Dow Jones V Gutnick Essay Sample free essay sample

The instance of Dow Jones A ; Company Inc V Gutnick ( 2002 ) 210 CLR 575. [ 2002 ] HCA 56 raised the legal rule of calumny and its application when committed over the cyberspace. In this case. an article published on 30 October 2000 in a hebdomadal fiscal magazine. a magazine which in bend was published by Dow Jones A ; Company Inc ( ‘Dow Jones’ ) . The article. entitled ‘Unholy Gains’ alleged that Joseph Gutnick ( ‘Gutnick’ ) was connected to a captive money launderer and revenue enhancement evader and was involved in these activities himself. The article was accompanied by a big exposure of Gutnick. The edition of the magazine sold 305. 363 transcripts and 550. 000 endorsers accessed the article online. with 1. 700 of the online endorsers utilizing an Australian recognition card to pay for the article. Gutnick brought an action against Dow Jones claiming that the article was calumniatory. The initial claim was made in Victoria. as this is wh ere the bulk of Gutnick’s societal and concern life was and where the effects of the alleged defamatory stuff would be most felt. Dow Jones refuted this claim and sought to hold the instance heard in the United States. As Freedom of Speech is a cardinal right of all United States citizens. Dow Jones were eager to take advantage of this cardinal right and hedge the right of protection of repute the Australia Courts are so eager to continue. The instance was held. ab initio. in the Supreme Court of Victoria. At the beginning of the test. Dow Jones sought to hold the proceedings stayed or for good set aside due to an evident breach of order 701 ( I ) . being that service of the claim was non appropriate as the calumny was non committed in Australia and. based on order 701 ( J ) . there was no grounds of harm suffered within the legal power. which Dow Jones believed should be where the article was published. originating from publication of the article in New Jersey. Dow Jones argued that the instance should. in fact. be heard in New Jersey as this was where the waiter was located to which the article had been uploaded and. as such. was the articles topographic point of publication. Dow Jones’ application for an order that service be stayed or for good set aside was dismissed as the test justice. Hedigan J. stated that the civil wrong occurred when contents of the publication were comprehended by the reader. which in this instance occurred in Victoria. and non where the article was published. being in New Jersey. Following this. Dow Jones appealed the determination of Hedigan J. to the Court of Appeal of Victoria. who upheld the determination of the lower tribunal. Dow Jones was so granted particular leave to take the entreaty to the High Court of Australia. An International ComparisonIn passing down their determination. Glesson CJ. McHugh. Gummow and Hayne JJ considered three issues viz. . ( 1 ) where had the stuff the Gutnick complained about been published. ( 2 ) whether the stuff had been published in Victoria and ( 3 ) whether Victoria was the appropriate legal power for the instance to be heard. From these inquiries. it is evident the issue of legal power was an of import legal inquiry that needed to be resolved. In add-on. Hedigan J. in the initial hearing. gave wider consideration to the issue of internet legal power and its application to calumny. He considered three ( 3 ) other instances on legal power. some of which are considered below. These international instances. together with the Court’s attack in the Dow Jones Case is that if a complainant can demo that the stuff. which is capable to the calumny claim. was read by at least one individual in the relevant legal power. a claim for calumny in that legal power is about automatic. Lee Teck Chee V Merrill Lynch International Bank Ltd [ 1998 ] 4 C. L. J. 188 ( Malayan High Court ) This instance involved the publication of an article in an on-line newspaper based in Singapore. The focal point of this finding was based on existent entree to the publication and this assisted the tribunal in finding whether they had legal power or non. The Court held that a publication made on a newspaper web site in Singapore could merely be considered to hold been published all around Malaysia if there was grounds that an independent party within Malaysia had accessed the publication and read it and as such the tribunal exercised legal power. Kitakufe V Oloya Ltd ( 1998 ) 67 O. T. C. 315 ( Ontario Court of Justice ) This instance involved a newspaper article published both in difficult transcript in Uganda and online. Both complainant and suspect were of African-Canadian descent. The Court held that the topographic point where the calumny occurred. and hence the subsequent legal power where any claim could be heard. refering on-line publications is. in fact. the legal power where the publication is accessible and available to be read by any 3rd party users. It was for this really ground the Court held that the Ontario Court