|High Court Rules Australia
Has Jurisdiction Over Dow Jones Based on Web Publication
|12/10. The High
Court of Australia
opinion in Dow
Jones v. Gutnick, a case involving
three procedural issues (jurisdiction, choice of law, and convenient forum) in a
tort action brought in Australia for an allegedly defamatory news story
published on the Internet by Dow Jones, a U.S. publisher. The Court held that
because of publication on the Internet, the Australian
courts have jurisdiction, that Australian law applies, and that the case should
proceed in the trial court in the Australian state of Victoria.
Dow Jones publishes the Wall Street Journal and Barrons, both
in paper, and on the Internet. Dow Jones is incorporated in the state of
Delaware, and is based in New York City in the state of New York. The web servers
containing Barrons news articles are located in the state of New Jersey.
Joseph Gutnick resides in the town of Melbourne, in the state of Victoria, in
the nation of Australia.
Barrons ran a news article titled "Unholy Gains" that referenced
Gutnick. Gutnick filed a complaint
in the Supreme Court of Victoria against Dow Jones. He alleges that he has a
reputation, and that Dow Jones has defamed him. He further seeks monetary damages.
Dow Jones entered a special appearance for the purpose of contesting the
jurisdiction of the Victoria court. The trial court (Supreme Court of Victoria) ruled
that publication of the allegedly defamatory statements occurred in the
Australian state of Victoria, on the basis that it could be downloaded on the
Internet by web users in Victoria.
Dow Jones appealed to the Court of Appeal of Victoria, which "refused leave
to appeal". Dow Jones then brought the present appeal, to the High Court of Australia.
The High Court dismissed Dow Jones' appeal and issued a lengthy opinion.
The High Court wrote in its opinion that "The principal issue debated in the
appeal to this Court was where was the
material of which Mr Gutnick complained published? Was it published in Victoria?
The answer to these questions was said to affect, even determine, whether
proceedings in the Supreme Court of Victoria should, as Dow Jones contended, be
stayed on the ground that that Court was a clearly inappropriate forum for
determination of the action." It answered that publication occurred in Victoria.
The Court elaborated that "defamation is to be located at the place where the
damage to reputation
occurs. ... In the case of material on the World Wide Web, it is not available
in comprehensible form until downloaded on to the computer of a person who has
used a web browser to pull the material from the web server. It is where that
person downloads the material that the damage to reputation may be done.
Ordinarily then, that will be the place where the tort of defamation is
And hence, since the alleged tort occurred in Victoria, the courts of
Victoria have jurisdiction to hear the case. Moreover, the law of Victoria is
applicable. Finally, the Court also rejected the argument that the U.S. would
provide a more convenient forum. The High Court did not address the merits of the defamation claim.
The case will now proceed on the merits in the Australian state of Victoria.
The Court noted that Dow Jones raised the "spectre" 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", but
concluded that this the point is without merit.
As a consequence of this ruling Dow Jones will have to defend against a
defamation action in Australia. Others who publish on the Internet could also be
subjected to defamation lawsuits in Australia. Moreover, if the courts of other
nations were to adopt the same analysis as the Australia High Court, any
Internet publisher anywhere in the world could be sued in any court anywhere in
There are, however, some ameliorating aspects of the opinion. First, it does
not permit unlimited forum shopping. It permits a person to bring a defamation
action where that person has a reputation. In the present case, Gutnick lives
in, and is known in, Victoria, Australia. Second, there is the matter of
enforcement of judgments. A judgment of a foreign nation may be enforceable in
that nation. Assets of the publisher within that nation may be seized to satisfy
a monetary judgment. Further publication may be enjoined. However, the foreign court
will likely be powerless to
enjoin further publication on web servers located within the U.S., or to seize
assets of the publisher within the U.S. If Gutnick wants to actually recover money
beyond the value of Dow Jones' assets in Australia, or to obtain meaningful injunctive relief,
he would have to bring suit within the U.S.
Seven justices participated. Four joined in the majority opinion. A review of
the citations in the opinion of the Court reveals that most of the cases relied upon as
precedent precede the World Wide Web. Indeed, some date from the 19th Century.
The Court rejected the notion that the novel nature of the Internet should change the
Court's application of long standing principles of the laws of defamation,
jurisdiction, and choice of law. It simply extended and reformulated
pre-existing legal principles.
However, Justice Kirby wrote a lengthy concurring opinion. He concurred in
the result, but suggested that the current laws need to be re-examined. Or, as he put
it, "When a radically new situation is presented to the law it is sometimes
necessary to think outside the square."
He continued that "The genius of the common law derives from its capacity to
adapt the principles of past decisions, by analogical reasoning, to the
resolution of entirely new and unforeseen problems. When the new problem is as
novel, complex and global as that presented by the Internet in this appeal, a
greater sense of legal imagination may be required than is ordinarily called
for." He suggested that this may be the case for tax law and commercial
transactions law, in addition to defamation law.
|People and Appointments
|12/9. President Bush announced his intention to nominate John Snow to be
Secretary of the Treasury. See,
House release and
remarks by Bush at a White House event announcing the nomination.
