By Jere M. Webb
9/7/2005

But what if you make your communication on the Internet?  Before you hit the "Enter" button on that Internet posting or publication, you might want to pause to reflect on the fact that your publication will be available worldwide and that many countries have stringent laws against false or defamatory publications.

A good example of this pitfall is the decision issued by the High Court of Australia in Dow Jones & Co. v. Gutnik.  You can read the opinion at www.4law.co.il/582.htm.  The court held that Dow Jones could be sued in Victoria, Australia based on content that appeared in the online version of a Barron’s magazine article.  The article, titled "Unholy Gains," made several disparaging references to the respondent, Joseph Gutnik, who lives in Victoria.

The principal issue in the case was whether publication could be deemed to have occurred in Victoria.  Dow Jones argued that the articles published in Barron’s Online were published in South Brunswick, New Jersey when they became available on servers located there, and that if someone decided to access those servers and download the articles to a computer in a foreign country, that did not constitute publication in a foreign country.  Dow Jones tried to rely on a distinction between the passive role of a Web publisher and the more active role of a newspaper publisher or a radio or television broadcaster.  It also argued for the desirability of a single law governing publication of material on the World Wide Web.  The High Court of Australia rejected these arguments and found that the article had been published in Victoria.  This decision was the first by a nation’s top court dealing with jurisdiction over international Internet defamation.  The case, however, settled in late 2004 following out-of-court mediation.

The lesson of this case is that material published on the Internet can result in the unanticipated application of foreign laws and the possibility of being hauled into court in distant locations.  You may take some comfort in the fact that, three days after the decision by the High Court of Australia, the U.S. Court of Appeals for the Fourth Circuit issued its opinion in a similar case and held that two Connecticut newspapers that had published articles accessible electronically via their websites, which articles allegedly defamed a Virginia prison warden, could not be sued in a Virginia court.  The court said, "[W]e hold that a court in Virginia cannot constitutionally exercise jurisdiction over the Connecticut-based newspaper defendants because they did not manifest an intent to aim their websites or the posted articles at a Virginia audience."  The case is Young v. New Haven Advocate, 315 F3d 256, 258 59 (4th Cir 2002).  The U.S. Supreme Court declined to review the case and has not yet ruled on the limits of jurisdiction regarding Internet defamation.

Even more recently, the U.S. Court of Appeals for the Fifth Circuit held that Columbia University and a Harvard professor who made an allegedly defamatory posting on a Columbia-maintained Web-based bulletin board, could not be sued in Texas by an FBI agent who resides there.  The article was about the Reagan administration’s alleged complicity in the bombing of Pan Am flight 103 over Lockerbie, Scotland.  The court found that the article did not "'manifest an intent to target and focus on'" Texas residents and therefore could not support personal jurisdiction over the defendants in Texas.  The opinion can be found at Revell v. Lidov, 317 F3d 467, 475 (5th Cir 2002) (citation and emphasis omitted).

The bottom line is that although the United States has constitutional protections that both protect speech and protect against being hauled into court in distant locales, you cannot rely on such protections being available under the laws of other countries.