Gutnick High Court Decision: Storm in a Teacup?
0th December
The reaction to yesterday’s High Court decision in Gutnick is excessive, according to a defamation expert with the Baker & McKenzie Cyberspace Law and Policy Centre at the University of New South Wales.
“The High Court is the most senior court in the world to give its views on these thorny questions of defamation and private international law. Its decision went decisively against Dow Jones, and the many interveners from local and global publishing and Internet companies,” said Anne Flahvin, online defamation lawyer and research associate at the Centre.
“However, it clearly just confirmed the existing common law principles of defamation in Australia. The invitation made by Geoffrey Robertson for the High Court to rewrite the law for policy reasons was rejected. Justice Callinan, for instance, saw this as an attempt to ‘impose ... an American legal hegemony in relation to Internet publications’ on Australian residents.
“Although some commentators are saying the decision effectively means anyone publishing on the web can be sued anywhere in the world for defamation, this is not the case. At most it applies in Australia – no other countries adopt Australian law in place of their own.
“In addition, the free speech principles in the US Constitution would also be likely to lead to a refusal by a US court to enforce a decision of an Australian court in this area on the basis that it contravenes their free speech protections," she said.
The Baker & McKenzie Cyberspace Law and Policy Centre and the Communications Law Centre will next week hold a seminar, Defamation in cyberspace: reactions to the High Court’s decision in Dow Jones v Gutnick. An expert panel will discuss the implications of the ruling.
For further information: Anne Flahvin, mob. 0411 333 791 or David Vaile, Executive Director, Baker & McKenzie Cyberspace Law and Policy Centre, tel. (02) 9385 3589, mob. 0414 731 249.
“The High Court is the most senior court in the world to give its views on these thorny questions of defamation and private international law. Its decision went decisively against Dow Jones, and the many interveners from local and global publishing and Internet companies,” said Anne Flahvin, online defamation lawyer and research associate at the Centre.
“However, it clearly just confirmed the existing common law principles of defamation in Australia. The invitation made by Geoffrey Robertson for the High Court to rewrite the law for policy reasons was rejected. Justice Callinan, for instance, saw this as an attempt to ‘impose ... an American legal hegemony in relation to Internet publications’ on Australian residents.
“Although some commentators are saying the decision effectively means anyone publishing on the web can be sued anywhere in the world for defamation, this is not the case. At most it applies in Australia – no other countries adopt Australian law in place of their own.
“In addition, the free speech principles in the US Constitution would also be likely to lead to a refusal by a US court to enforce a decision of an Australian court in this area on the basis that it contravenes their free speech protections," she said.
The Baker & McKenzie Cyberspace Law and Policy Centre and the Communications Law Centre will next week hold a seminar, Defamation in cyberspace: reactions to the High Court’s decision in Dow Jones v Gutnick. An expert panel will discuss the implications of the ruling.
For further information: Anne Flahvin, mob. 0411 333 791 or David Vaile, Executive Director, Baker & McKenzie Cyberspace Law and Policy Centre, tel. (02) 9385 3589, mob. 0414 731 249.
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