Dow Jones V Gutnick

Topics: Defamation, Jurisdiction, Forum non conveniens Pages: 7 (2433 words) Published: February 16, 2013
The case of Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, [2002] HCA 56 raised the legal principle of defamation and its application when committed over the internet. In this instance, an article published on 30 October 2000 in a weekly financial magazine, a magazine which in turn was published by Dow Jones & Company Inc (‘Dow Jones’). The article, entitled ‘Unholy Gains’ alleged that Joseph Gutnick (‘Gutnick’) was connected to a jailed money launderer and tax evader and was involved in these activities himself. The article was accompanied by a large photograph of Gutnick. The edition of the magazine sold 305,363 copies and 550,000 subscribers accessed the article online, with 1,700 of the online subscribers using an Australian credit card to pay for the article. Gutnick brought an action against Dow Jones claiming that the article was defamatory. The initial claim was made in Victoria, as this is where the majority of Gutnick’s social and business life was and where the consequences of the alleged defamatory material would be most felt. Dow Jones refuted this claim and sought to have the case heard in the United States. As Freedom of Speech is a fundamental right of all United States citizens, Dow Jones were eager to take advantage of this fundamental right and evade the right of protection of reputation the Australia Courts are so eager to uphold. The case was held, initially, in the Supreme Court of Victoria. At the commencement of the trial, Dow Jones sought to have the proceedings stayed or permanently set aside due to an apparent breach of order 701(i), being that service of the claim was not appropriate as the defamation was not committed in Australia and, based on order 701(j), there was no evidence of damage suffered within the jurisdiction, which Dow Jones believed should be where the article was published, arising from publication of the article in New Jersey. Dow Jones argued that the case should, in fact, be heard in New Jersey as this was where the server was located to which the article had been uploaded and, as such, was the articles place of publication. Dow Jones’ application for an order that service be stayed or permanently set aside was dismissed as the trial judge, Hedigan J, stated that the tort occurred when contents of the publication were comprehended by the reader, which in this case occurred in Victoria, and not where the article was published, being in New Jersey. Following this, Dow Jones appealed the decision of Hedigan J, to the Court of Appeal of Victoria, who upheld the decision of the lower court. Dow Jones was then granted special leave to take the appeal to the High Court of Australia.

An International Comparison
In handing down their decision, Glesson CJ, McHugh, Gummow and Hayne JJ considered three issues namely, (1) where had the material the Gutnick complained about been published, (2) whether the material had been published in Victoria and (3) whether Victoria was the appropriate jurisdiction for the case to be heard. From these questions, it is apparent the issue of jurisdiction was an important legal question that needed to be resolved. In addition, Hedigan J, in the initial hearing, gave wider consideration to the issue of internet jurisdiction and its application to defamation. He considered three (3) other cases on jurisdiction, some of which are considered below. These international cases, together with the Court's approach in the Dow Jones Case is that if a plaintiff can show that the material, which is subject to the defamation claim, was read by at least one person in the relevant jurisdiction, a claim for defamation in that jurisdiction is almost automatic. Lee Teck Chee v Merrill Lynch International Bank Ltd [1998] 4 C.L.J. 188 (Malayan High Court) This case involved the publication of an article in an online newspaper based in Singapore. The focus of this determination was based on actual access to the publication and this assisted...
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