was the appropriate legal power for the instance to be heard as this was where the most harm was suffered by the complainant. This place was reaffirmed in the Italian instance of Investors Group Inc v Hudson [ 1999 ] Recueil en Responsabilite et Assirance 185. Calder V Jones ( 1984 ) 465 US 783 This instance involved a celebrated entertainer who made a claim for calumny against the National Enquirer for an article published in Florida and circulated nationally. At the clip the article was published the complainant resided and worked in California. The tribunal determined that ‘jurisdiction may be exercised over a foreign suspect who directs his or her calumniatory message at the forum and the complainant suffers harm there’ This pre-internet instance has become the foundation for the US Courts consideration of legal power. Further consideration to the US attack to legal power will be discussed below. A affair of forum.The instance of Dow Jones raises two issues viz. . publication of stuff on the cyberspace and legal power. In Dow Jones. the two are interconnected as the finding of the topographic point of publication led to an appraisal of the appropriate legal power in which the instance should be heard. The impact the Dow Jones Case has on on-line publications is great. Whilst it is evident that the point made by Dow Jones that in order for a publishing house to hold certainty. the ‘single publication’ regulation should be adopted so that a commercial ailment can merely be brought one time in the legal power that is the topographic point of upload of a publication as ‘a defamatory statement is made available on a web site. legal power may lie in all the states where entree to that web site can be obtained’ . Iin sing the above. one must besides take into history the surrogate position in that the planetary growing of the cyberspace should non be used a s a shield for on-line publishing houses to avoid the basic rule that an person has the right to keep their repute in their place legal power. The fact that the cyberspace is planetary does non and should non intend that publishing houses can conceal behind this globalization as a manner of avoiding action for calumniatory publications. This will necessitate peculiar consideration for states such as the US. with its broad application of free address. in regard of calumny instances and whether they will implement opinions of international legal powers. A claim of calumny is contrast in that it seeks to protect the repute of persons and administrations nevertheless this would look to suppress the right to freedom of address. As celebrated above freedom of address is a cardinal right embodied in the US through its Constitution. As such. the US is less rigorous on verbal calumny that most other legal powers. Whilst it is good to hold clear and concise regulations in Australia about when and where a calumny instance affecting a publication is heard in Australia which amendss an Australian repute. where those publications are made outside of Australia. if a opinion can non be enforced in legal powers such as the US. the Australian regulations will make little to advance justness in the eyes of complainant Australians who suffer such international defamatory Acts of the Apostless. A farther complication to the manner the US considered affairs of legal power is the Due Process Clause of the 14th Amendment in the Constitution. As is the instance in Australia. the get downing point for the US in finding affairs of legal powers starts with a party’s presence in the forum. The US Courts so determine whether the cause of action asserts general legal power. where a party lives in the relevant legal power or carries out a big figure of activities at that place. or specific legal power where there must be a high sum of contact between relevant forum and a suspect who does non shack in the legal power. Other determinations in the US have reflected a different attack to legal power in finding that ‘a complainant would necessitate to turn out than an out of province defendant’s cyberspace activity was expressly targeted at. or directed to. the forum province in order to set up legal power in the tribunals of that state’ . The instance of Stanley K. Young v New Haven Advocate ( 2002 ) 315 F. 3d 256 supported this individual publication attack which focuses on the topographic point of upload of a publication in finding legal power by finding that the on-line newspaper had intended to direct the publication at a specific audience ( in this instance Connecticut ) being the same topographic point as the topographic point of upload of the article. even though the article was available in other legal powers given its on-line nature. When sing affairs of legal power and forum and whether the traditional regulations of legal power can be applied to online calumny. the Australian trial of forum non conveniens. where a tribunal is persuaded that another forum or legal power is better placed to hear a affair. is in contrast to