiter):\nWe conclude that section 230 prohibits ‘distributor’ liability for Internet\npublications. We further hold that section 230(c)(1) immunizes\nindividual ‘users’ of interactive computer services, and that no practical\nor principled distinction can be drawn between active and passive use.\nWe acknowledge that recognizing broad immunity for defamatory\nrepublications on the Internet has some troubling consequences. Until\nCongress chooses to revise the settled law in this area, however,\nplaintiffs who contend they were defamed in an Internet posting may only\nseek recovery from the original source of the statement.18\nIn Cubby v CompuServe,19 CompuServe was the administrator for an online forum.\nHowever, unlike Prodigy, CompuServe did not exercise any editorial control over\nthe online forum content. The court intimated, but did not specifically find, that\nelectronic publishers ought not be found liable for content on sites hosted on their\nservers in these circumstances:\n[the] requirement that a distributor must have knowledge of the contents\nof a publication before liability can be imposed for distributing that\npublication is deeply rooted in the First Amendment, made applicable to\nthe states through the Fourteenth Amendment.20\nCompuServes defence was aided by the fact that the system operators for their\nonline forums were independent entrepreneurs who were contracted to ‘manage,\nreview, create, delete, edit and otherwise control the contents’ 21 of the forum on\nwhich the offensive material appeared. Cubby also sought to hold CompuServe\nvicariously liable for the libel, but the court held there to be no agency between the\ndefendant and the other parties to the libel.\nStatute of limitations\nThe question of precisely when a defamatory tort occurs (for the purposes of\ndeciding when a Statute of Limitation commences to operate) was addressed by the\nNew York Court of Appeals in Firth v State of New York 22 and considered by the\n289\nHigh Court of Australia in Dow Jones v Gutnick.23 The difficulty in relation to\nonline publication is that, unlike other forms of publication, internet publication is\ncontinuous: 24 hours a day, seven days a week. Also, material placed online two\nyears ago may only come to the attention of the general public after some form of\npublicity or report in the news. In Australia the limitation for commencing legal\nproceedings is one year from publication, with extensions of up to three years in\nlimited circumstances.24\nThe US court held that the statute runs from the first posting of the defamatory\narticle onto an internet site. In Australia the question has not definitively been\ndecided.\nSingle publication rule\nStrictly speaking, a defamatory utterance or publication arises each time a\nnewspaper or book is sold or read, or separately in the homes of each person who\nhears or views a radio or television broadcast. A rule of convenience has\ndeveloped to treat these multiple actions as one. The rule has been described as ‘a\nlegal fiction which deems a widely disseminated communication…to be a single\ncommunication regardless of the number of people to whom, or the number of states\nin which, it is circulated’.25\nApplying this principle to internet web pages is a minefield. As a continuous\npublication, the defamatory statement may be read, heard or viewed at completely\ndifferent times, perhaps over a number of years, in locations all over the world.\nIn their joint judgment in Dow Jones v Gutnick,26 Gleeson CJ, McHugh,\nGummow and Hayne JJ considered the single publication rule and its development\nin relation to the place of publication.