Flogging dead horse the postal acceptance rule and email

DOW JONES & COMPANY INC ......................... APPELLANT; DEFENDANT,

AND

and with business interests there — Material housed on computer server in United States and uploaded to World Wide Web there — Material downloaded by subscribers to service in Victoria — Choice of law.

Practice — Service out of jurisdiction — Tort committed within jurisdiction — Damage suffered wholly or partly within jurisdiction caused by tortious

2002

Gleeson CJ,

limited to damage to reputation in jurisdiction from publication there — Law of jurisdiction to govern substantive issues.

A resident of Victoria who conducted a business with headquarters in that State sued a United States corporation for libel in the Supreme Court of Victoria. The plaintiff alleged that he had been defamed by the publication in Victoria of material which had been downloaded there from the World Wide Web by subscribers to a business news service conducted by the defendant. The World Wide Web was a service available over the Internet. The alleged defamatory material related to the plaintiff’s probity as a businessman. The defendant had an editorial office in New York where material for the service was prepared. The material was then transferred to computers operated by the defendant in New Jersey from which it was made available (by downloading) to subscribers to the news service by computers which had access to the Internet. Subscribers might be anywhere that access was available to the Internet. There were more than 500,000 subscribers to the news service of whom approximately 1,700 were in Australia.

(2) That because the plaintiff’s claim was confined to damage allegedly caused to his reputation in Victoria as a consequence of a publication in that State, substantive issues arising in the action would be determined by the law of Victoria. Accordingly, there was no reason to conclude that Victoria was an inappropriate forum.

Per curiam. Defamation is ordinarily located for the purposes of Australian common law choice of law rules at the place where the damage to reputation occurs which, ordinarily, will be where the material alleged to be defamatory is available in comprehensible form if the person defamed has in that place a reputation that is thereby damaged.

Hedigan J erred (1) in holding that defamatory material displayed on the World Wide Web was published for the purposes of the tort of defamation where it was downloaded by the computer user and not where it was made available for downloading by the publisher; (2) in holding that the place of publication was synonymous with the place of the commission of the tort of defamation for the purposes of determining: (i) jurisdiction to serve process out of Australia under r 7.01(1)(i) of the Supreme Court Rules; (ii) the substantive law to be applied at trial; (iii) and by dint of the choice of the law of the place of downloading as the substantive law of the action, that Victoria was the appropriate forum for the trial of the action; (3) in failing to find that:

1. r 7.01(1)(j) related only to foreign torts; (ii) there was no allegation of a foreign tort in the writ and statement of claim served on the defendant; (iii) r 7.01(1)(j) did not authorise service out; (4) in considering whether Victoria was not a clearly inappropriate forum, or alternatively was not a convenient forum, by failing to find that the law to be applied in any Victorian proceedings was the law of New Jersey and by failing to take those findings into consideration in determining the forum issue.

The defendant undertook, if the Victorian proceedings were stayed

and the plaintiff sued in the United States, to raise no objections to the forum and to waive any limitation periods. The most relevant differences between Victorian and United States law are that by virtue of the first amendment to the United States Constitution, (a) the plaintiff bears the burden of proving falsity of the imputation about which he complains (1); (b) if a ‘‘public figure’’ the plaintiff must prove actual malice, ie that defendant published recklessly, with knowledge of or reckless indifference to falsity (2); and (c) private plaintiffs need prove only falsity and fault (ie that defendant published negligently) but if they claim punitive damages or (in some states) if the matter is of public concern, they must establish actual malice (3). In addition, (d) United States law treats the publication of multiple copies of a defamation in multiple jurisdictions as a single publication, giving rise to one ‘‘global’’ tort action in which comprehensive damages may be recovered; (e) United States law has a defence of substantial truth, entitling the defendant to justify the sting of the

The defendant argued in the Supreme Court that it had a legitimate interest in having the dispute heard in New York or New Jersey where it carries on all material business in respect to Barron’s and the website. It is where the article was researched, written and edited, and for United States business purposes uploaded to the website. The defendant operates and insures its news business under United States laws and professional standards, composing the information it provides by reference to what they prescribe or permit, in accordance with constitutional rights which the publisher and most of its readers enjoy. Its liability insurance, privacy policy, subscription agreements etc are arranged in the expectation that disputes will normally be submitted to adjudication in the United States. It was accepted that the plaintiff has an interest in having the dispute adjudicated in Victoria, his domicil and residence, where he is known through local charitable, religious and sporting connections. There was really no choice between a forum convenient to a plaintiff whose business and reputation was confined to Victoria and one convenient to a defendant whose constitutionally protected communications were directed to Americans. The infor- mation the defendant published in the United States was sought out by interested individuals in Victoria, but the defendant had no corporate presence and had taken no step to market Barron’s Online or promote the article there. The activity which directly caused its product to enter the State was that of third parties who took active steps to subscribe and to search for it. The subscription contracts were expressed to be governed by New York law. The plaintiff had a long history of presence in New York and of business operations there in actively and personally promoting his stocks in the United States to investors. He had announced that he was moving up to half his business to America. His connections with the United States are much closer, and more relevant than the defendant’s passive connections with Victoria. It is unjust to deprive it of the constitutional protection and juridical

4. Masson v New Yorker Magazine (1991) 501 US 496 at 516-517; cf David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667.

(5) Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 566. (6) [2001] 2 AC 127.

(7) [2000] 1 NZLR 257; [2000] 3 NZLR 385.

(12) (1994) 33 NSWLR 680 at 687-688, 699, 709-710.

(13) (1992) 177 CLR 292 at 321.

(18) (1996) 185 CLR 183 at 219-220.

19. Byrne v Deane [1937] 1 KB 818.

Jersey and that New Jersey law was the lex loci delicti commissi. If, however, the courts below were correct in applying the lex fori to decide whether a tort was committed within Victoria, is the single publication rule in the case of multi-jurisdictional and/or World Wide Web publication still part of the common law in Australia? That this rule remains entrenched in the common law of England was affirmed in Berezovsky v Michaels (24), but it was abandoned by the common law courts in America (even before Dean Prosser’s assault in 1953) (25) and has been criticised by the Australian Law Reform Commission (26) and by the New South Wales Court of Appeal (27). The decision as to place of publication cannot turn on whether the website was a subscriber one. Subscription emphasises that access is a deliberate act of the computer user who develops more connections with New Jersey by sending more messages there and providing information held and checked on databases there. Hedigan J’s assumption of jurisdiction should not have controlled or influenced the choice of law to be applied in deciding the parties’ rights and duties (28). The identification of that law, in foreign as well as interstate torts, now requires the ascertainment of the lex loci delicti without any flexible exception but, in appropriate cases, with confrontation of policy considerations on a stay application. There is a difficulty in identifying the lex loci of a libel committed in many states by a national publication (a fortiori by Internet publication). The quest is for the law of the place of the act which gave rise to the cause of action. The uploading of the article in New Jersey was the sine qua non of its being obtainable in Victoria or elsewhere where the print edition was not distributed. The common sense approach to ascertaining the lex loci delicti mandated by Voth v Manildra Flour Mills Pty Ltd (29) cannot be altered by a tactical limitation of complaint to Victorian references in the article or an undertaking not to sue elsewhere. The rules for determining the place of the tort were not the same for purposes of jurisdiction and of the choice of law, particularly where jurisdictional rules indicate that the tort is committed in a number of places (30). The ‘‘substance’’ test is factual and forum-neutral. It does not entail that every separate reception is a separate cause of action. Rules fundamental to domestic law do not

(24) [2000] 1 WLR 1004 at 1012, 1024, 1026-1027; [2000] 2 All ER 986 at 993, 1005,

28. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 521 [25]; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 499 [10].