the US Courts who look at the possible unfairness against a party holding to support a instance in a foreign legal power. In order to fulfill the forum non conveniens test one must fulfill themselves whether the legal power that is under onslaught is ‘a clearly inappropriate forum’ . In Dow Jones. Dow Jones themselves argued that supporting a claim of calumny in Australia would be burdensome due to the fact that naming informants. bring forthing paperss and accessing stuff would be that much more hard. In support of this. Dow Jones suggested that Gutnick would non be faced with these troubles as the grounds would be readily available in the US. Ultimately. the forum non conveniens trial was rejected by Hedigan J who stated ‘the failing in the statements [ of Dow Jones ] is that the aspect sued on by Mr Gutnick is indelibly Victorian. connected with no other topographic point and that nay certification or grounds refering the affair will wholly be found in Victoria’ . A figure of US instances sing legal power have been determined based on the defendant’s operation of a web site that was deemed accessible in the relevant forum and which caused injury to the complainant in such forum. This US attack is consistent with the Australia attack which revolves around the topographic point of entree of an on-line publication. Alternatively. some US Courts have rejected the above position on legal power in favor of an attack where more grounds is required that a suspect who publishes material online must hold published it with the purpose to aim people who reside in a specific forum for the stuff posted online to be calumniatory. DecisionThe opinion given by Hedigan J has set a case in point for on-line publications. Any on-line publishing house must now be cognizant that they might non merely be capable to the calumny Torahs of the legal power where the physical computing machine on which the publication was uploaded but besides to the Torahs of other states where the publication can be accessed. It is evident from reappraisal of the assorted instances that the topographic point of publication is at the very bosom of finding a class of action for calumny. Therefore. publication in the legal power of the tribunal is in fact irrelevant. By the really significance of calumny on the cyberspace. stuff can merely be considered published at the topographic point where it is read. heard or seen as opposed to the topographic point from where the stuff originates. To spread out this definition. a separate publication and new cause of action occurs each clip the stuff is read. heard or seen which furnished the footing for legal power to all topographic points in the universe because of modern twenty-four hours publication to a planetary audience through the cyberspace. It is evident that with the growing of the cyberspace comes growing of cyberspace publications and with such growing differences sing legal power for on-line calumny will go more common topographic point. It is for this really ground that it is imperative that legal powers form a concrete footing in how to find affairs of legal power. It appears that whilst Dow Jones has helped Australia develop a common pattern in finding legal power based on the topographic point of injury cause and non the topographic point of publication. the constitutional right of free address in the US is invariably combating the right to protect 1s repute. As much of the population of the US believes freedom of address to be the most cardinal of all constitutional rights this position does non adequately represent the beliefs of an of all time increasing multicultural cyberspace user base. Alternatively. some may reason that as the Torahs regulating calumny in Australia differ from province to province this deficiency of uniformity has besides spread internationally. Given that the US appears to hold the least rigorous Torahs on legal power given their application of freedom of address it is my position that Australia has one of most appropriate and effectual trials for finding legal power and 1 that will stand the trial of clip as the usage of the cyberspace grows. specifically in footings of on-line publications. In bend Australia is now favoring towards exerting legal power in cyberspace based instances. The instance of Dow Jones has set a precedent nationwide on how to use legal power when covering with on-line publications. Therefore. while the impression of free address has non disappeared everlastingly. the power of the cyberspace and a simple Google hunt from anyplace in the universe should do anyone believe twice approximately posting what may be considered a harmless article from the other side of the universe. If there is one piece of advice a reader can take from this it would be to be wary. The cyberspace can be a unsafe forum when used unsuitably. Once something is published it is stored in the universe broad web for life as on the cyberspace. ‘a calumniatory statement can be outright available throughout the world’ .