Charles Grassley (R-IA), who will be reinstated as Chairman of the
Senate Finance Committee in
January, stated in a release that "From what I know, he has several interesting
attributes. One is his
extensive business experience. We need a Treasury secretary who understands job
creation. Another is his earlier comments about cleaning up corporate
wrongdoing. I agree that restoring confidence in corporations is a key part of
rejuvenating economic growth." Sen. Grassley also wrote about outgoing Secretary
Paul O'Neill in a second release. "I worked very closely with Paul O'Neill to
get the largest tax cut in a generation passed through Congress. Mr. O'Neill
deserves a lot of credit for his work on the tax relief package. I enjoyed Paul
O'Neill's candor about everything. More of his unreserved, honesty is needed
inside the beltway. Paul O'Neill serves as an example of unselfish service for
the good of the American people that more of corporate America should follow."
12/9. Verizon announced that Daniel Whelan, President of Verizon
Pennsylvania, will retire on December 31. James O'Rourke, who is
currently regional sales vice president for major metropolitan areas in
Verizon's Consumer Sales and Service division, will succeed Whelan, effective
January 1, 2003. See,
12/9. Microsoft hired Ken DiPietro to be corporate vice president of
human resources. He will report to CEO Steve Ballmer. He previously was vice
president of human resources for the Americas at Dell. See,
12/9. The World Trade Organization's (WTO)
Appellate Body issued its
[78 pages in PDF] titled "United States -- Countervailing Measures Concerning
Certain Products from the European Communities". The U.S. imposed tariffs, or countervailing duties, on certain steel product imports. Various
European nations complained to the WTO. The WTO established a Panel to consider
the complaints. The Panel concluded that the relevant U.S. legislation is inconsistent with the Agreement on Subsidies and Countervailing
Measures. The Appellate Body's report reverses this conclusion. However, the
Appellate Body upheld the Panel's finding that the U.S. acted inconsistently
with that Agreement by imposing and maintaining countervailing measures on steel
products from privatized steel companies in the European Communities without
determining whether subsidies continued to exist.
12/9. The U.S.
Court of Appeals (5thCir) issued its
opinion [17 pages in
PDF] in Quick Technologies v. Sage
a trademark infringement and unfair competition case. The Appeals
|FCC Releases Local Phone Competition Data
|12/9. The Federal Communications Commission
(FCC) released a
[20 pages in PDF] titled "Local Telephone
Competition: Status as of June 30, 2002. The report states, among other things,
that "Total CLEC switched access lines increased by
10% during the first half of 2002, from 19.7 million to 21.6 million lines. By
comparison, total CLEC switched access lines increased by 14% during the
preceding six months, from 17.3 to 19.7 million lines." It also states that "About
11.4% of the 189 million total switched access lines were reported by CLECs,
compared to 9.0% a year earlier."
The report also provides data and trends on the
competitive local exchange carriers' (CLEC) use of their own facilities,
resale of services of other carriers, and use of unbundled network
The report also states that cable telephony
lines increased by 16% in the first half of 2002, and now account for about 1%
of all switched access lines.
The report also states that mobile wireless
telephone subscribers increased by 13% in the first half of 2002, to nearly 129
The report was prepared by the Industry Analysis and Technology
Division of the Wireline Competition Bureau.
This report is based on data collected from FCC form 477. However, this report
focuses on switched access lines. It does not contain data on either basic
Internet access or broadband lines.
|Tuesday, December 10
|10:45 AM -12:00 NOON. Assistant Secretary of the Treasury for
International Affairs Randal Quarles will speak as part of a panel titled "The
US-EU Agenda on Financial Services" at the European Institute's Trade and
Investment Seminar. Location: Swissotel -- The Watergate, Monticello Room,
2650 Virginia Ave., NW.
12:15 PM. The
FCBA's Cable Practice Committee will host a luncheon. The speaker will be
Marsha MacBride (FCC Chief of Staff). The price is $15. No walk-ins. For more
information, contact Lisa Cordell at 202 939-7900. RSVP to
email@example.com. Location: NCTA, 1724
Massachusetts Ave., NW.
Deadline to submit comments to the
National Telecommunications and Information Administration (NTIA)
regarding the wills, codicils, and testamentary trusts exception to the E-SIGN
Act. The Electronic Signatures in Global and National Commerce (E-SIGN) Act
provides, at Section 101, for the acceptance of electronic signatures in
interstate commerce, with certain enumerated exceptions. Section 103 of the
Act provides that "The provisions of section 101 shall not apply to ... a
State statute, regulation, or other rule of law governing the creation and
execution of wills, codicils, or testamentary trusts". The Act also requires
the NTIA to review, evaluate and report to Congress on each of the exceptions.
notice in the Federal Register, October 11, 2002, Vol. 67, No. 198, at
Pages 63379 - 63381.
|Wednesday, December 11
|9:30 AM. The
will hold a meeting. See,
Location: FCC, 445 12th Street, SW, Room TW-C05
(Commission Meeting Room).
