Dow Jones & Co. v. Gutnick: Will Australia's Long Jurisdictional Reach Chill Internet Speech World-Wide?
![handle is hein.journals/pacrimlp13 and id is 69 raw text is: Copyright 0 2004 Pacific Rim Law & Policy Journal Association
DOW JONES & CO. v. GUTNICK: WILL AUSTRALIA'S
LONG JURISDICTIONAL REACH CHILL INTERNET
SPEECH WORLD-WIDE?
Nathan W. Garnettt
Abstract: In December of 2002, the High Court of Australia issued its decision in
Dow Jones & Co. v. Gutnick, holding that Dow Jones could be haled into court in
Australia for the publication of defamatory material on the Internet. This decision was
surprising because the material in question was published in the United States on Dow
Jones's New Jersey web servers. This decision makes Australia the only country that
allows an action against a foreign defendant based solely on an Internet download in that
country. However, the structure of the Gutnick opinion may open the door for other
countries to follow the High Court's example.
The Gutnick decision raises concerns that the territorial borders of speech protection
could break down in the Internet Age. Laws regarding the balance between free speech
and the protection of reputation vary widely among nations. However, the Australian
court ignored the implications that the breakdown of the borders between jurisdictions
could have on this balance, and instead mechanically applied historical precedent to the
Internet. This strict application to the Internet of precedent created for off-line
publication may produce a chilling effect on Internet speech worldwide by reducing the
level of speech protection on the Internet to the lowest common denominator. The
Gutnick decision's narrow focus on precedent does not offer sufficient protection to
international free speech, and the Australian Parliament should adopt a jurisdictional rule
to protect Internet speakers that do not aim their speech at Australia.
I. INTRODUCTION
In December of 2002, the High Court of Australia issued a landmark
decision regarding jurisdiction for cases arising out of information published
on the Internet.' In Dow Jones & Co. v. Gutnick, the High Court held that
Australian courts have jurisdiction over a claim of defamation based on
material that was placed on the Internet outside of Australian borders.z This
decision is unique because no other country has allowed jurisdiction over
t The author would like to thank Professor Jane Winn and the Editorial Staff of the Pacific Rim Law
& Policy Journal.
' Dow Jones & Co. v. Gutmick, [2002] H.C.A. 56. Please note that, as the Bluebook has not been
updated to reflect the Australian High Court's new medium-neutral citation format, citations to recent
Australian cases will use a modified version of the citation format suggested by the High Court. This
format is (parties) [year of decision] (Court abbreviation) (sequential judgment number), (pinpoint cite to
paragraph number). See The High Court of Australia, Paragraph Numbers in High Court of Australia
Judgments and the use of Medium-neutral Citations, at
http://www.austlii.edu.au/au/cases/cth/high ct/medium.html (last visited Nov. 10, 2003).
2 See Gutnick, [2002] H.C.A. 56, 48.](ViewImageLocal?handle=hein.journals/pacrimlp13&div=9&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Dow Jones & Co. v. Gutnick: Will Australia's Long Jurisdictional Reach Chill Internet Speech World-Wide?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most