Opening up the libel boundaries

There is no need to panic about the libel action in Australia, argues technology consultant Bill Thompson

The Australian High Court's decision that businessman Joseph Gutnick can sue Dow Jones, the publishers of the Wall Street Journal, for libel has led to an outbreak of mass punditry.

Such media frenzy has not been seen online since the French courts tried to stop Yahoo from selling Nazi memorabilia to French citizens.

To read some of the more intemperate postings on weblogs, news sites and e-mail lists, one might think that every online author was about to hauled off to one repressive regime or other to face trial and imprisonment for saying nasty things about famous, influential or important people.

In fact all that has happened is that the Australian court has reaffirmed a well-established principle in libel law - what counts is not the place where the libel is written, but the place where it is published.

Intelligent argument

Businessman Joseph Gutnick brought the action

The judges have considered the arguments in a careful, well-measured and, to my untrained eye, legally consistent way. In so doing they have actually clarified the issue for anyone posting material on a website.

I was struck by how well-written and intelligent the judgement was.

These are people who understand and use the net, who are familiar with how it works and what it does, and who are applying their legal understanding to the question raised.

In the end they decided to apply common-sense to their decision, instead of just going along with what most broadcasters, newspaper and magazine publishers and journalists would like to hear.

Dow Jones sells subscriptions in Australia, it advertises in Australia and so it publishes in Australia, wherever its servers are located.

Hence the fuss.

However, things are not nearly as bad as they have been presented. For one thing, it was a judgement made under the law of the Australian State of Victoria, and although it will have an impact on all countries that follow English law, it is not binding.

Famous cases

Different countries do things in different ways, and these differences will remain.

We will not see racketeering landlords who are exposed in the Cambridge Evening News taking their case to the Melbourne courts just because the paper has a website visible in Australia

Victorian law also has a specific test before defamation proceedings can start. The person complaining of being libelled must have a reputation to lose in the state.

This means, quite simply, that I would be unlikely to be able to sue for libel over there because nobody has heard of me.

So we should not believe, as some have claimed, that this ruling allows anyone who feels like it to head to Melbourne and start suing, unless they are famous everywhere, in which case there are probably many other countries they could sue in too.

We will not see racketeering landlords who are exposed in the Cambridge Evening News taking their case to the Melbourne courts just because the paper has a website visible in Australia.

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Any editor will agree that if a publication decides to say something which could result in a libel claim, then it should be aware of potential legal challenges, wherever they may come from.

This judgement does not mean that every country's libel law has to be taken into account.

But before you publish something controversial about a named individual, you should at least consider the libel law in the country where that person is based or has their business.

Why should that be such a problem?

It might be a lot easier for the publishers and e-commerce sites if they can claim that the law of the country or state where their server is located is all that matters, but that does not mean it is the right approach.

Within Europe, legislation on e-shopping accepts this principle. But for publishers of content it is a lot less clear whose interests should come first - those of the publisher or those of the people at the receiving end.

There is also a big difference between making efforts to publish material in a country and not making efforts to stop material being available.

Think carefully

Dow Jones was accepting subscriptions from Australians, advertising in Australia and doing the sort of things online that, if they applied to a printed magazine, would definitely constitute publishing.

Being accountable for what you write and say is a core principle of journalism

This is not the same as having a weblog or e-zine sitting on a public server which does not filter incoming requests.

After all, the publishers of a newspaper would not consider it reasonable if they were sued when the only copy of the paper in the country was carried in by a tourist. The Victorian judgement does not imply that this should change.

Some claim that the case will have a chilling effect on web publishing. But it can hardly be compared with the damage done by record companies and the movie industry in complaining about, and removing, fan sites and material which allegedly infringed copyright.

Perhaps it is only because this case will force journalists and wealthy media corporations to think more carefully about what they say online that they are complaining so loudly.

Being accountable for what you write and say is a core principle of journalism.

Yet we seem to find ourselves now claiming to stand outside the law, in defiance of common sense and the principles of natural justice.

As a journalist, I think we should not be complaining so loudly about this judgement but accept it as a necessary side-effect of the increasing acceptance of the web as a publishing medium.

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Bill Thompson is a regular commentator on the BBC World Service programme Go Digital.