10:00 - 11:30 AM. The
will hold a public forum to unveil the new concept designs for online filings.
Location: FCC, 12th Street, SW, Conference Room #1, 8th Floor.
10:20 - 10:45 AM.
The Department of Commerce
(DOC) will host an event for the signing of a Protocol Agreement between the
U.S. and the P.R. China pertaining to technology. Commerce Secretary Don Evans
and Chinese Minister of Science and Technology Xu Guanhua will sign the
agreement. The DOC stated in a
release that the
agreement "reaffirms each country’s continued commitment to strengthen the
on-going bilateral dialogue on technology, innovation and entrepreneurship."
The DOC also stated that "Future cooperation will focus on exchanging
perspectives on a range of issues related to technology innovation, standards,
technology transfer, financing research and development, and intellectual
property rights protection." For more information, contact Trevor Francis at
202 482-4883 or TFrancis@doc.gov.
Location: Secretary Evans' Conference Room, 5th Floor, DOC, 14th and
Constitution Ave., NW.
12:15 PM. The
FCBA's Mass Media Practice Committee will host a brown bag luncheon. The
speakers will be Brooks Boliek (Hollywood Reporter), Bridgette Greenberg
(Communications Daily), Doug Halonen (Electronic Media), Ted Hearn (Multichannel
News), Bill McConnell (Broadcasting and Cable), and Leslie Stimson (Radio
World). RSVP to Barry Umansky at 202 263-4128 or
Location: National Association of Broadcasters
(NAB), 1st Floor Conference Room, 1771 N Street, NW.
|Thursday, December 12
|9:00 AM. The President's
Council of Advisors on Science and Technology's (PCAST)
Subcommittee on Federal Research and Development Investment and its National
Benefits will hold an
open public forum on federal technology transfer mechanisms. See,
in the Federal Register. Location: RAND Washington Office, 1200 S. Hayes St., Arlington, VA,
Room 4204 (which is accessible from the Pentagon City metro stop).
12:00 NOON. The Cato Institute will
host a Capitol Hill briefing titled "Yellow Light on Total Information
Awareness". The scheduled speakers include Wayne Crews, Robert Levy,
and Charles Peña. See, notice
and online registration form. Location: 1539 Longworth House Office Building.
FCBA will host its annual Chairman's Dinner. See,
registration form [PDF].
Location: Washington Hilton and Towers.
Day one of a two day conference hosted by the Practicing Law Institute and the
FCBA titled "Telecommunications Policy and Regulation". At 12:15 PM
Martin will deliver a keynote address. Location: Reagan International
|Friday, December 13
|9:15 - 11:30 AM. The American Enterprise
Institute (AEI) will host a panel discussion titled "Intellectual
Property: A Positive Side for Developing Country Business?". The speakers
will be Michael Finger (AEI), Ron Layton (LightYears IP), and others.
Location: AEI, 12th floor, 1150 17th St., NW.
9:30 AM. The U.S. International Trade
Commission (USITC) will meet regarding the preliminary countervailing duty
investigation regarding DRAMs and DRAM Modules from Korea
(Investigation No. 701-TA-431). See,
notice published in the
Federal Register. Location: Main Hearing Room, ITC Building, 500 E Street, SW.
Day two of a two day conference hosted by the Practicing Law Institute and the
FCBA titled "Telecommunications Policy and Regulation". Location: Reagan
International Trade Center.
EXTENDED TO JANUARY 17. Deadline to
submit reply comments to the
in response to its
Notice of Proposed Rulemaking (NPRM) [15 pages in PDF] in its proceeding
titled "In the Matter of Digital Broadcast Copy Protection". This NPRM
proposes that the FCC promulgate a broadcast flag rule, and seeks comment on
this, and related questions. This is MB Docket No. 02-230. See also,
FCC release [PDF] and
Order [PDF] of October 11, 2002 extending deadlines.
|Monday, December 16
|The Supreme Court will be in recess from December 16 through January 12.
12:15 PM. The
FCBA's Professional Responsibility Committee will host a brown bag
luncheon. For more information, contact Frank Montero at 202 663-8936. RSVP to
firstname.lastname@example.org. Location: Arnold & Porter,
555 12th St., NW.
Deadline to submit comments to the National Institute of
Standards and Technology (NIST) regarding its draft publication
[90 pages in PDF] file titled "Security Metrics Guide for Information Technology
Systems". This is NIST Special Publication 800-55. It was written by
Marianne Swanson, Nadya Bartol, John Saboto, and Joan Hash in the NIST's
Information Technology Laboratory's Computer Security Division. Send comments to
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