(29) (1990) 171 CLR 538 at 567.

Victorian law was applicable. An important reason was provided by the plaintiff ’s undertaking not to sue elsewhere and to seek only damages under Victorian law for Internet publication in Victoria that affected his reputation there. If the lex loci delicti had been held to be New Jersey, the discretion would or should have been exercised by staying the Victorian proceedings. The application was brought under r 7.05 which permits the Court to make an order on the ground that Victoria is not a convenient forum for the trial. The rule was made in

31. See Briggs, ‘‘Jurisdiction over International Defamation’’, The British Yearbook of International Law 2000, p 440; Cheshire and North, Private International Law, 13th ed (1999), p 660; Dicey & Morris, The Conflict of Laws, 13th ed (2000), p 1568, par 35-137.

(32) [1987] AC 460.

(33) (1990) 171 CLR 538.

(39) (1986) 104 NJ 256; 516 A 2d 1083.

(40) (1999) 94 NY 2d 296; 726 NE 2d 456.

Army (45); Chase Securities Corporation v Donaldson (46); Yahoo! Inc v La Lique Contre Le Racisme Et L’Antisemitisme (47); Gertz v Robert Welch Inc (48); Desai v Hersh (49); Anderson, ‘‘An American Perspective’’ in Markesinis & Deakin, Tort Law (50); and Lord Bingham of Cornhill, foreword to Collins, The Law of Defamation and the Internet (51).]

J L Sher QC (with him M F Wheelahan), for the respondent. The chief purpose of an action for defamation is to counter injury to plaintiffs in their reputation: a vindicatory verdict is the only effective remedy for such damage. Thus, the comprehension of defamatory matter by a third party is fundamental to the cause of action (52). It is reasonable for residents of Victoria to expect the law to provide an effective remedy if their reputations in Victoria are damaged as a result of defamatory imputations comprehended by others there. It was not inappropriate to apply Victorian law to an Internet publication concerning the respondent when publication there was not only reasonably foreseeable, but was intended, by the appellant, because the Internet article was available only to subscribers and it accepted subscriptions from Victoria. Publication of the article occurred in Victoria when the article was seen and comprehended there. There are three significant obstacles to the appellant’s case: (a) the multiple publication rule, that each communication is a separate tort; (b) the principle that publication occurs where and when the defamatory meaning is comprehended; and (c) the principle that a defendant is liable for a publication in Victoria which is the intended or natural and probable consequence of its acts.

(47) (2001) 145 F Supp 2d 1168 at 1179.

(48) (1974) 418 US 323.

53. Duke of Brunswick v Harmer (1849) 14 QB 185 [117 ER 75]; Berezovsky v Michaels [2000] 1 WLR 1004 at 1012; [2000] 2 All ER 986 at 993; Godfrey v Demon Internet Ltd [2001] QB 201 at 208; McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513 at 520, 528; Emmerton v University of Sydney [1970] 2 NSWR 633 at 634, 639; Pullman v Walter Hill & Co [1891] 1 QB 524 at 527; Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 177; Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 535; Loutchansky v Times Newspapers Ltd [Nos 2-5] [2002] QB 783.

54. (Defamation Act 1974 (NSW), s 9(2)) Defamation Act 1957 (Tas), s 7(b).

55. Browne v Dunn (1893) 6 R 67; Webb v Bloch (1928) 41 CLR 331 at 363; Lee v Wilson (1934) 51 CLR 276 at 287; Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 367; Beitzel v Crabb [1992] 2 VR 121 at 127; Gambrill v Schooley (1901) 48 A 730.

established with certainty from the web server it would not be possible to identify which server sent the message and thus where the tort was committed. Further, when one server was busy, the subscriber’s request might be directed to another server. (i) If a defendant were able to allege foreign law in proceedings arising out of defamatory communications read and comprehended within Australia, it would place an intolerable burden on plaintiffs of proving that the claim was well founded in a foreign system of law which had little or no relationship with the place where the damage occurred. (j) Persons in Australia defamed by Internet publications read and comprehended within the jurisdiction could bring proceedings in a State court based only on true long-arm jurisdiction by alleging damage occurring within the jurisdiction. They would thus be exposed to a greater risk of losing a forum non conveniens application. (k) Within Australia, many publications originate in New South Wales. The effect of the single point of publication proposition would be that many publications in other States and territories would be governed by the Defamation Act 1974 (NSW). Choice of law in defamation is relatively simple. Only the place of publication (ie comprehension), which is readily ascertainable, has to be identified. The appellant seeks to impose on Australian residents an American legal hegemony in relation to Internet publications because it has some presence in the United States. Those publishing defamatory material on the Internet should foresee that the defamed will suffer injury to reputation in their place of domicile and other places where they have a reputation. It is not too much to expect publishers first to obtain advice about defamation laws in those places.

Choice of law: That is determined by the lex loci delicti (57). The act of publication constitutes the cause of action (58); thus for choice of law purposes the lex loci delicti is the place of publication (59). Because publication occurred in Victoria, no occasion arises for the application of other than Victorian laws. Defamation differs from negligence by representation and that causing personal injury. In a case of a negligent (or fraudulent) representation the receipt of the communication, reliance, and damage, may be separated by space or time. By contrast defamation is not concerned with conduct which may span space and time but with the point of publication. In libel damage is presumed. Publication (ie comprehension of defamatory matter) and damage occur simultaneously. The appellant’s web server technology was a participant in the publication process here. Two activities were required: the browser request and the servers’ response. Without servers and their electronic co-operation, publication in Victoria would not have occurred. Moreover, the appellant controlled access to the Internet article and by employing user names and passwords it controlled and directed the publication of the Internet article in Victoria. The conduct of a defendant in researching and preparing an article is irrelevant for determining choice of law in defamation since it is irrelevant to where the tort occurred. Such conduct is also irrelevant to defences of whether the publication is defamatory and whether imputations are true.

The interveners’ submission that the publication occurs where there

59. Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 at 87; app (1986) 12 FCR 510 at 605. See also Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6; 22 FLR 181; Carleton v Freedom Publishing Co Pty Ltd (1982) 45 ACTR 1; Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225; Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238; Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519.

submitted that a tort had been committed within the jurisdiction and thus r 7.01(1)(i) applied. The appellant alleges that these facts constitute a foreign tort. If so, r 7.01(1)(j) applies. On either view, service out of the jurisdiction was permitted by r 7.01. The appellant submits that par (j) applies only to foreign torts. That submission ignores the phrase ‘‘a tortious act or omission wherever occurring’’. If the question of where a tort was committed depends upon the ‘‘substantive acts of the defendant’’ so that a tort may be committed by a combination of acts, some within the jurisdiction and some outside it, par (j) has work to do (60). Hedigan J was correct in applying both pars (i) and (j).

(62) [1971] AC 458 at 466-467.

(63) (1990) 171 CLR 538 at 567, 591-592.

66. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

67. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 567.

