Free speech vs. Australia

The case at hand concerns an article in an October 2000 issue of Barron's that allegedly defamed Australian mining magnate Joseph Gutnick. Dow Jones, publisher of Barron's and The Wall Street Journal, contended that the case should be considered in the U.S., the place of publication and the location of the relevant Internet server. But the Aussie court decided we can be sued under the looser libel laws of Mr. Gutnick's home state of Victoria since the article was downloaded there. "What the appellant [Dow Jones] seeks to do, is to impose upon Australian residents for the purposes of this and many other cases, an American legal hegemony in relation to Internet publications," wrote one of the justices in a concurring opinion.

In our view, the judge has it precisely backward. It is His Honor who is exercising "legal hegemony" by saying we should have looked at Australian law.

U.S. libel law, consistent with the speech protections afforded by the First Amendment, makes it fairly difficult to win a libel suit. The burden of proof is on the plaintiff to show the allegedly defamatory statement is false; the statement must be the result of negligence in the case of a private figure, willful falsehood in the case of a public one. That's one reason so many Web sites advocating change in repressive regimes are located in the U.S.

In Britain and the Commonwealth countries, the reverse holds. It is up to the defendant to prove a statement is true, without reference to fault or intent. This Draconian standard has been used in recent years to shutter political publications such as Britain's LM magazine and saddle their editors with crushing personal debts. It has also resulted in a number of absurdities, such as the settlement Michael Jackson won from London's Mirror tabloid after it noted that the singer had been "hideously disfigured" by plastic surgery. How can you "prove" an aesthetic judgment?

We're not suggesting there's any reason to fear a sweeping Internet crackdown in Britain and Australia, which have otherwise strong democratic traditions. But the precedent asserted by the Australian High Court is certainly an invitation to forum shopping on a global scale and against defendants who lack the legal resources of a Dow Jones. It is also an invitation to further misbehavior by nasty regimes. Just this year Zimbabwe became the first country to criminally prosecute and punish a foreign journalist for an article merely downloaded in that country.

Nor are we much reassured by the court's assertion that there is jurisdiction only where a plaintiff has a reputation to defend. For famous people and large corporations, that could be just about anywhere.

We understand that this is an increasingly small world and that there's a certain amount of arbitrariness involved in limiting jurisdiction to place of publication, whether in print or on a Web server. But at least it's a clear rule of law. Requiring anyone who would publish on the Web to check the statutes of 190 different countries is not.

The Australian High Court has failed to sensibly advance the common law to account for the changes created by the Internet. Its precedent--if affirmed elsewhere--will prove a damper on free speech.

Copyright © 2002 Dow Jones & Company, Inc. All Rights Reserved.