Fwd: Australian ruling is raising worries

From: Wade Smith (wade_smith@harvard.edu)
Date: Mon 16 Dec 2002 - 16:05:32 GMT

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    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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