71. Gatley on Libel and Slander, 9th ed (1998), par 32.5.

72. Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 191-193; Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 177.

such matter is communicated by telegram, it will be assumed to have been published to the post office clerks (77). The display of a poster or billboard is publication of any defamatory material in it (78). A defamatory statement by telephone is published where the other party to the telephone conversation was situated (79). Publication by broadcast on radio or television is at the point where the signal is received, not where it is transmitted (80). Issues relating to publication on the World Wide Web have been considered in Australian cases (81). [He referred to United States cases concerning Internet publi- cation (82).] The Internet has no territorially based boundaries. The cost and speed of information transmission is almost entirely independent of physical location, with information transmitted from one location to another without any cues or barriers that otherwise keep geographically remote places and people separate from one another (83). While measures designed to limit the geographic diffusion of web sites exist, such as filtering devices, URLs and password restrictions, these cannot guarantee effectiveness. The rise of an electronic medium which so disregards geographical boundaries requires clear legal rules. In relation to defamation, an approach which treats the place of uploading material on to the global network as the unique place of publishing satisfies the need for such clarity, enabling a person uploading material to determine the legal rules applicable to his or her conduct. Subsequent distribution of printed versions in physical space, by persons capable of knowing the applicable territorial State’s laws, can continue to be characterised as several publications in each location without undermining the single point of (electronic) publication approach to defamation on the World Wide Web. This version of a single point of actionable conduct approach is reconcilable with authority concerning pre-Internet modes of publi- cation which involve a selected destination (point to point publication) or other than mere conduit intermediaries. [He referred to Hill, ‘‘Flogging a Dead Horse — The Postal Acceptance Rule and

77. Sadgrove v Hole [1901] 2 KB 1 at 4-5.

82. Attorney-General (US) v American Civil Liberties Union (1997) 521 US 844; American Libraries Association v Pataki (1997) 969 F Supp 160; American Civil Liberties Union v Reno (1999) 31 F Supp 2d 473; American Civil Liberties Union v Reno (2000) 217 F 3d 162 at 169, 175; Ashcroft v American Civil Liberties Union (2002) 535 US 564.

83. Johnson & Post, ‘‘Law and Borders: The Rise of Law in Cyberspace’’, Stanford Law Review, vol 48 (1996) 1367, at pp 1370-1371.

85. Cubby Inc v CompuServ Inc (1991) 776 F Supp 135 at 139; Stratton Oakmont v Prodigy Services (1995) 23 Media Law Rep 1794 (NY); Gatley on Libel and Slander, 9th ed (1998), par 6.21.5, fn 73. See also Quirk, ‘‘Defamation in Cyberspace’’, in A Fitzgerald et al (eds) Going Digital: Legal Issues for Electronic Commerce, Multimedia and the Internet (1998) 146, at p 151. See also Defamation Act 1966 (UK), s 1; Collins, ‘‘Running for Cover, Law Institute Journal, vol 74(5) (2000).

law of defamation, in particular. It reflects the reality that traditional approaches in the law of defamation may no longer serve when applied to identifying the place and time of publication. The upload site argument reconciles previous decisions in relation to pre-Internet publications with the rule contended for in the case of Internet publication by concentrating juristic attention on the true or substantial place of the conduct giving rise to the putative liability. It introduces a territorial focus in a space which is touted as one without territorial borders. It also distinguishes realistically between conduct in one law district calculated or intended to reach into another (known) district and conduct in one law district which might, regardless of the publisher’s volition, be a cause of a message being received by anyone anywhere, everywhere and at various times.

1. GLEESON CJ, MCHUGH, GUMMOW AND HAYNE JJ. The appellant, Dow Jones & Co Inc (Dow Jones), prints and publishes the Wall Street Journal newspaper and Barron’s magazine. Since 1996, Dow Jones has operated WSJ.com, a subscription news site on the World Wide Web. Those who pay an annual fee (set, at the times relevant to these proceedings, at $US59, or $US29 if they are subscribers to the printed editions of either the Wall Street Journal or Barron’s) may have access to the information to be found at WSJ.com. Those who have not paid a subscription may also have access if they register, giving a user name and a password. The information at WSJ.com includes Barron’s Online in which the text and pictures published in the current printed edition of Barron’s magazine are reproduced.

2. The edition of Barron’s Online for 28 October 2000 (and the equivalent edition of the magazine which bore the date 30 October 2000) contained an article entitled ‘‘Unholy Gains’’ in which several references were made to the respondent, Mr Joseph Gutnick. Mr Gutnick contends that part of the article defamed him. He has brought an action in the Supreme Court of Victoria against Dow Jones claiming damages for defamation. Mr Gutnick lives in Victoria. He has his business headquarters there. Although he conducts business outside Australia, including in the United States of America, and has made significant contributions to charities in the United States and Israel, much of his social and business life could be said to be focused in Victoria.

5. Dow Jones entered a conditional appearance to the process served upon it. It applied to a Judge of the Supreme Court of Victoria (Hedigan J) for an order that service of the writ and statement of claim be set aside or an order that further proceedings in the matter be permanently stayed.

6. In the course of the proceedings before the primary judge, Mr Gutnick proffered an undertaking to sue in no place other than Victoria in respect of the matters which founded his proceeding. The primary judge recorded in his reasons that Mr Gutnick ‘‘seeks to have his Victorian reputation vindicated by the courts of the State in which he lives [and that he] is indifferent to the other substantial parts of the article and desires only that the attack on his reputation in Victoria as a money-launderer should be repelled and his reputation re- established’’.

8. Dow Jones sought leave to appeal to the Court of Appeal of Victoria but that Court (Buchanan JA and O’Bryan A-JA) refused leave to appeal, holding that the decision at first instance was plainly correct. By special leave, Dow Jones now appeals to this Court. The appeal to this Court should be dismissed.

Undisputed principles

89. Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491.

90. (1999) 200 CLR 485 at 516-517 [78], per Gaudron, Gummow and Hayne JJ.

13. For present purposes, it is convenient to adopt what was said in that evidence without diverting to consider what qualification to, or amplification of, that evidence might be necessary to give a complete and entirely accurate description of the Internet or the World Wide Web. (There was, for example, no evidence adduced that revealed what electronic impulses pass or what electronic events happen in the course of passing or storing information on the Internet.)

14. One witness called by Dow Jones, Dr Clarke, described the Internet as ‘‘a telecommunications network that links other telecommunication networks’’. In his opinion, it is unlike any technology that has preceded it. The key differences identified by Dr Clarke included that the Internet ‘‘enables inter-communication using multiple data- formats . . . among an unprecedented number of people using an unprecedented number of devices [and] among people and devices without geographic limitation’’.

Dow Jones’s contention

18. The principal burden of the argument advanced by Dow Jones on the hearing of the appeal in this Court was that articles published on Barron’s Online were published in South Brunswick, New Jersey, when they became available on the servers which it maintained at that place.

21. The rule propounded by Dow Jones may have a greater appearance of certainty than it would have in fact. ‘‘Adventitious’’ and ‘‘opportunistic’’ are words likely to produce considerable debate. Does a publisher’s decision to have a server in a country where the costs of operation are low, or the benefits offered for setting up business are high, warrant either of these descriptions? Does a publisher’s decision to have servers in two, widely separated, states or even countries warrant either description, or is it simply a prudent business decision to provide security and continuity of service? How is the user to know which server dealt with a particular request? Is the fact that one rather than the other server met the request ‘‘adventitious’’?

22. To the extent that the suggested rule would require reference only to the law of the place in which the server is located, it is a rule that would evidently be convenient to the party putting material on a web server. But that does not conclude debate. The convenience of one party is important to it, but how would such a rule fit with other, no less relevant, considerations? In particular, how would it fit with the nature of the competing rights and interests which an action for defamation must accommodate?

singularity. What is important is that publishers can act with confidence, not that they be able to act according to a single legal system, even if that system might, in some sense, be described as their ‘‘home’’ legal system. Activities that have effects beyond the jurisdiction in which they are done may properly be the concern of the legal systems in each place. In considering where the tort of defamation occurs it is important to recognise the purposes served by the law regarding the conduct as tortious: purposes that are not confined to regulating publishers any more than they are confined to promoting free speech.

