High Court ruled that a party within Australia can sue a foreign party in Australian
court for defamation resulting from an online article hosted on a foreign server. The
specific case involved a lawsuit pitting Joseph Gutnick, an Australian businessman,
against Dow Jones over a defamatory article written about him in Barron’s Online in
October 2000. Dow Jones argued that since its servers (and therefore the article) were
in the United States, the defamation case should have been tried in the United States.
A decision allowing the case to be tried in Australia, they argued, would restrict free
speech around the world because it would require authors and publishers to take into
account the laws of foreign countries under which they could be sued when publishing
material online. 68
The court countered, however, that the ‘‘spectre of ‘global liability’ should not be
exaggerated. Apart from anything else, the costs and practicalities of bringing proceedings against a foreign publisher will usually be a sufficient impediment to discourage
even the most intrepid of litigants. Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to
ignore the proceedings. It may save its contest to the courts of its own jurisdiction
until an attempt is later made to enforce there the judgment obtained in the foreign
trial. It may do this especially if that judgment was secured by the application of laws,
the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture.’’ 69 The parties eventually settled for AUD 180,000 in
damages and AUD 400,000 in legal fees.’’ 70
New Zealand defamation law was first found to apply to online material in a district
court decision, O’Brien v. Brown, in late 2001. In the case, Patrick O’Brien, chief executive officer of the New Zealand domain manager Domainz, sued Alan Brown, the
head of a Manawatu ISP, for Brown’s posting of harsh criticisms and calls for fraud
investigation into Domainz on a publicly available Internet Society of New Zealand
bulletin board. 71 The judge in the case found that the Internet afforded no additional
freedom of expression to the defendant than any other medium and, further, that publication on the Internet required a greater award of damages than through another
medium because of the ease with which Domainz’s potential customers and clients
could access the defamatory material. 72
In addition, the New Zealand courts have followed Australia’s example in determining the jurisdiction for defamation suits over online content hosted in a foreign country. Ironically, the relevant suit involved an Australian defendant. In 2004, the
Wellington High Court found that the University of Newlands (based in New Zealand)
could sue Nationwide News, Ltd. (based in Australia) in New Zealand court for Nationwide’s inclusion of the plaintiff in a list of ‘‘Wannabe Unis’’ and ‘‘degree mills’’ in its
online newspaper, The Australian. This ruling more closely aligned New Zealand defamation policy with Australia. 73
Australia and New Zealand Overview
399
court for defamation resulting from an online article hosted on a foreign server. The
specific case involved a lawsuit pitting Joseph Gutnick, an Australian businessman,
against Dow Jones over a defamatory article written about him in Barron’s Online in
October 2000. Dow Jones argued that since its servers (and therefore the article) were
in the United States, the defamation case should have been tried in the United States.
A decision allowing the case to be tried in Australia, they argued, would restrict free
speech around the world because it would require authors and publishers to take into
account the laws of foreign countries under which they could be sued when publishing
material online. 68
The court countered, however, that the ‘‘spectre of ‘global liability’ should not be
exaggerated. Apart from anything else, the costs and practicalities of bringing proceedings against a foreign publisher will usually be a sufficient impediment to discourage
even the most intrepid of litigants. Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to
ignore the proceedings. It may save its contest to the courts of its own jurisdiction
until an attempt is later made to enforce there the judgment obtained in the foreign
trial. It may do this especially if that judgment was secured by the application of laws,
the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture.’’ 69 The parties eventually settled for AUD 180,000 in
damages and AUD 400,000 in legal fees.’’ 70
New Zealand defamation law was first found to apply to online material in a district
court decision, O’Brien v. Brown, in late 2001. In the case, Patrick O’Brien, chief executive officer of the New Zealand domain manager Domainz, sued Alan Brown, the
head of a Manawatu ISP, for Brown’s posting of harsh criticisms and calls for fraud
investigation into Domainz on a publicly available Internet Society of New Zealand
bulletin board. 71 The judge in the case found that the Internet afforded no additional
freedom of expression to the defendant than any other medium and, further, that publication on the Internet required a greater award of damages than through another
medium because of the ease with which Domainz’s potential customers and clients
could access the defamatory material. 72
In addition, the New Zealand courts have followed Australia’s example in determining the jurisdiction for defamation suits over online content hosted in a foreign country. Ironically, the relevant suit involved an Australian defendant. In 2004, the
Wellington High Court found that the University of Newlands (based in New Zealand)
could sue Nationwide News, Ltd. (based in Australia) in New Zealand court for Nationwide’s inclusion of the plaintiff in a list of ‘‘Wannabe Unis’’ and ‘‘degree mills’’ in its
online newspaper, The Australian. This ruling more closely aligned New Zealand defamation policy with Australia. 73
Australia and New Zealand Overview
399