Dow Jones & Company Inc v Gutnick: An Adequate Response to Transnational Internet Defamation?

Abstract

The recent decision of the High Court of Australia in Dow Jones & Co Inc v Gutnick has inspired much controversy. The reaction from media and technology groups has been particularly critical as they see the decision representing a threat to freedom of expression on the Internet and a deterrent to online publication. It has also been suggested that the High Court judgments reflect a peculiarly nationalistic approach to resolving problems with respect to a medium that is fundamentally borderless and aterritorial. More generally, the decision is also highly significant because it represents the first major opportunity for an Australian court to examine the application of the rules of private international law to Internet conduct. While in the United States and Europe there now exists a large body of judicial decisions and legislative activity on the topic, in Australia, until Gutnick, the issues of jurisdiction and choice of law in relation to the Internet remained largely unexplored. The purpose of this article is to assess the adequacy of the approach taken by the High Court according to a number of criteria of adjudicative fairness. Firstly, does the decision treat plaintiffs and defendants with equality in transnational defamation litigation? Secondly, does it effectively advance the objectives of comity between nation states and the proper allocation of jurisdictional competence among national courts? In considering these issues, a number of alternative approaches to that adopted by the Court will also be discussed.