Australian High Court sends warning to online publishers

The Australian High Court last week delivered a landmark judgment that could have implications for the UK regarding the flow of information over the internet


In the case of Gutnick v Dow Jones, the High Court upheld an earlier Victorian court judgment that Joseph Gutnick had the right to sue US-based publishing company Dow Jones in his home country.

Gutnick, advised by Schetzer Brott & Appel, has alleged that he was defamed in an October 2000 article published by Dow Jones’ New York-based Barron’s magazine, which was also available online. The case will now be heard in the Victoria Supreme Court.

Representing Dow Jones, Geoffrey Robertson QC of Doughty Street Chambers, instructed by Gilbert + Tobin, said exposing online publishers to the independent laws of over 180 countries would have a “chilling effect” on the free flow of information.

However, the trial judge concluded: “The law in defamation cases has been for centuries that publication takes place where and when the contents of the publication, oral or spoken, are seen and heard and comprehended by the reader or hearer.” This ruling was upheld by the High Court.

The court pointed out that in the case of the worldwide web, information is not available in comprehensible form until it has been downloaded. “It’s where that person downloads the material that the damage to reputation may be done,” ruled the High Court.

Head of Minter Ellison’s media practice Peter Bartlett said: “The Gutnick decision will have a significant impact on the UK. The decision relies on an old English decision – the Duke of Brunswick case in 1849 – to find that a publisher online can be sued in any country in the world where the publication is accessed. This has significant implications for online publishers, which includes basically any company.”