The most significant development in Australia on the question of jurisdiction in cyberspace was the High Court decision in Dow Jones & Company Inc v Gutnick  HCA 56.
In early December, the High Court reaffirmed the earlier decision of the Supreme Court in the State of Victoria that a person in Victoria is entitled to bring an action for defamation in Victoria, in respect of the publication of an article on the Internet uploaded outside Australia. The decision has far reaching implications for internet publication, wherever the material is uploaded to the internet.
Dow Jones operated WSJ.com, a subscription news site on the internet. Printed editions of theWall Street Journal and Barron's online, published by Dow Jones were available to subscribers to WSJ.com. Articles in Barron’s Online were prepared in New York and uploaded into the Internet in New Jersey.
One issue of Barron's Online contained an article entitled "Unholy Gains" in which several references were made to Gutnick, who lives and carried on his business in Victoria. Gutnick argued that part of the article defamed him and brought an action in the Supreme Court of Victoria against Dow Jones for defamation claiming damages caused to his reputation in Victoria only.
In Australia, the tort of defamation depends on publication and therefore the fundamental question to be decided was to determine the place of publication of the alleged damaging article.
Dow Jones argued that the contents on its website, WSJ.com became available to its subscribers at its servers in New York and that therefore publication was in New York and not in Victoria, Australia.
On behalf of Dow Jones, it was argued that since the alleged article was uploaded in the U.S., the courts in Victoria should not have jurisdiction over the publication of the article. However the High Court clearly distinguished between jurisdiction and applicable law. It was said that a court may have jurisdiction but it may equally be bound by the applicable rules of a foreign jurisdiction.
As compared to the issue of "choice of law" the matter of
"forum non conveniens" did not figure prominently on behalf of Dow Jones".
A group of 18 businesses and organisations were allowed to intervene in the proceedings before the High Court. They included Amazon.com, Inc; Associate Press; Cable News Network LP, LLLP; Guardian Newspapers Ltd; The New York Times Company; News Limited; Time, Inc; Tribune Company; The Washington Post Company; Yahoo! Inc and John Fairfax Holdings Ltd. Their position was that publication occurs at the point at which there is a last opportunity for the publisher to take steps to exercise control over the publication. Accordingly, they argued that the place of publication was where the article was uploaded.
The High Court highlighted the balancing of considerations in cases of defamation:
"It is necessary to begin by the obvious point that the law of defamation seeks to strike a balance between, on the one hand, society’s interest in freedom of speech and the free exchange of information and ideas (whether or not that information and those ideas find favour with any particular part of society) and, on the other hand, an individual’s interest in maintaining his or her reputation in society free from unwarranted slur or damage."
How this balance is to be achieved is uncertain at this stage. The court did not think that the legislators will make any considerable impact:
"To wait for legislatures or multilateral international agreement to provide solutions to the legal problems presented by the Internet would abandon those problems to "agonizingly slow" processes of lawmaking. Accordingly, courts throughout the world are urged to address the immediate need to piece together gradually a coherent transnational law appropriate to the "digital millennium".
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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