Defamation

95. Lee v Wilson (1934) 51 CLR 276 at 288, per Dixon J.

96. The Law of Torts (1887), p 210.

Single publication rule

29. Some twenty-seven States of the United States, including California, Illinois, New York, Pennsylvania and Texas, by legislation (103) or by judicial decision have adopted what is identified as the single publication rule (104). That rule is set out in §577A of the Restatement of Torts, 2d (1977), which is headed ‘‘Single and Multiple Publications’’, and reads:

4. 1. only one action for damages can be maintained;

99. eg, Defamation (Amendment) Act 1909 (NSW), s 7; Defamation Act 1974 (NSW), ss 9(2), 48; Wrongs Act 1958 (Vict), s 12; Wrongs Act 1936 (SA), s 11; Defamation Act 1889 (Q), s 24; Defamation Act 1957 (Tas), s 25; Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 537, per Samuels JA. See also Loutchansky v Times Newspapers Ltd [Nos 2-5] [2002] QB 783.

104. Particulars are given in Wood, ‘‘Cyber-Defamation and the Single Publication Rule’’, Boston University Law Review, vol 81 (2001) 895, at p 899.

     1. all damages suffered in all jurisdictions can be recovered in the one action; and

rule came to be coupled with statements to the effect that the place of that single publication was the place where the newspaper or magazine was published (110). The source of this added proposition was given as a case of prosecution for criminal libel (111) where the question was

(105) (2002) 775 NE 2d 463 (Ct App).

110. Fried, Mendelson & Co v Edmund Halstead Ltd (1922) 196 NYS 285 at 287 (App Div 1st Dept).

111. United States v Smith (1909) 173 Fed 227 (DC Ind).

began as a term describing a rule that all causes of action for widely

112. Fried, Mendelson & Co v Edmund Halstead Ltd (1922) 196 NYS 285 at 287 (App Div 1st Dept); Zuck v Interstate Publishing Corp (1963) 317 F 2d 727 at 730 (2nd Cir). But cf Kelly v Loew’s Inc (1948) 76 F Supp 473 at 483 (D Mass), per Judge Wyzanski and Mattox v News Syndicate Co (1949) 176 F 2d 897 at 900 (2nd Cir), per Chief Judge Learned Hand.

117. Hartmann v Time Inc (1947) 166 F 2d 127 (3rd Cir); Dale System Inc v Time Inc

(1953) 116 F Supp 527 at 529-530 (DC Conn).

120. Jackson v Goldsmith (1950) 81 CLR 446.

121. Blair v Curran (1939) 62 CLR 464.

Widely disseminated publications

38. In the course of argument much emphasis was given to the fact that the advent of the World Wide Web is a considerable technological advance. So it is. But the problem of widely disseminated communi- cations is much older than the Internet and the World Wide Web. The law has had to grapple with such cases ever since newspapers and magazines came to be distributed to large numbers of people over wide geographic areas. Radio and television presented the same kind of problem as was presented by widespread dissemination of printed material, although international transmission of material was made easier by the advent of electronic means of communication.

126. Constitution, s 118.

127. eg, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

128. Palmisano v News Syndicate Co (1955) 130 F Supp 17 (SDNY). (129) (1870) LR 5 CP 542.

(130) [1971] AC 458.

Set aside service or stay proceedings?

45. It is convenient to deal at this point with Dow Jones’s contentions that service of the originating process in the proceeding brought by Mr Gutnick should be set aside, and that further proceedings should be stayed on the ground that Victoria was a clearly inappropriate forum for trial of the action.

(j) the proceeding is brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act or omission wherever occurring.’’

Because Mr Gutnick alleged that he suffered damage in Victoria as a result of the publication made in Victoria when the Barron’s Online article was comprehensible to a reader, r 7.01(1)(j) was plainly engaged. Mr Gutnick’s proceeding was brought in respect of damage alleged to have been suffered at least partly in Victoria and alleged to have been caused by a tortious act or omission. As r 7.01(1)(j) makes plain, that paragraph of the rule has operation wherever the tortious act or omission is alleged to have occurred.

50. First, there may be some question whether the forum chosen by the plaintiff is clearly inappropriate. If there is more than one action brought, questions of vexation may arise and be litigated either by application for stay of proceedings or application for anti-suit injunction.

51. Secondly, a case in which it is alleged that the publisher’s conduct has all occurred outside the jurisdiction of the forum may invite attention to whether the reasonableness of the publisher’s conduct should be given any significance in deciding whether it has a defence to the claim made. In particular, it may invite attention to whether the reasonableness of the publisher’s conduct should be judged according to all the circumstances relevant to its conduct, including where that conduct took place, and what rules about defamation applied in that place or those places. Consideration of those issues may suggest that some development of the common law defences in defamation is necessary or appropriate to recognise that the publisher may have acted reasonably before publishing the material of which complaint is

54. Finally, if the two considerations just mentioned are not thought to limit the scale of the problem confronting those who would make information available on the World Wide Web, the spectre which Dow Jones sought to conjure up in the present appeal, of a publisher forced to consider every article it publishes on the World Wide Web against the defamation laws of every country from Afghanistan to Zimbabwe is seen to be unreal when it is recalled that in all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort.

55. The appeal should be dismissed with costs.

57. Much of the argument in the present case was concerned with the possibility of several actions being brought in several different jurisdictions in respect of the same defamatory matter. Seemingly, it was to overcome that possibility that the ‘‘single publication’’ rule was adopted in several of the American States. That rule has been described as ‘‘a legal fiction which deems a widely disseminated communication . . . to be a single communication regardless of the number of people to whom, or the number of states in which, it is circulated’’ (137).

58. It may be accurate to apply the description ‘‘legal fiction’’ to a rule that deems multiple publications to be a single publication. However, it is not apparent that the single publication rule set out in §577A of the Restatement of Torts, 2d (1977) deems that to be the case. Rather, as stated, the rule selects ‘‘single publication’’ as a device to define the circumstances in which a plaintiff can be prevented from bringing more than one action.

(138) (1973) 1 ACTR 6; 22 FCR 181.

(139) See McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513; Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6 at 7-8; 22 FLR 181 at 182-184; Jones v TCN Channel Nine Pty Ltd (1992) 26 NSWLR 732.

‘‘where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.’’ (145)

63. For present purposes, it is unnecessary to explore the circumstances in which an estoppel will be held to arise in consequence of a failure to raise a matter in earlier proceedings. Rather, it is important to note that the principle as stated in Henderson v Henderson stems from the nature of judicial power. The purpose of judicial power is the final determination of justiciable controversies and such controversies are not finally determined unless all issues involved in a controversy are submitted for determination or, if they are not, are treated as no longer in issue.

(144) Anshun (1981) 147 CLR 589 at 598, per Gibbs CJ, Mason and Aickin JJ. (145) Henderson (1843) 3 Hare 100 at 115 [67 ER 313 at 319].

(146) See Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

68. History of the proceedings: Hedigan J (the primary judge) dismissed a summons by which the appellant had sought an order for the stay or dismissal of proceedings brought against it by the respondent (149). This appeal comes from the refusal of the Court of Appeal of the Supreme Court of Victoria (150) to grant leave to the appellant to appeal from the judgment of the primary judge. The Court of Appeal concluded that the decision was not attended by sufficient doubt to warrant its intervention (151). It confirmed the judgment of the primary judge. The attention of this Court has therefore been addressed to that judge’s reasons.

69. Three issues: The appeal concerns issues that commonly arise where a non-resident foreign party seeks a stay, or the setting aside, of process that brings it involuntarily before an Australian court (152):

147. Collins, The Law of Defamation and the Internet (2001), p v (Foreword); cf American Civil Liberties Union v Reno (1996) 929 F Supp 824 at 844 [81] (E D Pa).

148. Reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ at 594-595 [1]-[3] (the joint reasons); reasons of Callinan J at 643-644 [169]-[172].

