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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