\nTo trace, comprehensively, the origins of the so-called single publication\nrule…may neither be possible nor productive. It is, however, useful to\nnotice some of the more important steps that have been taken in its\ndevelopment. Treating each sale of a defamatory book or newspaper as a\nseparate publication giving rise to a separate cause of action might be\nthought to present difficulties of pleading and proof. Following early\nEnglish authority holding that separate counts alleging each sale need not\nbe pleaded in the declaration, American courts accepted that, where the\ndefamatory matter was published in a book or newspaper, each\npublication need not be pleaded separately. Similarly, proof of general\ndistribution of a newspaper was accepted as sufficient proof of there\nhaving been a number of separate publications. It was against this\nbackground that there emerged, at least in some American States by the\nlate nineteenth century, the rule that a plaintiff could bring only one action\n290\nagainst a defendant to recover damages for all the publications that had\nby then been made of an offending publication. The expression ‘one\npublication’ or, later, ‘single publication’ was first commonly used in\nthis context.\nIn the early decades of the twentieth century, the single publication rule\ncame to be coupled with statements to the effect that the place of that\nsingle publication was the place where the newspaper or magazine was\npublished. The source of this added proposition was given as a case of\nprosecution for criminal libel where the question was that raised by the\nSixth Amendment to the United States Constitution and its reference to the\n‘state or district wherein the crime shall have been committed.’ Despite\nthis difference in the context in which the question of location arose, the\nstatement that the place of publication was where the newspaper or\nmagazine was published was sometimes taken as stating an element of (or\nat least a consequence of) the single publication rule applied to civil\ndefamation suits.27\nIn Firth v State of New York 28 the court noted that the rationale behind the single\npublication rule was even more applicable to the internet, as there is greater\npotential there for multiple triggerings of the statute of limitations as well as for\nmultiple suits and vexatious actions. The court regarded unrelated modifications to\nthe website as insufficient to restart the one year limitation period. This is to be\ndistinguished from the issue of a new edition of a book, which is sold to a new and\ndifferent readership.\nThe principle of the single publication rule is codified in legislation only in the\nUnited States. It has not found favour in United Kingdom or Australasian\njurisdictions. The Uniform Single Publication Act (US) provides that multistate\ndefamation must be dealt with in one jurisdiction and that the findings of the court\nin that jurisdiction are binding on the plaintiff in all other jurisdictions for any\nsingle defamatory publication. The Uniform Single Publication Act is legislation\nthat becomes law when a state enacts it. Its aim is to create a template. It has been\nwidely adopted across the United States with very similar wording to this:\nNo person shall have more than one (1) cause of action for damages for\nlibel, slander, invasion of privacy or any other tort founded upon a single\npublication, exhibition or utterance, such as any one (1) edition of a\nnewspaper, book or magazine, any one presentation to an audience, any\none (1) broadcast over radio or television or any one (1) exhibition of a\nmotion picture. Recovery in any action shall include all damages for any\nsuch tort suffered by the plaintiff in all jurisdictions.29\nIn the United Kingdom the House of Lords was called upon to deal with the single\npublication rule in the defamation case of Berezovsky v Michaels. 30 An article\n291\npublished online was alleged to have defamed two Russian businessmen residing in\nBritain. The article was published by the Forbes Corporation in hardcopy and on\ntheir website. Their Lordships held that ‘The Uniform Single Publication Act does\nnot assist in selecting the most suitable court for the trial: it merely prevents a\nmultiplicity of suits’. The court stated that English law could find ‘no support for\nthis argument’ but then reiterated their support for the long-established legal\nprinciple that ‘each publication is a separate tort’.31\nIn the Dow Jones case, Dow Jones sought to persuade the court that as they were\nincorporated in the United States, and the server upon which the defamatory\nmaterial was published was also physically located in that country, the most\nappropriate forum was the United States. The High Court disagreed on a number of\ngrounds, including that Victoria was not a ‘clearly inappropriate forum’ to hear the\naction. The court expressed concerned that applying a single publication rule for\ninternet-based defamation (in Australia) would in effect differentiate such\ndefamation from all other types of defamation.