The Law of Defamation and the Internet

Update 9

Jurisdiction, Defamation and the Internet

An analysis of recent developments in Australia and the United States

In Dow Jones & Company Inc v Gutnick, the Australian High Court held that a plaintiff in the State of Victoria may maintain a defamation action in Victoria against an American online publisher in respect of material written, edited and uploaded to the Internet in the United States.

The High Court’s decision is consistent with decisions of courts in England and Canada. An American court, faced with the same facts, might well have reached the same conclusion as the High Court. Nonetheless, the High Court’s decision attracted widespread national and international criticism.

While the decision does have the potential to chill freedom of speech on the Internet, there are significant substantive and practical reasons why it will be unlikely to have the dire implications some have predicted. The ramifications of the decision might also be tempered – as the High Court has hinted – by the development of a new defence to Australian defamation law applying in cases where a publisher’s conduct has occurred wholly outside the jurisdiction of the forum.

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