Fergus Cassidy

Once more into the reach

"It will certainly be re-established that the net is no different from the regular newspaper" - Joseph Gutnick 10 December, 2002

AND there you have it. Again. Another fine quote and sound byte that brings the upstart internet down a peg or two. Forget all the fancy notions of new media versus old media. The net is apparently no different from television or radio, and it's no different from newspapers. What has brought the latest 'revelation' to light has been the ruling in an Australian court last week. Joseph Gutnick, a mining magnate, won his appeal to have a defamation case heard in his own state.

He claims he was libelled by Barron's and its corporate parent, Dow Jones, and wanted to have the case heard in his home state of Victoria, which has some of the strictest libel laws in Australia. Dow Jones, however, had applied to have the case heard in the United States. It was supported by Amazon.com, Yahoo!, AP, CNN, The New York Times and News Ltd. In Tuesday's verdict, the court ruled that Gutnick's case could be heard in Victoria and ruled against Dow Jones. That case will go ahead some time next year.

Gutnick claimed, and the court agreed with him, that the case should be heard where the damage to his name had occurred. The court said that Victoria "is where the damage to his reputation of which he complains in this action is alleged to have occurred, if it is there that the publications of which he complains were comprehensible by readers". Dow Jones' argument was that the case should be heard where the article was published, in New Jersey.

The immediate response from a spokesperson for some of the publishers involved was: "In a nutshell, what the court said was that there is nothing wrong with an Australian court hauling Dow Jones into Australia to go to court".

He also said that "if that becomes the law of the internet, the problem isn't that individuals will be suing all over the world - though that is a problem. The problem is that rogue governments like Zimbabwe will pass laws that will effectively shut down the internet". Steady on.

It was only a matter of time before this happened. It's the latest in a line of important cases where existing laws run up against the internet. The laws of libel and defamation have now crash-landed onto the net. It's getting the debate started up again between those who believe that the internet is new, but that in time it will fall into line with the rest of the communications media.

Whether it's e-commerce laws, data privacy, patent laws, copyright or trade treaties, time and again people split into camps: those who believe the internet must fit in with existing laws and practices and those who have great anxieties about that process. And that includes yours truly.

I'm just not convinced that certain kinds of laws can be just transferred untouched over to the net. The net, both in its construction and in its use, is a very unique and unprecedented communications tool. There has never been anything like it before. Even still in its infancy, it has caused havoc across a wide range of social and political landscapes. Copyright laws have been called into disrepute by the emergence of Napster and other file-swapping software. Tax laws in the United States have been changed and the threat from network technology has witnessed some of the giants of telecommunications go into a death rattle.

Debate rages about whether software is a language and should be protected as free speech. Other ongoing treaties, such as the Hague Convention on foreign judgments in civil and commercial matters, are endeavouring, retrospectively, to bring common laws up to date for trade purposes. The internet has brought the ability to pursue trade beyond national or continental borders, especially where digitised products such as software are concerned. Beyond existing tax laws and consumer rights legislation. It's either a race to keep up or running to stand still.

That's what has me jumpy with this Australian case. Although the ruling obviously applies only in Australia, it does have serious implications for publishers. And journalists. The Australian case might now make publishers extremely wary of what they publish and that limits journalists. Of the 190 nations in the world that have some sort of libel laws, you can put the rent on it that there are massive differences in interpretation. It's possible to defame the dead in Argentina and in some countries the truth is not necessarily a defence. Earlier this year the Zimbabwean government brought a "publishing a falsehood" claim against a reporter from The Guardian in Britain, whose article was accessible via the internet.

There is a possibility that publishers will go for the lowest common denominator (if they can find one) and use that as a benchmark. It follows on that journalists could see their stories being dropped from the net. Not by journalists themselves, but by over-anxious lawyers worried about being sued in multiple countries.

But far from the prognosis that the net is "no different from the regular newspapers" journalists will continue to use the internet like never before. In the past when a journalist's story or research was "too hot to handle", there was no other available vehicle to get the story out. Now there is and last week's case won't make a blind bit of difference to that. The newspapers and publishing companies might patrol their web sites vigilantly, but that's only one aspect of journalism.

The range of sources and information has expanded beyond belief because of the internet. The immediacy of email, instant messaging and web logs has facilitated enormous sharing of resources. But most importantly of all, the ability and inexpense of communicating through the web will not go way any time soon.

Online libraries, companies offices, patents offices, law libraries and government databases are just some of the sources used that previously were very time consuming, expensive and involved travel. The net is a must-have tool for a lot of journalists. Indeed some well-respected journalists - Dan Gillmor for one - go even further on the effects the internet is having on journalism. He has said and continues to believe that "my readers know more than I do".

The huge range of sources of stories on the internet was initially referred to as "information overload" and then subsequently the idea came that the wildly varying accuracy of stories meant that the medium couldn't be trusted.

But the reader is no longer doomed to passivity. Stories can be checked for authenticity in minutes. Online journalists can now be held directly accountable to those who come across their material. And many, many times it is non-journalists who pass on information and tips through the ubiquity (and sometimes anonymity) of the internet.

The Australian ruling is welcome in terms of moving the discussion along and reviewing laws that have fallen badly out of date. In the words of Lord Bingham of Cornhill, one of Britain's most senior lawyers, who wrote recently that in its impact on the law of defamation, the internet will require "almost every concept and rule in the field... to be reconsidered in the light of this unique medium of instant worldwide communication."

Way to go... er.. M'lud.

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LINKS

Internet libel laws in limbo
A battle is being waged to determine which laws should apply on the Internet. From the Online Journalism Review

Australian court's upside-down Internet ruling
"The judges of the High Court of Australia must be some of the most obtuse people on the planet" ...
Dan Gillmor, Mercury News technology columnist, on the ruling.

USA Rugby's defamation suit against dismissed by Irish courts
In July 2002, the High Court ruled that Ireland was a forum non conveniens for a defamation action taken against an online rugby publication. Interesting parallels with the Australian case. Link