Dow Jones & Co. Inc. v Gutnick
Encyclopedia
Dow Jones & Co. Inc. v Gutnick was an Internet
defamation case heard in the High Court of Australia
, decided
on 10 December 2002. The 28 October 2000 edition of Barron's Online
, published by Dow Jones, contained an article entitled "Unholy Gains" in which several references were made to the respondent, Joseph Gutnick
. Gutnick contended that part of the article defamed him. A key judgement was that the suit could be brought in Australia.
n courts described the details of the article in their written opinion on the case, as follows:
In court it was proven that only five copies of the Barron's print edition were sent from New Jersey
to be circulated in Australia. The Internet version of the magazine had 550,000 international subscribers and 1700 Australian-based credit cards.
Geoffrey Robertson
QC
argued for the publisher Dow Jones, as to whether it was considered to be "published from" where it was uploaded in New Jersey or "published into" where it downloaded by subscribers in Victoria, Australia. The argument centered around publication and jurisdiction.
justices decided that Gutnick had the right to sue for defamation at his primary residence and the place he was best known. Victoria was considered the place where damage to his reputation occurred. The High Court decided that defamation did not occur at the time of publishing, but as soon as a third party read the publication and thought less of the individual who was defamed.
Dow Jones was forced to admit in court that "there was no reason to believe Mr Gutnick was a customer of Mr Goldberg or had any criminal or improper relations with Mr Goldberg." (quote from an Australian Broadcasting Corporation story)
The High Court's ruling effectively allows defamation plaintiffs in Australia to sue for defamation on the internet
against any defendant irrespective of their location. "If people wish to do business in, or indeed travel to, or live in, or utilize the infrastructure of different countries, they can hardly expect to be absolved from compliance with the laws of those countries. The fact that publication might occur everywhere does not mean that it occurs nowhere." (per Callinan J at para 186)
Equally, however, the majority of the Court (Gleeson CJ, McHugh, Gummow and Hayne JJ handing down a joint decision) stated that they disagreed that this would cause open-slather defamation actions in Australia: (at para 54 of the decision)
The case was highly controversial and the subject of much commentary from legal analysts, particularly in the United States.
On 15 November 2004, Dow Jones settled the case, agreeing to pay Gutnick some $580,000 in fees and damages.
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
defamation case heard in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, decided
Judgment
A judgment , in a legal context, is synonymous with the formal decision made by a court following a lawsuit. At the same time the court may also make a range of court orders, such as imposing a sentence upon a guilty defendant in a criminal matter, or providing a remedy for the plaintiff in a civil...
on 10 December 2002. The 28 October 2000 edition of Barron's Online
Barron's Magazine
Barron's is an American weekly newspaper covering U.S. financial information, market developments, and relevant statistics. Each issue provides a wrap-up of the previous week's market activity, news reports, and an informative outlook on the week to come....
, published by Dow Jones, contained an article entitled "Unholy Gains" in which several references were made to the respondent, Joseph Gutnick
Joseph Gutnick
Joseph Isaac Gutnick is an Australian businessman and mining industry entrepreneur. He is also an ordained rabbi and is well known for his philanthropy in the Jewish world.-Business holdings:Among Gutnick's business holdings:...
. Gutnick contended that part of the article defamed him. A key judgement was that the suit could be brought in Australia.
Facts of this Case
The article in question was entitled Unholy Gains, by Bill Alpert, published in Barron's 2000 Oct 30. The AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n courts described the details of the article in their written opinion on the case, as follows:
"[The article] "states that some of his business dealings with religious charities raise "uncomfortable questions" . . . . The author then uses some language that the media have appropriated from the law courts, implying that a balanced trial with equal opportunity to participate by all concerned has taken place: that a " Barron'sinvestigation foundthat several charities traded heavily in stocks promoted by Gutnick." . . . (emphasis added) The article associates the respondent with Mr Nachum Goldberg who is apparently a convicted tax evader and another person awaiting trial for stock manipulation in New York. "
In court it was proven that only five copies of the Barron's print edition were sent from New Jersey
New Jersey
New Jersey is a state in the Northeastern and Middle Atlantic regions of the United States. , its population was 8,791,894. It is bordered on the north and east by the state of New York, on the southeast and south by the Atlantic Ocean, on the west by Pennsylvania and on the southwest by Delaware...
to be circulated in Australia. The Internet version of the magazine had 550,000 international subscribers and 1700 Australian-based credit cards.
Geoffrey Robertson
Geoffrey Robertson
Geoffrey Ronald Robertson QC is an Australian-born human rights lawyer, academic, author and broadcaster. He holds dual Australian and British citizenship....
QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
argued for the publisher Dow Jones, as to whether it was considered to be "published from" where it was uploaded in New Jersey or "published into" where it downloaded by subscribers in Victoria, Australia. The argument centered around publication and jurisdiction.
Decision
In a unanimous decision, all seven High CourtHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
justices decided that Gutnick had the right to sue for defamation at his primary residence and the place he was best known. Victoria was considered the place where damage to his reputation occurred. The High Court decided that defamation did not occur at the time of publishing, but as soon as a third party read the publication and thought less of the individual who was defamed.
Dow Jones was forced to admit in court that "there was no reason to believe Mr Gutnick was a customer of Mr Goldberg or had any criminal or improper relations with Mr Goldberg." (quote from an Australian Broadcasting Corporation story)
The High Court's ruling effectively allows defamation plaintiffs in Australia to sue for defamation on the internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
against any defendant irrespective of their location. "If people wish to do business in, or indeed travel to, or live in, or utilize the infrastructure of different countries, they can hardly expect to be absolved from compliance with the laws of those countries. The fact that publication might occur everywhere does not mean that it occurs nowhere." (per Callinan J at para 186)
Equally, however, the majority of the Court (Gleeson CJ, McHugh, Gummow and Hayne JJ handing down a joint decision) stated that they disagreed that this would cause open-slather defamation actions in Australia: (at para 54 of the decision)
The case was highly controversial and the subject of much commentary from legal analysts, particularly in the United States.
On 15 November 2004, Dow Jones settled the case, agreeing to pay Gutnick some $580,000 in fees and damages.
External links
- Full text of judgment
- Press release — High Court of AustraliaHigh Court of AustraliaThe High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
(1 page) - Jurisdiction and the Internet after Gutnick and Yahoo!
- Reaction to the judgment from Barrons