From: Wade Smith (wade_smith@harvard.edu)
Date: Mon 16 Dec 2002 - 16:05:32 GMT
Australian ruling is raising worries
By Mark Jurkowitz, Globe Staff, 12/16/2002
http://www.boston.com/dailyglobe2/350/business/Australian_ruling_is_raising_worriesP.
shtml
A number of concerned First Amendment advocates say a landmark
libel decision by the Australian High Court may have the effect
of erecting a fence on the borderless information frontier
opened up by Internet technology.
The Dec. 10 ruling concluded that an Australian businessman,
Joseph Gutnick, could sue Dow Jones for defamation in Australia
based on a Barron's magazine story that emanated from the
company's computer servers in New Jersey. Although, as attorney
Harvey Silverglate explains, defamation cases have traditionally
been brought ''in the jurisdiction where the speech is uttered
or published or where you targeted it,'' the ruling effectively
expanded that jurisdiction in the online world to where a story
can be downloaded.
The case involves a ''United States media publication which is
really focused on United States markets and United States
investors'' and ''a journalist who operated completely out of
the United States,'' says Stuart Karle, a Dow Jones associate
general counsel. ''This dramatically changes how you can
communicate within this country.''
Several observers expressed the fear that the ruling would
subject American journalism to legal challenges in countries
with a far more restrictive view of the First Amendment - or
else simply act as a deterrent to publication for that very
reason.
''We're not quite clear this is as much a borderless medium as
we thought it was going to be,'' warns Jane Kirtley, professor
of media ethics and law at the University of Minnesota school of
journalism. ''This great medium that was going to be the freest
form of expression in the world suddenly gets reined in by these
old terrestrial laws.''
Despite its broad implications, the Barron's case is another in
a growing body of rulings that have been slowly defining - or
perhaps muddying - the legal identity of an information
technology that has exploded in the past decade, but is still
obviously evolving. The high court's decision alluded to that,
noting that ''it can scarcely be supposed that the full
potential of the Internet has yet been realized. The next phase
in the global distribution of information can not be predicted.''
Other cases in recent years have yielded other guideposts. In
another that tackled the geographic boundaries of online reach,
a French judge told Yahoo two years ago to block that nation's
Net users' access to a site auctioning off Nazi memorabilia.
In 1998, a judge ruled that America Online could not be a target
of White House aide Sidney Blumenthal's libel suit against
online gossip/journalist Matt Drudge, although it paid for the
right to distribute Drudge's work. Last year, the US Supreme
Court ruled that news organizations could not republish the work
of freelance journalists online without obtaining their
permission.
Also in 2001, a New York State Supreme Court dismissed a libel
suit against the Narco News Bulletin Web site, a ruling its
attorney said provided online journalism with the same First
Amendment protections enshrined in the pivotal 1964 New York
Times v. Sullivan case.
Lee Tien, senior staff attorney for the Electronic Frontier
Foundation, says that the repercussions of the Australia case -
which involved a major media company - may be felt more strongly
by the smaller online publishers.
''This is sort of a battle among elephants, these are very big
boys that are squaring off here,'' he says. ''In this case, the
major implications are for the mice ... the bloggers, the
independent media centers'' that don't have the resources to
even contemplate waging a libel defense. ''The process of
litigation itself has a chilling effect on speech.''
Civil libertarian Silverglate concurs, adding: ''The Internet
has the potential to undermine the ability of governments and
large corporations and anyone else interested in censoring. ...
The real question is whether the Internet's potential for
enlarging public discussion of important issues is going to be
able to overcome ... this variety of [legal] techniques.''
Mark Jurkowitz can be reached at jurkowitz@globe.com.
This story ran on page C1 of the Boston Globe on 12/16/2002.
© Copyright 2002 Globe Newspaper Company.
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