\nKirby J gave a number of reasons for ‘declining an Internet-specific single\npublication rule’. First, he concluded that the court could not justify changing the\nrules of Australian common law merely as a response to the Dow Jones\nsubmission. Second, he added:\nWhere rules such as these are deeply entrenched in the common law and\nrelate to the basic features of the cause of action propounded, their\nalteration risks taking the judge beyond the proper limits of the judicial\nfunction.32\nThird, he expressed concern about a separate rule for the internet, stating that\n‘Rules should be technology-neutral.’33 Fourth, he noted that there would be\n‘special difficulties’ in achieving judicial reform of the multiple publication rule in\nAustralian law, even if such reform were warranted.34\nIn the absence of a specific single publication rule, Australian courts have\nestopped parties from raising the same issue in subsequent litigation. It was said in\nHenderson v Henderson that:\nwhere a given matter becomes the subject of litigation in, and of\nadjudication by, a Court of competent jurisdiction, the Court requires the\nparties to that litigation to bring forward their whole case, and will not\n(except under special circumstances) permit the same parties to open the\nsame subject of litigation in respect of matter which might have been\nbrought forward as part of the subject in contest, but which was not\nbrought forward, only because they have, from negligence, inadvertence,\nor even accident, omitted part of their case.35\nSingle controversy principle\n292\nAustralian courts have de facto adopted a ‘single controversy’ principle: where\nthere are multiple publications of the same defamatory matter there is only a ‘single\ncontroversy’ to be litigated. That controversy must include all separate utterances\nof the defamatory allegation, in order to properly determine breach and damages.\nThe cases to date have not adequately addressed the issues of timing and place,\nparticularly where internet publication is concerned.\nSingle cause rule\nThe single publication rule is not to be confused with the ‘single cause’ provision\nin the uniform Defamation Acts across Australia, which provides that:\nA person has a single cause of action for defamation in relation to the\npublication of defamatory matter about the person even if more than one\ndefamatory imputation about the person is carried by the matter.36\nAdventitious or opportunistic conduct\nIn Dow Jones, both parties raised the issue of adventitious or opportunistic\nconduct.37 Dow Jones claimed that permitting jurisdiction in Victoria – that is, at\nthe place of download rather than the place of upload – would encourage plaintiffs\nto commence actions in jurisdictions with favourable defamation laws. Gutnicks\nresponse was that should a plaintiff improperly attempt to take such an advantage,\nthe courts should consider rejecting jurisdiction. He claimed that his choice of\nvenue was not adventitious or opportunistic: Victoria was the place of his\nresidence and his prime business interests.\nGutnick claimed that permitting jurisdiction in New Jersey – that is, at the place\nof upload rather than the place of download – would encourage defendants to move\ntheir servers to jurisdictions with weak defamation laws. Dow Jones’ response\nwas a copy of Gutnicks: should a defendant improperly attempt to take such an\nadvantage, the courts should consider rejecting jurisdiction. Equally, Dow Jones\nclaimed that its choice of location for the server was not adventitious or\nopportunistic.\nJurisdiction for defamatory statement\nTo date the definitive online defamation case in Australian jurisprudence remains\nDow Jones v Gutnick.38\nThe High Court held firm to the Australian legal doctrine that forum non\nconveniens can only be applied by determining whether or not the Australian forum\n293\nis ‘clearly inappropriate’.39 The burden under this doctrine rests with the applicant.