Dow Jones & Co. Inc. v Gutnick

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Case history
Dow Jones & Co. Inc. v Gutnick

High Court of Australia
Full case name	Dow Jones & Company Inc. v Gutnick, Joseph
Date decided	December 10, 2002
Citations	[2002] HCA 56
Judges sitting	Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ
Prior actions:	Appeal from Supreme Court of Victoria
Subsequent actions:	none
Case opinions
(7:0) Existing principles of defamation law are that legal proceedings should be undertaken in the place where the communication is received, not where the communication is sent from. This applies equally to internet communications, despite the new nature of the technology. (per Gleeson CJ, McHugh, Gummow & Hayne JJ; Gaudron J concurring; Kirby J & Callinan J agreeing in separate judgments) (7:0) In this case, involving information published on the Internet in the United States and read in the State of Victoria, Australia, the suitable jurisdiction for a court action is Victoria. (per Gleeson CJ, McHugh, Gummow & Hayne JJ; Gaudron J concurring; Kirby J & Callinan J agreeing in separate judgments)

Dow Jones & Co. Inc. v Gutnick was an Internet defamation case heard in the High Court of Australia, decided on December 10, 2002. The October 28, 2000 edition of Barron's Online, published by Dow Jones, contained an article entitled "Unholy Gains" in which several references were made to the respondent, Joseph Gutnick. Gutnick contended that part of the article defamed him. A key issue was whether suit could be brought in Australia.

[edit] Facts of this Case

In court it was proven that only five copies of the Barron's print edition were sent from New Jersey to be circulated in Australia. The internet version of the magazine had 550,000 international subscribers and 1700 had Australian-based credit cards.

Geoffrey Robertson QC argued for the publisher Dow Jones, as to whether it was considered to be "published from" where it was uploaded in New Jersey or "published into" where it downloaded by subscribers in Victoria, Australia. The argument centered around publication and jurisdiction.

[edit] Decision

In a unanimous decision, all seven High Court justices decided that Gutnick had the right to sue for defamation at his primary residence and the place he was best known. Victoria was considered the place where damage to his reputation occurred. The High Court decided that defamation did not occur at the time of publishing, but as soon as a third party read the publication and thought less of the individual who was defamed.

The High Court's ruling effectively allows defamation plaintiffs in Australia to sue for defamation on the internet against any defendant irrespective of their location. "If people wish to do business in, or indeed travel to, or live in, or utilize the infrastructure of different countries, they can hardly expect to be absolved from compliance with the laws of those countries. The fact that publication might occur everywhere does not mean that it occurs nowhere." (per Callinan J at para 186)

Equally, however, the majority of the Court (Gleeson CJ, McHugh, Gummow and Hayne JJ handing down a joint decision) stated that they disagreed that this would cause open-slather defamation actions in Australia: (at para 54 of the decision)

“

…the spectre which Dow Jones sought to conjure up in the present appeal, of a publisher forced to consider every article it publishes on the World Wide Web against the defamation laws of every country from Afghanistan to Zimbabwe is seen to be unreal when it is recalled that in all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort.

”

The case was highly controversial and the subject of much commentary from legal analysts, particularly in the United States.

On November 15, 2004, Dow Jones settled the case, agreeing to pay Gutnick some $440,000 in fees and damages.^{[citation needed]}