By Pike, George H.
Information Today , Vol. 18, No. 11
Taking about the global advantages of the Internet is almost a cliche at this point. It has given publishers great and small the ability to cost-effectively reach worldwide audiences that were previously unreachable. Librarians and other information consumers benefit in return by having access to a wealth of information resources. Secure access, licensing, and subscriber systems allow commercial exploitation of these resources for the advantage of both producers and consumers worldwide. However, recent court rulings have shown that worldwide access to information can create worldwide headaches for the information industry.
Gutnick v. Dow Jones
On August 28,2001, a court in Victoria, Australia, decided that the Joseph Gutnick v. Dow Jones and Company, Inc. defamation case could proceed in the Australian court system. (The case is available online through the Australasian Legal Information Institute at http://www.austlii.edu.au.) Gutnick, a wealthy Australian businessman, was the subject of an October 2000 article in Barron's (http://www.barrons.com). The article was released in the print edition of the magazine and was immediately published on Dow Jones' Web site (http://www.wsj.com). Both formats were circulated primarily to U.S. customers. While much of the Dow Jones Web site's content is freely available, access to the article was by subscription only.
The article discussed Gutnick and his business practices in a manner that he found not wholly favorable. Gutnick filed a lawsuit for defamation in Australia, arguing that the article injured his reputation in that country. Dow Jones asked that the Australian case be dismissed or moved to the U.S. on the grounds that the article was published in the U.S. for a predominantly U.S. audience.
The Victoria court decided that although only a small number of local readers may have actually seen the article online, the plaintiff's reputation in Victoria could be damaged by their access. Because of this, the court ruled that the suit should proceed in Victoria. (Please note that the court decision did not determine whether the article in fact damaged Gutnick's reputation, only that the case could proceed in Australia.)
A number of issues were immediately raised in the publishing industry. Would publishers have to be concerned about defamation lawsuits in potentially all of the 190 countries that access the Internet? Would that concern translate to publishers limiting access to their resources out of fear of costly remote lawsuits? Would alleged victims of defamation engage in "forum shopping"--i.e., seeking out the most favorable venue for their lawsuits? Would free speech be imperiled?
Slander and Libel
Defamation has long been the great concern of the publishing industry. It's a fairly old tort that dates back to the 13th century. The law of defamation permits an individual to recover damages for injury to his or her reputation. It's generally divided into slander, which is spoken defamation, and libel, which is defamation that occurs in written communication. Libel is more specifically defined as communication that tends to hold a person up to hatred, contempt, or ridicule; lower a person in the estimation of his or her community; or deter others from associating with him or her. Obviously, libel was and is of great concern to the publishing industry, which produces written communication about a number of individuals.
However, in the 1964 New York Times v. Sullivan case (available online from the Legal Information Institute at Cornell University at http://supct.law.cornell.edu/supct), the U.S. Supreme Court (http://www.supremecourtus.gov) ruled that a publisher's First Amendment right to free speech and freedom of the press had to be considered in determining whether that publisher's writings were defamatory. The court decided that the First Amendment prohibited a public official from collecting damages for false and defamatory statements related to his or her official actions unless he or she could show that the statements were the result of a reckless disregard for the facts. …