\nTo succeed in this, and thereby have the matter removed to another forum, the\napplicant must demonstrate under the ‘Spiliada principles’ that their preferred\nforum, in this case the United States, was the ‘natural forum’ in which to hear the\nmatter. In Spiliada Maritime Corp. v Cansulex Ltd,40 Lord Goff described the\n‘natural forum’ as being ‘that with which the action had the most real and\nsubstantial connexion’. In the Dow Jones case, the court declined to refuse the\nexercise of its jurisdiction, holding that when ‘Victorian law was the lex loci\ndelicti, Victoria is the natural forum [and]…the appropriate and the convenient\nforum’.41\nConclusion\nWhile much of the law dealing with online defamation and other torts committed on\nthe internet is still in its earliest days of development and interpretation, some\ngeneral principles have already emerged. The first is that it would appear that for\nthe purposes of mitigating risk, it is wiser for forum providers to not provide any\neditorial control whatsoever – and to advertise this fact widely.\nNext, employers would be well advised to ensure that there are rigorous and\neffective systems in place to prevent employees from putting the firm into a\ndefensive position. These might include a staff training régime, a compulsory Code\nof Conduct, and clear guidelines on the roles and responsibilities of every\nemployee who is exposed to the internet as part of their normal duties.\nAs the law develops, and both governments and industry groups better\nunderstand their rights and responsibilities in this domain, the law will be\ndeveloped and amended to provide direction and protection for those most at risk.\nFurther reading\nAustralian Law Reform Commission, (1992) Choice of law, Report No. 58.\nAustralian Law Reform Commission, (1979) Unfair publication:\nDefamation and privacy, Report No. 11.\nDebra Cohen, ‘The single publication rule: One action, not one law’, (1966)\n62 Brooklyn Law Review 921.\nUta Kohl, ‘Defamation on the internet – A duty free zone after all? Macquarie\nBank Ltd & Anor v Berg’, (2000) 22 Sydney Law Review.\nLyrissa Barnett Lidsky, ‘Silencing John Doe: Defamation & discourse in\ncyberspace’, (2000) 49 Duke L J 855.\nKen S Myers, ‘Wikimmunity: Fitting the Communications Decency Act to\nWikipedia’, (2006) 20 Harvard Journal of Law and Technology 163.\n294\nDavid Rolph, ‘Before the High Court – the massage, not the medium:\nDefamation, publication and the internet in Dow Jones & Co Inc. v\nGutnick’, (2002) 24 Sydney Law Review 263.\nStanding Committee of Attorneys-General (SCAG) Working Group of State\nand Territory Officers, Legislation and Policy Division of the NSW\nAttorney Generals Department, (2004), Proposal for Uniform Defamation\nLaws,\nwww.ag.gov.au/www/agd/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA26\n1 See Chapter 11.\n2  HCA 56. See Chapter 11.\n3  HCA 56, para 116. See also Chakravarti v Advertiser Newspapers\nLtd  HCA 37; (1998) 193 CLR 519, 575.\n4 Defamation Act 2005 (Qld) s26, Defamation Act 2005 (NSW) s26,\nDefamation Act 2005 (Vic) s26, Defamation Act 2005 (Tas) s26,\nDefamation Act 2005 (WA) s26; Defamation Act 2005 (SA) s24;\nDefamation Act 2006 (NT) s23; Civil Law (Wrongs) Act 2002 (ACT)\ns136.\n5 See Chapter 11.\n6  HCA 56.\n7  HCA 56, para 124.\n8 Standing Committee of Attorneys-General (SCAG) Working Group of State\nand Territory Officers, Legislation and Policy Division of the NSW\nAttorney Generals Department, (2004) Proposal for Uniform\nDefamation Laws.\n9 Recommendation 12: The common law defence of innocent dissemination\nshould apply, with careful drafting to ensure that the defence takes proper\naccount of modern means of mass communication and the problems\nassociated with its monitoring.\n10 Defamation Act 2005 (Qld) s32(3)(f)(i) and (ii); Defamation Act 2005\n(NSW) s32(3)(f)(i) and (ii); Defamation Act 2005 (Vic) s32(3)(f)(i) and\n(ii); Defamation Act 2005 (Tas) s32(3)(f)(i) and (ii); Defamation Act\n2005 (WA) s32(3)(f)(i) and (ii); Defamation Act 2005 (SA) s30(3)(f)(i)\nand (ii); Defamation Act 2006 (NT) s29(3)(f)(i) and (ii); Civil Law\n(Wrongs) Act 2002 (ACT) s139C(3)(f)(i) and (ii).