Dow Jones v Gutnick

Facts

• Barron's Online (a Dow Jones publication hosted on servers in New Jersey, USA) published an article about Joseph Gutnick, a prominent Melbourne businessman
• The article allegedly linked Gutnick to money laundering and tax evasion
• Gutnick sued for defamation in the Supreme Court of Victoria, Australia
• The article was accessible worldwide; approximately 1,700 Barron's Online subscribers were in Australia (300 in Victoria)
• Dow Jones argued the sole place of publication was New Jersey (where the server was located) and Australian courts lacked jurisdiction

Issues

1. Where does internet publication occur for defamation purposes: at the server (upload) or at the reader's location (download)?
2. Whether an Australian court has jurisdiction over defamation published on a US-hosted website

Held

• Defamation is a tort of publication. Publication requires comprehension by a third party
• For internet material, publication occurs where and when it is downloaded and read, not where it is uploaded to a server
• Gutnick had reputation in Victoria; the material was downloaded there; Victorian courts have jurisdiction
• The "single publication rule" (US doctrine limiting suit to place of upload) is not part of Australian law
• The internet does not create a "lawless zone" exempt from territorial jurisdiction

Ratio Decidendi

The bilateral theory of publication governs: a publisher publishes where a reader reads. The technology of the internet (servers, hosting, routing) does not alter this principle. Damage to reputation occurs where reputation exists, and the law of the place of damage applies. Publishers who make content globally accessible assume the risk of liability in every jurisdiction where the content is received.