Kirby J

separate and distinct, they are closely related. One vital question, relevant to the answer to each issue, is where the cause of action, identified by the respondent, arose. The respondent sues for defamation by the appellant. He submits that the essential elements of the tort of defamation are: (1) publication; (2) in a form comprehended by a third party; (3) causing damage to the plaintiff which, in the case of proof of publication of defamatory matter, is presumed (153). Upon this basis the respondent asserts that his proceedings were ‘‘founded on a tort committed within Victoria’’ (154).

153. Berezovsky v Michaels [2000] 1 WLR 1004 at 1012; [2000] 2 All ER 986 at 993.

154. Supreme Court Rules (Vict) (SCR), r 7.01(1)(i). The relevant rule is set out in the joint reasons at 607 [46].

159. Duke of Brunswick v Harmer (1849) 14 QB 185 [117 ER 75].

160. Robertson & Nicol, p 102.

161. cf Jenner v Sun Oil Co Ltd [1952] 2 DLR 526 at 540.

162. New York Times Co v Sullivan (1964) 376 US 254.

167. State Government Insurance Commission v Trigwell (1979) 142 CLR 617 at 633.

168. Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 402; Jones v Bartlett (2000) 205 CLR 166 at 237-238 [244], 240-241 [252]; cf Dietrich v The Queen (1992) 177 CLR 292 at 312, 323.

The features of the Internet and the World Wide Web

78. The Internet: The history of the Internet, its ubiquity, universality and utility have been described in the reasons of many courts in the United Kingdom (175), the United States (176), Canada (177), Australia (178) and elsewhere (179). In the expert evidence before the primary judge in this case, there was no relevant dispute about the main features of the Internet and of the World Wide Web specifically. Some additional evidence relevant to those features was placed before this Court, without objection, in support of the application of a number of organisations which were granted leave to intervene (180). Although the supporting affidavits were not part of the record in the appeal, and

175. Godfrey v Demon Internet Ltd [2001] QB 201 at 204-205; Bonnier Media Ltd v Smith (unreported; Court of Session (Scotland); 1 July 2002), per Lord Drummond Young.

176. Zippo Manufacturing Co v Zippo Dot Com Inc (1997) 952 F Supp 1119 at 1123- 1124 (W D Pa); American Civil Liberties Union v Reno (1996) 929 F Supp 824 at 830-844 [1]-[81] (E D Pa).

cannot be so treated (181), most of the features of the Internet there described confirm the evidence given at trial. They are, in any case, readily ascertainable from standard works that describe the Internet’s basic elements.

79. It is important to consider these features because they afford the foothold for the appellant’s argument that the Internet is such a new and different medium of human communication that it demands a radical reconceptualisation of the applicable common law, specifically with respect to the tort of defamation.

Newspapers Ltd; The New York Times Co; News Ltd; Time Inc; Tribune Co; The Washington Post Co; Yahoo! Inc and John Fairfax Holdings Ltd.

181. Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 107-110, 112-113; Mickelberg v The Queen (1989) 167 CLR 259 at 265-271, 274-275, 298-299; Eastman v The Queen (2000) 203 CLR 1 at 12-13 [16]-[18], 24 [68], 51 [158], 63 [190], 96-97 [290].

either by the publisher concerned or by a third party contracted by the publisher to provide ‘‘web hosting’’ services.

82. An Internet user may access the information maintained on a website provided the user knows, or can ascertain, the Internet address of the relevant website. By entering that address into the user’s web browser, the user will be directed to that website. Once the user locates the website in this way, the user may be required to take additional steps to access information stored on the web server associated with the website. Thus, to post an article to a website, a publisher must prepare a version in digital (computer readable) format. Such an article becomes part of the digital collection of data known as a web page. Such a web page is transmitted to a web server. It, along with the other web pages, comprises the website.

86. In addition to these difficulties of controlling access to a website by reference to geographic, national and subnational boundaries, the Internet has recently witnessed a rapid growth of technologies (anonymising technologies) that enable Internet users to mask their identities (and locations). By reason of these developments, the provision of cost effective, practical and reliable identity verification systems, that could afford a universally reliable recognition of the point of origin of an Internet user, has not emerged. This is why the nature of Internet technology itself makes it virtually impossible, or prohibitively difficult, cumbersome and costly, to prevent the content of a given website from being accessed in specific legal jurisdictions when an Internet user in such jurisdictions seeks to do so. In effect, once information is posted on the Internet, it is usually accessible to all Internet users everywhere in the world. Even if the correct jurisdiction of an Internet user could be ascertained accurately, there is presently no adequate technology that would enable non-subscription content providers to isolate and exclude all access to all users in specified jurisdictions.

87. These special features of the Internet present peculiar difficulties for the legal regulation of its content and, specifically, for the exclusion of access in defined jurisdictions. Such difficulties may have a bearing on the question of whether a particular jurisdiction has an advantage in regulating content published and accessed on the Internet (185). This does not mean (and no party before the Court suggested) that the Internet is, or should be, a law-free zone. However, in considering what the law, and specifically the common law of Australia, should say in relation to the contents of the Internet, particularly with respect to allegedly defamatory material on a website, the appellant argued that regard had to be taken of these elementary practical features of the technology.

influence the continued relevance or reformulation of established legal principles (186). The appellant contested the respondent’s suggestion that the Internet was merely the latest of many technologies that have enhanced the spread of information. It submitted that the Internet involved a quantum leap of technological capacity and the ubiquitous availability of information that demanded a root and branch revision of some of the earlier legal rules in order to take into account the Internet’s special features.

90. The appellant accepted that it was requesting this Court to take a large step in re-expressing the principles of the common law. However, it argued that the Court should seek a bold solution because of the revolutionary character of the technology that had produced the need to do so. Because the common law adapts even to radically different environments, this Court was asked to be no less bold than the technologists who had invented and developed the Internet. We were reminded of Judge Learned Hand’s observation (187):

187. Hand, ‘‘The Contribution of an Independent Judiciary to Civilisation’’, in Winters (ed), Handbook for Judges (1975) 43, at p 44.

(188) (1994) 182 CLR 104 at 142-143.

94. Upon one available interpretation, r 7.01 applies in the present case wherever it might be held that the tort of defamation has occurred. If this is a good argument it is unnecessary, in resolving the first issue (jurisdiction), to address any of the foregoing large questions about the Internet. If the respondent’s point on the construction of the nominated rule is valid, he has demonstrated jurisdiction in any case. This conclusion would get the respondent over the first hurdle.

95. The primary judge held that the respondent had established jurisdiction of the Supreme Court of Victoria on each of the two provisions of r 7.01(1) upon which he relied, namely pars (i) and (j). Each of those paragraphs was referred to in the endorsement on the originating process. The primary judge held that the proceeding ‘‘was founded on a tort committed within Victoria and alternatively the proceeding is brought in respect of damage suffered wholly or partly in Victoria caused by a tortious act and omission occurring in New Jersey’’ (191).

Kirby J

journal, containing the matter complained of, had been sold on news stands in Victoria.

(192) Gutnick [2001] VSC 305 at [6].

193. cf Williams, ‘‘The New Supreme Court Rules’’, Law Institute Journal, vol 58 (1984) 678, at pp 679-680.

103. As a result of this conclusion, the respondent enjoys the advantage of properly constituted proceedings in an Australian court. The objections that the appellant is not present in this country, has no office or assets here (as I would be prepared to infer); has only minimal commercial interest in the sale of Barron’s magazine or online services in Victoria or to Australians; and publishes them principally for the benefit of, and sale to, United States readers, are considerations irrelevant to the issue of jurisdiction once the propounded long-arm rule is found valid and applicable.