\n11 (1993) Unreported decision of the Supreme Court of Western Australia,\ncase 1994 of 1993.\n12 See The Buddhist Society of Western Australia Inc. v Bristile Ltd \nWASCA 210.\n13 Defamation Act 2005 (Qld) Part 3; Defamation Act 2005 (NSW) Part 3;\n295\nDefamation Act 2005 (Vic) Part 3; Defamation Act 2005 (Tas) Part 3;\nDefamation Act 2005 (WA) Part 3; Defamation Act 2005 (SA) Part 3;\nDefamation Act 2006 (NT) Part 3; Civil Law (Wrongs) Act 2002 (ACT)\nPart 9.3.\n14 See McLean v David Syme & Co. Limited (1970) 72 SR (NSW) 513.\n15 Defamation Act 2005 (Qld) s32; Defamation Act 2005 (NSW) s32;\nDefamation Act 2005 (Vic) s32; Defamation Act 2005 (Tas) s32;\nDefamation Act 2005 (WA) s32; Defamation Act 2005 (SA) s30;\nDefamation Act 2006 (NT) s29; Civil Law (Wrongs) Act 2002 (ACT)\ns139C; Defamation Act (NZ) s8.\n16 1995 WL 323710 (NY Sup Ct 1995).\n17 Ken S Myers\n, ‘Wikimmunity: Fitting the Communications Decency Act to Wikipedia’,\n(2006) 20 Harvard Journal of Law and Technology 163.\n18 (2006) 40 Cal 4th 33; 146 P. 3d 510.\n19 776 F. Supp. 135 (SD NY 1991).\n20 776 F. Supp. 135 (SD NY 1991), 136.\n21 Ibid.\n22 706 NYS 2d 835.\n23  210 CLR 575 at 602–603.\n24 Limitation Act 1969 (NSW) ss14B and 56A; Limitation of Actions Act\n1974 (Qld) ss10AA and 32A; Limitation of Actions Act 1936 (SA)\ns37(1) and (2); Defamation Act 2005 (Tas) s20A(1) and (2); Limitation\nof Actions Act 1958 (Vic) s23B; Limitation Act 2005 (WA) ss15 and\n40(3); Limitation Act 2005 (NT) ss12(2)(b) and 44A(2); Limitation Act\n1985 (ACT) s21B(1) and (2). Limitation Act 1950 (NZ) s4 provides for\na two year limitation period with a maximum extension to four years.\n25 Debra Cohen\n, ‘The single publication rule: One action, not one law’, (1966) 62 Brooklyn\nLaw Review 921, 924. See Chapter 11.\n26  210 CLR 575.\n27  210 CLR 575, paras 33–34.\n28 706 NYS 2d 835.\n29 Idaho Single Publication Act s6-702.\n30  UKHL 28.\n31  UKHL 28.\n296\n32  HCA 56, para 124.\n33  HCA 56, para 125.\n34 See Australian Broadcasting Corporation v Waterhouse (1991) 25\nNSWLR 519 at 537. See also Australian Law Reform Commission,\nUnfair Publication: Defamation and Privacy, Report No. 11, (1979),\n60–61, para; Australian Law Reform Commission, Choice of Law,\nReport No. 58, (1992), 57 paras 6.53–54.\n35  3 Hare 100, 115; 67 ER 313, 319.\n36 Defamation Act 2005 (Qld) s8; Defamation Act 2005 (NSW) s8;\nDefamation Act 2005 (Vic) s8; Defamation Act 2005 (Tas) s8;\nDefamation Act 2005 (WA) s8; Defamation Act 2005 (SA) s8;\nDefamation Act 2006 (NT) s7; Civil Law (Wrongs) Act 2002 (ACT)\ns120; Defamation Act (NZ) s7 is a similar provision.\n37 See para 131ff. See also Chapter 11.\n38  210 CLR 575. For further details see Chapter 11.\n39 Oceanic Sun Line Special Shipping Co. v Fay (1988) 62 ALJR 389; Voth\nv Manildra Flour Mills Pty Ltd (1990) 65 ALJR 83; Henry v Henry\n(1996) 185 CLR 571. The High Court reaffirmed its position in Regie\nNational des Usines Renault SA v Zhang (2002) 76 ALJR 551: ‘[a]n\nAustralian court cannot be a clearly inappropriate forum merely by virtue\nof the circumstance that the choice of law rules which apply in the forum\nrequire its courts to apply foreign law as the lex causae’. See David\nRolph, ‘Before the High Court – The massage, not the medium:\nDefamation, publication and the internet in Dow Jones & Co. Inc. v\nGutnick’, (2002) 24 Sydney Law Review 263.\n40  AC 460, 478, Lord Goff of Chieveley.\n41 Dow Jones and Co. Inc. v Gutnick  210 CLR 575 at 590. See also\nMacquarie Bank v Berg  NSWSC 526.\n297\n\nPurchase answer to see full\nattachment
APA paper format
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In the APA format, papers are typically double-spaced and written in 12-point Times New Roman font. The margins should be 1 inch on all sides, and the text should be left-aligned. Headings are used to organize the paper into sections, with different levels of headings used to indicate the hierarchy of information.
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