Content controversy

It is widely assumed that manage content providers are subject to the laws wherever their data is hosted, but what happens when content delivery is global?

When content delivery is global, under what jurisdiction is legal control exercised?

Up until now, it is has been widely assumed that content providers manage the risk of online publication by hosting their content on servers within jurisdictions where the law is a known quantity. Editorial and legal control is exercised accordingly.

However, the High Court, in the first Internet matter it has heard, will later this year pronounce on an appeal by Dow Jones against a decision of the Victorian Supreme Court which found last year that jurisdiction is determined by the place in which online content is accessed.

The Dow Jones vs Gutnick appeal was heard in late May before the Full Bench of the High Court in Canberra. The Internet Industry Association (IIA), together with a number of major international publishers and portal sites, was granted leave to appear before the High Court (as interveners) to collectively advance arguments in support of Dow's case.

The appeal concerned mining entrepreneur Joseph Gutnick's right to sue in Victoria for allegedly defamatory material published by Dow Jones in its investor magazine Barron's. (The article implied that Gutnick was involved with a convicted money launderer and tax evader). The online version of the article was accessible to the world by registering on the Barron's Web site.

The central issue concerned was which legal jurisdiction applied: that of New Jersey where Dow Jones maintained their servers (or alternatively New York where they exercised editorial control), or Melbourne where Gutnick accessed the article, where his reputation largely resided, and where defamation is easier to prove.

The Victorian Supreme Court Judge, Justin Hedigan, at first instance last December, found for Gutnick on the basis that the article was accessible by readers in Victoria, so the act of publishing - and therefore the defamation - had occurred there.

His Honour accepted Gutnick's argument that publishing on the Internet was a "push" technology and that publication occurs at the time and place the reader comprehends the material. His Honour rejected Dow Jones' argument that publishing was a "pull" technology which relied on the act of an Internet user requesting content before it could be served to them.

While this might seem like a technical legal distinction, the implications that flow from it are very significant for those publishing content on the Net. In practical terms, it means if the location of the Internet user determines the jurisdiction and applicable law, then an Internet publisher will have no way of managing its risk because they cannot reasonably foresee what laws might apply in every place where its content may be accessed.

It is possible that insurers might be reluctant to cover an unquantifiable risk of this kind, and some fear this might have a chilling effect on online publication generally.

In addition, the implications of this case could extend beyond defamation, since what is at issue here is the question of jurisdiction and applicable law.

This means that a publisher would have to consider all other types of liability which might also arise from publication including other torts such as negligence and passing off, and under laws governing things like privacy, obscenity, sedition, racial vilification, consumer protection, and e-commerce.

Furthermore, decisions of the Australian High Court are persuasive in other Commonwealth countries and may therefore influence the way that others deal with similar issues. For these reasons, the implications of the High Court's findings may turn out to be very wide indeed.

If the appeal is lost, the future of online publication may depend on securing legislative changes to take account of the novel and ubiquitous nature of the Internet.

Peter Coroneos is Chief Executive of the Internet Industry Association (IIA), which, together with AIMIA, has worked on policy issues for a number of years.

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