Breaking and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
I thought I’d start off today’s column on the Australian Internet libel ruling with a couple of Kangaroo Court jokes, then maybe imply the judges must have taken a bribe or something. Or are brain dead. But after reading more about it, I don’t think that’s such a good idea. I’m in no particular hurry to learn what, exactly, constitutes libel under Australian law. Until Tuesday, that hadn’t really been part of my job description. But since The Recorder‘s “content” is posted on the Internet, and as such, is available to any interested Australian with a Web connection, the court’s decision means we can now be sued there under its definition of libel. And all I know now is that their law is a lot more plaintiff-friendly than ours. But the real reason I won’t bad-mouth the Australian High Court is because I don’t think it did such a bad job. In the absence of an international convention or treaty addressing regulation of and liability for Internet communication, the court’s decision is neither surprising nor all that scary. Some commentators say the sky is falling on a free and unfettered Internet. To hear some tell it, allowing an Australian businessman to sue Dow Jones for libel in his home court puts the First Amendment at the mercy of the most press- and freedom-hating regimes. As a practical matter, though, what it does is tell global publishing powerhouses, like Dow Jones, that when they publish a 7,000-word piece with unflattering assessments of a Down Under mining magnate’s business practices, they can’t hide behind legal concepts that don’t exist there. How is this a novel concept? Companies operating domestically must routinely take into account plaintiff-friendly forums like, say, Mississippi. The Australian court may have even done publishing businesses here a favor. Executives worry most when their liability is uncertain and thus can’t be factored into cost and profit models. At least with respect to Web reports on Australian residents, there’s no more uncertainty. The court has done Internet users around the world a favor, too, in reminding us of the growing need to reach some basic agreements about the regulation and liability individual nations may impose on Internet traffic. There seems to be some consensus on the need for the agreement. The devil, as always, will be in the details. In a piece published Wednesday in the Sydney-based newspaper The Australian, Glenn Harlan Reynolds, a law professor at the University of Tennessee, offered the analogy of how international law accommodated the advent of satellites in the 1950s. At the time, nations had long presumed ownership of the skies above them — an approach that the United States and other countries agreed was unworkable with the launch of Sputnik in 1957. “Spacecraft in orbit were thus regarded as beyond the reach of earthbound law,” Reynolds notes, “and subject only to international space law and the law of the launching state, not that of the nations that they happened to pass over.” Reynolds argues that something similar should govern Internet flyovers. Don’t bet on it. While it’s a useful analogy, Internet traffic isn’t the same as the satellites that soar above the heads of the blithely unaware. Its impact on other nations is far from theoretical. It’s unrealistic to expect other governments to bind themselves and their citizens to our interpretation of our own First Amendment. Businesses and Internet users here have much to gain from setting some basic ground rules, so we should be willing to give a little. If that requires capitulating to libel actions in foreign forums, so be it. The alternative — inaction leading to a patchwork of rules and regulations, and maybe even some international incidents — poses a far greater threat to traditional notions of free speech. Consider Zimbabwe’s prosecution earlier this year of a British reporter on criminal charges of “publishing a falsehood” because of a report in The Guardian available in Zimbabwe only via the Internet. Or consider the French court order forbidding Yahoo from posting Nazi memorabilia for auction because it can be viewed by French users. Yahoo was at the 9th Circuit last week urging it to protect the portal company’s First Amendment rights by blocking enforcement of the French court order. If Yahoo succeeds, maybe Dow Jones can try the same tack in the Australian case. Overruling the courts of other nations will no doubt win us lots of friends. Call me crazy, but there’s got to be a better way. As one of the Australian judges suggested in a concurring opinion, maybe it’s time we figured out what it might be.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.