104. It remains to decide whether the foregoing considerations, or any of them (and any other considerations) are relevant to the remaining issues which are presented in these proceedings: First, the appropriate identification of the place of the tort and consequently the applicable law; and secondly, whether the primary judge’s discretion miscarried on the issue of the appropriateness or otherwise of the Victorian forum for the determination of the cause of action. For the resolution of those issues, it is now necessary to address in more detail the appellant’s submission that the conventional requirements of the law of

defamation should be altered to recognise that the publication of the allegedly defamatory material on the Internet, and therefore the tort of defamation, occurred in this case in New Jersey (or New York) in the United States.

Choice of law: the law of the place of the wrong

CLR 503.

(199) (2002) 210 CLR 491 at 521 [81]; cf at 508-509 [39], quoting Anderson v Eric Anderson Radio & TV Pty Ltd (1965) 114 CLR 20 at 41.

(204) Zhang (2002) 210 CLR 491 at 537-538 [129]-[130].

205. Zhang (2002) 210 CLR 491 at 539 [133]; cf Juenger, ‘‘Tort Choice of Law in a Federal System’’, Sydney Law Review, vol 19 (1997) 529, at p 531.

109. For its part, the appellant, supported by the interveners, invited this

Court to reformulate, at least in the context of publications on the Internet, the legal ingredients of the tort of defamation; and to adopt, at least in respect of such publications, a single publication rule expressed in terms of the place of ‘‘uploading’’. Alternatively, the appellant argued the place of the wrong for choice of law purposes should be ascertained by reference to where in substance the cause of action rose (208). If that question were asked in the present case, the appellant suggested that the answer would be New Jersey (or New York), not Victoria.

(1990) 171 CLR 538 at 567.

Kirby J

113. First, the Internet is global. As such, it knows no geographic boundaries. Its basic lack of locality suggests the need for a formulation of new legal rules to address the absence of congruence between cyberspace and the boundaries and laws of any given jurisdiction (209). There are precedents for development of such new legal rules. The Law Merchant (lex mercatoria) arose in medieval times out of the general custom of the merchants of many nations in Europe. It emerged to respond to the growth of transnational trade. The rules of the common law of England adapted to the Law Merchant. They did so out of necessity and commonsense (210).

114. Effective legal responses: The general principle of public inter- national law obliging comity in legal dealings between states suggests that arguably, with respect to the legal consequences of the Internet, no jurisdiction should ordinarily impose its laws on the conduct of persons in other jurisdictions in preference to the laws that would ordinarily govern such conduct where it occurs. At least this should be so unless the former jurisdiction can demonstrate that it has a stronger

116. The International Covenant of Civil and Political Rights also

provides that ‘‘[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation’’. And that ‘‘[e]veryone has the right to the protection of the law against such interference or attacks’’ (215). Accordingly, any development of the common law of Australia, consistent with such principles (216), should provide effective legal protection for the honour, reputation and personal privacy of individuals. To the extent that our law does not do so,

215. ICCPR, Arts 17.1 and 17.2.

216. cf Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42.

119. The urgency of a new rule: To wait for legislatures or multilateral international agreement to provide solutions to the legal problems

217. Pursuant to the first Optional Protocol to the ICCPR. See Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42.

Journal of Contract Law, vol 17 (2001) 151.

presented by the Internet would abandon those problems to ‘‘agonizingly slow’’ processes of lawmaking (222). Accordingly, courts throughout the world are urged to address the immediate need to piece together gradually a coherent transnational law appropriate to the ‘‘digital millennium’’ (223). The alternative, in practice, could be an institutional failure to provide effective laws in harmony, as the Internet itself is, with contemporary civil society — national and international. The new laws would need to respect the entitlement of each legal regime not to enforce foreign legal rules contrary to binding local law or important elements of local public policy (224). But within such constraints, the common law would adapt itself to the central features of the Internet, namely its global, ubiquitous and reactive characteristics (225). In the face of such characteristics, simply to apply old rules, created on the assumptions of geographical boundaries, would encourage an inappropriate and usually ineffective grab for extra-territorial jurisdiction (226).

224. eg, Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30.

225. Bonnier Media Ltd v Smith (unreported; Court of Session (Scotland); 1 July 2002) at [17].

Reasons for declining an Internet-specific single publication rule

123. Limits to judicial innovation: The foregoing considerations present a persuasive argument for the formulation of a new rule of the common law that is particular to the publication of allegedly defamatory matter on the Internet. For myself, I do not regard them as mere slogans (229). They present a serious legal issue for decision. Judges have adapted the common law to new technology in the past (230). The rules of private international law have emerged as a result of, and remain alive to, changes in the means of trans-border communication between people. The Internet’s potential impact on human affairs continues to expand and is already enormous. Later judges, in a position to do so, can sometimes reformulate the law in order to keep it relevant and

just. Specifically they may re-express judge-made rules that suit earlier times and different technologies. For a number of reasons I have concluded that this Court would not be justified to change the rules of the Australian common law as would be necessary in this case to respond to the submissions of the appellant.

124. First, a starting point for the consideration of the submission must be an acceptance that the principles of defamation law invoked by the respondent are settled and of long standing. Those principles are:

232. Webb v Bloch (1928) 41 CLR 331 at 363; Lee v Wilson (1934) 51 CLR 276 at 287; Evans & Co v Stein & Co 1904 12 SLT 462 at 463; Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 191-192; Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 177; Holdsworth, A History of English Law, 2nd ed (1937), vol 8, p 371; Gatley on Libel and Slander, 9th ed (1998), pp 127-129 [6.1].

233. R v Carlisle (1819) 1 Chitty 451 at 453. This was also originally the law in the United States: Ogden v Association of the United States Army (1959) 177 F Supp 498 at 499-500; cf Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 535; Gatley on Libel and Slander, 9th ed (1998), p 154 [6.30]; Dicey and Morris on the Conflict of Laws, 13th ed (2000), pp 1567-1568 [35- 136].

126. The need for legislative reform: There are special difficulties in achieving judicial reform of the multiple publication rule in Australian law, even if one were convinced that it should be reformed to meet the technological characteristics of the Internet. Legislation in at least one Australian State is expressed in terms that assume the existence of the multiple publication rule (237).

127. In Australian Broadcasting Corporation v Waterhouse (238), Samuels JA stated his opinion that a single publication rule could only be introduced throughout Australia by statute. Whilst that remark was not essential to his Honour’s reasoning, was made before the particular features of the Internet were known and does not bind this Court, it reflects the recognition of a judge with much experience in defamation law of the limits that exist on judicial alteration of basic principles to fit the apparent needs of a new technology. Because of such limits other means have been adopted within Australia to reduce the inconvenience of the multiple publication rule (239). Some, or all, of these would be available in the case of an Internet publication to reduce the suggested inconvenience of that rule.

237. Defamation Act 1974 (NSW), s 9(2), (3). See Australian Law Reform Commission, Unfair Publication: Defamation and Privacy, Report No 11 (1979), p 60 [112].

(238) (1991) 25 NSWLR 519 at 537.

comprehension by anyone (apart from the author), the place and law of ‘‘publication’’ was fixed by the jurisdiction in which the text was first uploaded (as the appellant proposed) or in which the publisher last exercised control over dissemination (as the interveners proposed). The respondent complained that either of these rules, if substituted for the present law, would lead to ‘‘chaos’’. Even allowing for an advocate’s overstatement, there are indeed difficulties. Publishers could easily locate the uploading of harmful data in a chosen place in an attempt to insulate themselves from defamation liability. They might choose places with defamation laws favourable to publishing interests. Just as books are now frequently printed in developing countries, the place of uploading of materials onto the Internet might bear little or no relationship to the place where the communication was composed, edited or had its major impact.

