Publication, Innocent Dissemination and the Internet after Dow Jones & Co Inc v Gutnick

Abstract

The High Court of Australia’s landmark decision in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 was the first decision by a final appellate court on the issue of jurisdiction over internet defamation. It raised a range of important issues, such as the meaning of 'publication' for the purposes of defamation, the place of publication, the 'multiple publication' rule and the application of basic principles of conflict of laws to internet defamation. Fundamentally, it turned upon whether existing legal principles, with or without some adaptation, could adequately accommodate the challenges posed by internet technologies. In the intervening years since Dow Jones v. Gutnick, claims involving internet defamation have proliferated, both in Australia and overseas. Considering judicial and legislative developments since Dow Jones v. Gutnick, this article argues that, whilst internet technologies have brought about a revolution in communications, their legal impact in the context of internet defamation has been more modest but nevertheless important. Focusing on the issue of publication, this article argues that the challenges posed by internet technologies have compelled courts and legislatures to reconsider and refine the approaches adopted towards key concepts and issues of defamation law.

Keywords: Tort, Media law, Defamation, Internet, Publication, Publishers, Innocent Dissemination, Internet Service Providers, Search Engines, Liability

JEL Classification: K10, K13, K30