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21 Comm. Law. 1 (2003-2004)

handle is hein.journals/comlaw21 and id is 1 raw text is: Communications - ~~~Publication o! the Forum - e on Communications Law E U E N Amercan Bar Association Volume 21, Number 1, Spring 2003 C* 0 ''0 ' In this Issue COVER STORY Gulnick is a setback Ibr media companies hoping to avoid jurisdiction based on Intemet publication but the current state of U.S. low on enforcement of foreign media judgments is reassuring. Chair's Column ....................... 2 Chair Tom Kelley delivers a memento mort on the untimely death of media lawyer Bill Dixon of Albuquerque. Media Risks ............................. 3 Nonmedia businesses are using modern technology to engage in unprecedented levels of media activity. The risks are considerable (and often uninsured). Public Access Channels .............. 9 Solving the problems caused by unfettered access requires knowledge o1 statutory and constitutional principles and the willingness to he proactive. Scottsdale Conference ...... 13 The 8th Annual Conference offered something for everyone: plenary sessions on newsgathering and terrorism, jury reform and libel cases, a retrospective on Rustler Magazine, hic. t. Falwell, and five concurrent workshops. Newsgathering ....................... 20 If you missed this year's NAB meeting, you can still learn how to handle the top ten statements you don't want to hear from your news director. Courtslde .................................... 29 The U.S. Supreme Court's First Amendment docket could not be more varied than it has been this spring. Help the Forum's Website Contact Jerry Birenz at (212) 381-7057 (phone), (212) 381-7233 (fax), or jbirenz@sbandg.com (please put Forum website in the subject line) to become involved with the Forum's websitc. Technical knowledge is not necessary. Enforcement of Foreign Media Judgments in the Aftermath of Gutnick v Dow Jones & Co. KEN KRAUS AND DAN POLATSEK In Gutinick v. Do,' .kmes & Co.,' the Australian High Court jolted the U.S. publishing community by holding that it could exercise personal jurisdiction over U.S.-based Dow Jone, because an auticle downloaded from its website allegedly defamed an Auslralian citizen. This means that the case, scheduled for trial this fall, will proceed under the strict lia- bility defamation law of Australia. Because the First Amendmetm pro. vides greater protection for U.S. media companies than in foreign countries, the groundbreaking Gim ick decision raises the question of whether foreign judg- ments against (ie media can be en- forced in the United States. If the fed- eral courts follow the leading cases, any foreign judgment entered without the protectw;s generally afforded by the First Amendment will not be enforce- able in the United States. Media com- patty assets in foreign jurisdictions will, of course, be subject to attachment un- tier the laws of those countries.' This article examines the GOtnick de- cision and three of the leading cases on the enforcement of foreign media judg- ments in the United States. It also ex- amines recent and ongoing develop- ments of the enforcement treaty pro- posed by tie Htgue conference as well as the federal enforcement statute pro- posed by the American Law Institute. The Gistiek Decision Joseph Gumick is an entrepreneur in Victoria, Australia, and a pruminenl figure in the local business community with a reputation in philanthropic, spolimtng, and religions circles. In October 2000, Barron's Magazine featured an article enti- tlcd Unholy Gains that Gutnick alleged accused him of tax evasion and money laundering. The article was available in both print and online editions. In November 2000, Gotnick filed a defmuna- tion action in the Supreme Court of Victorina, alleging thtt his reputation wits injured in the Australian state of Victoria. Undoubtedly hoping to bnefit fioni Australia's strict liability rule for defama- tion mid a local jury, Gutnick alleged in his complaint that he was injured when the ar- ticle was downloaded in his home state. Dow Jones maintained that publica- tion occurred when the article was up- loaded to the wehsite's servers in New Jersey and, therefore, jurisdiction was proper only in New Jersey. t)ow Jones further argued that a contrary ruling would have a chilling effect on Internet content because publishers would have to scrutinize every article for defamatory content under the laws of every jurisdic- tion from Afghanistan to Zimbabwe. The lower court held that jurisdiction is proper where the article is downloaded- in this case, Victoria, Australia. Disre- garding several recent Intemet jurisdic- tion cases.' the court based its holding in part on the fact that the allegedly defama- tory material was downloaded by sub- scription holders' itt Victoria. On appeal to the High Court of Australia, Dow Jones emphasized: I)The need for a single uniform law goveming Internet defamation. 2) 'lie chilling effect that would re- stilt in tie absence of a unifunn law, thereby forcing publishers to reduce Intemet content rather than face lawsuits from around the globe. (Continued on page 24)

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