131. As if to recognise this problem, the appellant postulated various exceptions to its criterion of the place of uploading. These included exceptions for ‘‘adventitious or opportunistic’’ conduct; or conduct

[2000] 2 All ER 986 at 993, 1005, 1007-1008; cf Robertson & Nicol, p 103. See

also Loutchansky v Times Newspapers Ltd [Nos 2-5] [2002] QB 783 at 814-818

133. Attractions of alternative formulations: A connected issue demands consideration. If the place of uploading were adopted as the place of publication which also governs the choice of applicable law, the consequence would often be, effectively, that the law would assign the place of the wrong for the tort of defamation to the United States. Because of the vastly disproportionate location of webservers in the United States when compared to virtually all other countries (including Australia) this would necessarily have the result, in many cases, of extending the application of a law of the United States (and possibly the jurisdiction and forum of its courts) to defamation proceedings brought by Australian and other foreign citizens in respect of local damage to their reputations by publication on the Internet (244). Because the purpose of the tort of defamation (as much in the United States as in Australia) is to provide vindication to redress the injury done to a person’s reputation (245), it would be small comfort to the person wronged to subject him or her to the law (and possibly the jurisdiction of the courts) of a place of uploading, when any decision so made would depend upon a law reflecting different values and applied in courts unable to afford vindication in the place where it matters most.

134. At least in the case of the publication of materials potentially

normally be that of the place where the person was ordinarily resident’’ (247). In its subsequent report on choice of law, the ALRC concluded that ‘‘residence is the best option for a choice of law rule for defamation’’ (248). The ALRC went on to recommend that it was ‘‘unnecessary to qualify residence as ‘usual’ or ‘habitual’ for the purposes of this rule, since to do so might take the rule further away from the place of loss of reputation’’ (249).

135. In his reasons in Australian Broadcasting Corporation v Waterhouse (250), proposing the need for legislative reform of defamation law within Australia, Samuels JA suggested much the same. He said that the criterion of the habitual residence of the subject of the publication would present an objective criterion. It would discourage forum shopping. It would also give ‘‘effect to the expectations of the parties’’ on the basis that the place of residence would be where ‘‘[a] plaintiff will generally suffer most harm’’ (251). His Honour’s analysis shows how deeply embedded in the concept of the tort of defamation are the ideas of proof of damage to reputation; comprehension of the matter complained of; and acknowledgment that the sting is felt each time a publication is repeated.

(250) (1991) 25 NSWLR 519.

251. Waterhouse (1991) 25 NSWLR 519 at 539.

137. Change exceeds the judicial function: Although, therefore, the appellant (and interveners) have established real defects in the current Australian law of defamation as it applies to publications on the Internet, their respective solutions for altering the elements of the tort and expressing it in terms of conduct substantially in the control of the publisher or its agents (and out of the control of the plaintiff whose reputation is alleged to have been damaged) are too simplistic.

138. It would exceed the judicial function to re-express the common law on such a subject in such ways. This is a subject of law reform requiring the evaluation of many interests and considerations that a court could not be sure to cover. Subject to what follows, I, like the other members of this Court, do not think that a single publication rule should be adopted in terms of the place of uploading as the place of publication of allegedly defamatory material on the Internet, which would also govern the choice of applicable law.

255. eg, Family Law Amendment (Child Protection Convention) Act 2002 (Cth), implementing the ratification of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children done at The Hague on 19 October 1996, [1996] ATSD 4416.

256. Distillers [1971] AC 458 at 468; Voth (1990) 171 CLR 538 at 567; cf Davis v Costa-Gavras (1984) 580 F Supp 1082.

143. Lord Pearson’s formulation appears, at least on the face of things, to assist the appellant. This is because it focuses attention on the act of a defendant. Thus, it can be said that in this case the last act of the appellant that gave the respondent his cause of action took place at the point of uploading, which occurred in New Jersey. Furthermore, the appellant and the interveners submitted that the ‘‘substance’’ or ‘‘common sense’’ criterion applied to the subject matter of the present proceedings would clearly assign the place of the alleged wrong to New Jersey (or New York (262)). That was where the matter

(258) Zhang (2002) 210 CLR 491 at 517 [66], cf 532 [115]. Also Pfeiffer (2000) 203

Kirby J

complained of was composed, finally edited and uploaded on the appellant’s website to be made available all over the world. The place where the overwhelming majority of those who could be expected to (and did) have access to the matter resided, was also in the United States. As well, that was the place where any law addressed to changing conduct (and sanctioning a civil wrong) would enjoy its principal impact. It represented the place where the actors involved, who made the material available to the world would, normally, have access to legal advice and be subject to laws that they could reasonably be expected to ascertain and comply with.

146. Even if one were to accept that Distillers provides the applicable test for identifying the place of the tort for choice of law purposes, in

262. cont

(266) (1992) 38 FCR 303 at 314.

267. Cheshire and North, Private International Law, 11th ed (1987), p 540; cf Distillers [1971] AC 458 at 469.

150. Even if, for the purposes of the choice of law rule in Zhang, the right approach to localisation of the tort is ‘‘when the tort is complete, to look back over the series of events constituting it and ask the

268. See Distillers [1971] AC 458 at 465-466. (269) Voth (1990) 171 CLR 538 at 569.

where the plaintiff has a substantial reputation in more than one legal jurisdiction and seeks to recover for the damage in all such jurisdictions in a single proceeding. In such a case, potential liability in defamation for the publication of material relating to such a person on the Internet may indeed have a chilling effect on free speech merely because one of those jurisdictions has more restrictive defamation laws than the others. This approach could subject Australian defendants to the more restrictive defamation laws of foreign jurisdictions (272). However, such problems are the result of the absence of uniformity in defamation laws, combined with an ability to access and broadcast material across national boundaries (which is not limited to the Internet) and the absence of international treaties or reciprocal laws to govern those issues. Problems of a similar nature will arise whatever

270. Distillers [1971] AC 458 at 468; see also the discussion by the Court of Appeal in Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 at 441-447.

154. True, some readers of Barron’s Online, or Barron’s magazine with access to the appellant’s website in New Jersey (or in New York), would have known of the respondent. Arguably, an action based on the tort of defamation could therefore also be brought in those jurisdictions of the United States. However, in this case it could not be suggested that the respondent had resorted to Victoria only in order to invoke the process of its courts or in an exercise of forum shopping. So far as damage to his reputation was concerned, Victoria, as the place of his residence, was where most such damage would be done, rather than amongst business, religious or other acquaintances in North America or with the very large number of strangers there who might read about the respondent in the appellant’s Internet publications.

155. Importantly, in the proceedings before the primary judge the respondent confined his claim to the recovery of damages and the vindication of his reputation in Victoria. He also undertook not to bring proceedings in any other place. The conclusion is therefore overwhelming that the proceedings in the Supreme Court of Victoria were based on a local cause of action, and the applicable law in those proceedings would be the defamation law of Victoria. It follows that no error has been shown in the conclusions of the primary judge in this respect.

Kirby J

whether the court in which the proceedings are pending is the natural forum for the trial or whether there is another forum that is ‘‘more appropriate’’ (274). However, although the formulation by the House of Lords has found favour in most Commonwealth jurisdictions, and is more harmonious with the rules of public international law respectful of comity between nations and their courts, I must accept that this Court has adopted an approach more defensive of the exercise of properly invoked jurisdiction by Australian courts (275).

(274) Zhang (2002) 210 CLR 491 at 524 [94].

(275) Zhang (2002) 210 CLR 491 at 524-525 [93]-[95].

(280) cf Voth (1990) 171 CLR 538 at 564-565.

