More hassle for Web publishers

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As if people who publish on the World Wide Web don't have enough to worry about, we now have to contend with the decisions of the High Court of Australia in Dow Jones and Co Inc. v Gutnik [2002] HCA 56, and the UK Court of Appeal in Loutchansky v The Times [2002] 1 All ER 652. Now, you may think that if you don't live in Australia, or have a base of operations in Australia, or trade with Australia, then Gutnick won't affect you. Think again. Gutnick has implications for everyone who operates a Web server, or publishes on the Web, anywhere. Loutchansky, of course, is directly applicable to UK publishers and ISPs.

Gutnick

Gutnick concerns an article published in the on-line version of Barrons Magazine, which is owned by Dow Jones. The article alleged that a certain Mr Gutnick - an Australian citizen - was, in short, a scoundrel and a villain. Now, Dow Jones is a US company, and the Web server for Barrons is located in New Jersey. So when Mr Gutnick sued in Australia for defamation, Dow Jones contended that Australian courts did not have jurisdiction to hear the case. Instead, they claimed, the case should be bought by Mr Gutnick in the USA, where the offending article was 'published' on Dow's Web server. This was a shrewd move by Dow, because US defamation laws are far more friendly to the defendant than Australia's. In general, a mature legal system has to balance the right to freedom of speech with the protection of the reputation of the individual. This is a problem with no easy solution; note in particular that Article 10 of the European Convention on Human Rights grants everyone the right to freedom of expression, but specifically allows this right to be curtailed where it is necessary for the protection of the reputation of the individual. Different countries have settled on different places to draw the line between freedom of expression and defamation. In Australia - and in the UK for that matter - we have drawn that line where it gives priority to protection from defamation. In the US, they have drawn it to favour freedom of speech. In short, a person who has to defend a claim for defamation is going to be happier doing so in the USA, than in Australia or Britain.

So Dow Jones encouraged the Australian courts to decline jurisdiction; but the High Court said no: Dow had published an article about an Australian citizen in Australia, and the case could therefore be heard. In short, they claimed that 'publication' took place at the time and place where the offending article became available on the reader's Web browser, not when it was posted on Dow's Web server.

The actual outcome of Gutnick is not of interest except, of course, to the parties to the case. What is of interest is that a publication made in the USA by a US firm was deemed to be actionable in Australia. What does that mean for ISPs and Web publishers? Well, in the narrow sense it means that whenever we publish anything on a Web server in, say, London, we must give attention to the whether that publication in likely to be defamatory in Australia. How familiar are you with Australian defamation laws? In all likelihood, we must give some thought to effect of Gutnick in any country whose law on defamation is similar to that of Australia (so this applies to companies who operate in, say, the USA whose publications may be defamatory to UK citizens). In a broader sense, the decision reinforces something that Web publishers have always been vaguely aware of, but haven't thought about too deeply because it's too scary: when you publish on the Web, you have potentially to consider the law everywhere on Earth.

This is not a happy thought. Suppose that you are an ISP, and one of your clients publishes an article on your Web server that suggests that Elvis Presley is dead; he's not alive and well and living on the Island of Atlantis with Lord Lucan and Shergar as everyone believes. It turns out that in the small nation state of Lugandavia it's an imprisonable offence to suggest that Elvis is dead. Now, in the UK, ISPs are largely protected by statute from defamation actions arising from the misdeeds of their clients (it's not a blanket protection; you still have to be careful) but that may not be the case in Lugandavia. The authorities there may be quite happy to consider the ISP to be the guilty party. So, one summer you go to Lugandavia for a holiday; on setting foot in the country you're arrested and thrown into prison.

Now we've always known that this was theoretically possible with the Internet. What Gutnick does is to make it more likely that countries will be act on this possibility. So watch out.

Loutchansky

And so we turn to Loutchansky. This case concerned an allegation published in The Times that a certain Mr Loutchansky was involved with the Russian mafia. The allegation was made in the printed newspaper, and on the paper's Web site. To understand the significance of the case, you should be aware that if you publish a libellous statement in print, the victim of the libel must normally pursue a claim within one year (s.4A of the Limitation Act, 1980). The law does not consider it reasonable for a writer or publisher to have to defend statements that he made years in the past. In this case, one of the grounds for defence was that the action was time-barred. Whether Mr Loutchansky was, in fact, libelled is not of wider importance, although of course it's important to him. What is worrisome for Web publishers is the Court's conclusion that information published on the Web site was not subject to the one-year limitation rule. The reasoning for this decision seems to be that each time the defamatory statement was transferred from The Times's Web server to a reader's browser, this constituted a separate act of publication. The Court was invited - as it has been numerous times in the past - to take the same approach to publication law as prevails in the US; that is, there is a 'single publication' that occurs on the very first occasion that the material is made available to the public, and all causes of action must stem from that one event. The Court declined this invitation, as it always has. It remains the law that when you publish something on the Web, publication occurs - in effect - whenever it is read. Thus a claim for defamation never becomes time-barred, and something you published ten years ago can be the subject of a defamation claim.

In Loutchansky, the Court of Appeal stressed the need for 'responsible journalism'; it asserted that whenever new facts about a case come to light, Web publishers must review everything available on their the Web servers in light of these new facts, and amend as appropriate. Web publishers that provide access to archives of their materials going back many years - as The Times does - are going to have a hard time complying with this ruling. Itlaw