(281) Gutnick [2001] VSC 305 at [102]-[104].

The outcome: a result contrary to intuition

164. The dismissal of the appeal does not represent a wholly satisfactory outcome. Intuition suggests that the remarkable features of the Internet (which is still changing and expanding) makes it more than simply another medium of human communication. It is indeed a revolutionary leap in the distribution of information, including about the reputation of individuals. It is a medium that overwhelmingly benefits humanity, advancing as it does the human right of access to information and to free expression. But the human right to protection by law for the reputation and honour of individuals must also be defended to the extent that the law provides.

Callinan J

against some of those difficulties which, in appropriate cases, will obviate or diminish the inconvenience of distant liability. Moreover, 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.

Facts

169. The appellant publishes for profit the Wall Street Journal, a daily financial newspaper, and Barron’s, a weekly magazine, which is also concerned with financial matters. The edition of Barron’s dated Monday, 30 October 2000, but which was available publicly two days earlier, contained an article by a journalist working for the appellant, Bill Alpert, headed ‘‘Unholy Gains’’ and sub-headed ‘‘When stock promoters cross paths with religious charities, investors had best be on guard’’. A large photograph of the respondent appeared on the first page of the magazine. The article, of about 7,000 words, also contained photographs of other persons including Mr Nachum Goldberg. Barron’s has a large circulation in the United States. Altogether, it was likely that 305,563 copies of the magazine were

172. A detailed discussion of various of the respondent’s religious and political activities and business dealings follows. One paragraph of the article claims that an intercepted communication from the convicted tax evader was taken by Australian prosecutors to mean that the respondent was the former’s ‘‘biggest money-laundering cus- tomer’’ (289).

The proceedings in the Supreme Court of Victoria

289. Alpert, ‘‘Unholy Gains’’, Barron’s, 30 October 2000, p 30.

Callinan J

‘‘(a) The [appellant] is a large corporation listed on the New York Stock Exchange with its headquarters at 200 Liberty Street, New York. The [appellant’s] principal area of business is publication. The [appellant] publishes, amongst other things, ‘Barron’s’ and the ‘Wall Street Journal’, both in print and as on-line services. In 1999 the [appellant’s] revenue was US$2 billion and its net income was US$272 million.

2. At all relevant times the [appellant] published the internet service ‘Barron’s Online’ as a subscription service for profit and published its journal ‘Barron’s’ for profit.

175. Another paragraph of the respondent’s pleading contained the following allegations:

‘‘The publication of the article in Victoria . . . was the intended consequence, alternatively the natural and probable consequence of the following acts of the [appellant] —

5. transferring the file containing the article from New York to the [appellant’s] server in South Brunswick, New Jersey;

6. ) placing the file containing the article onto the [appellant’s] web servers in New Jersey;

178. His Honour rejected all of the appellant’s arguments and dismissed its application. The appellant applied for leave to appeal to the Court of Appeal of Victoria. Buchanan JA and O’Bryan A-JA who constituted that Court also rejected the appellant’s arguments. Their Honours said:

‘‘The authorities establish that defamatory material is published at the time and in the place where it is made manifest in a form capable of being comprehended by a third party. That is sufficient to dispose of this case, although we think that publication is not constituted by delivery without comprehension. The principle has been applied to speech, writing, television, radio and telephone. For the most part those authorities pre-date the internet, but in our view the established principles are appropriate to this new form of communication.

179. Leave was therefore refused on the basis that the trial judge’s decision was plainly correct.

The appeal to this Court

(292) (1928) 41 CLR 331 at 363-364.

(293) 5th ed (1891), p 439.

183. The appellant adopted the criticism of the application of traditional

(294) (1830), vol 2, p 29.

184. I disagree. The most important event so far as defamation is concerned is the infliction of the damage, and that occurs at the place (or the places) where the defamation is comprehended. Statements made on the Internet are neither more nor less ‘‘localized’’ than statements made in any other media or by other processes. Newspapers have always been circulated in many places. The reach of radio and television is limited only by the capacity of the technology to transmit and hear or view them, which already, and for many years, has extended beyond any one country. In any event, a ‘‘publisher’’, whether on the Internet or otherwise, will be likely to sustain only nominal, or no damages at all for publication of defamatory matter in a jurisdiction in which a person defamed neither lives, has any interests, nor in which he or she has no reputation to vindicate. Furthermore, it may be that an action inadvisably brought in such a jurisdiction might be met by a finding that the jurisdiction is not a convenient or appropriate forum (298).

185. The appellant argued that the respondent, having set out to make

countries, they can hardly expect to be absolved from compliance with the laws of those countries. The fact that publication might occur everywhere does not mean that it occurs nowhere. Multiple publication in different jurisdictions is certainly no novelty in a federation such as Australia.

187. The appellant invited the Court to prefer, in effect, a United States jurisdiction to an Australian one because the latter would deprive it of the constitutional protection available in the former. This was the essence of one of the respondent’s arguments in Regie Nationale des Usines Renault SA v Zhang (299), that he might be deprived of legitimate juridical advantages available to a plaintiff in New South Wales if he were compelled to sue elsewhere. I do not think my opinion there, to which I would adhere here, was affected by my dissent in that case. In Zhang I said (300):

(299) (2002) 210 CLR 491.

300. Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at 568 [206].

‘‘In a word, what the Constitution says, as interpreted by today’s Court, is that one idea is as good as another so far as the law is concerned; only the omnipotent individual may judge.’’ (Original emphasis.)

190. Quite deliberately, and in my opinion rightly so, Australian law places real value on reputation, and views with scepticism claims that it unduly inhibits freedom of discourse. In my opinion the law with respect to privilege in this country, now and historically, provides an appropriate balance which does justice to both a publisher and the subject of a publication.

304. Duke of Brunswick v Harmer (1849) 14 QB 185 [117 ER 75].

305. See, eg, Defamation Act 1889 (Q), ss 25-27; Defamation Act 1957 (Tas), ss 26, 27; Defamation Act 1974 (NSW), s 36; Emmens v Pottle (1885) 16 QBD 354 at 357, per Lord Esher MR; at 358, per Bowen LJ; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 585-586, per Brennan CJ, Dawson and Toohey JJ; at 592- 593, per Gaudron J; at 618-619, per Gummow J.

197. Each publication under current law gives rise to a separate cause of action (308). This is entrenched in Australian and English law. The principle was recently confirmed by the English Court of Appeal (309). Samuels JA rightly observed in Australian Broadcasting Corporation v Waterhouse (310), a single publication rule could only be introduced throughout Australia by statute.

198. As Hedigan J held, the torts of libel and slander are committed when and where comprehension of the defamatory matter occurs (311). The rules have been universally applied to publications by spoken

311. Webb v Bloch (1928) 41 CLR 331; Lee v Wilson (1934) 51 CLR 276; Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364; Beitzel v Crabb [1992] 2 VR 121; Gambrill v Schooley (1901) 48 A 730.

Callinan J

313. Bata v Bata [1948] WN 366.

314. Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6; 22 FLR 181;

(319) Australian Law Reform Commission, Choice of Law, Report No 58 (1992), p 57 [6.54].

Internet publications. The consequence, if the appellant’s submission were to be accepted would be to confer upon one country, and one notably more benevolent to the commercial and other media than this one, an effective domain over the law of defamation, to the financial advantage of publishers in the United States, and the serious disadvantage of those unfortunate enough to be reputationally damaged outside the United States. A further consequence might be to place commercial publishers in this country at a disadvantage to commercial publishers in the United States.

Solicitors for the appellant, Gilbert & Tobin. Solicitors for the respondent, Schetzer, Brott & Appel. Solicitors for the interveners, Blake Dawson Waldron.

JDM