Dow Jones & Co Inc V Gutnick: Negotiating 'American Legal Hegemony' in the Transnational World of Cyberspace
Fitzgerald, Brian, Melbourne University Law Review
[This case note provides an overview of the High Court's landmark decision in Gutnick, concerning defamation on, and jurisdiction over, the Internet. As well as providing a detailed analysis of the judgments and their impact on defamation law and cyberlaw, the case note considers the dominant role of the First Amendment to the United States Constitution in cyberspace. It calls for a negotiation of this dominance by American legal principle in cyberspace and argues for conceptualising a constitutionalism for transnational society implemented by national courts. While seeing the Gutnick decision as inevitable, the case note highlights the limitations enunciated by the High Court and explains how the decision will provide the platform for legal regulation that will allow the distributed nature of the Internet to prosper.]
CONTENTS I Background II Facts and Issues III Decision A Gleeson CJ, McHugh, Gummow and Hayne JJ B Gaudron J C Kirby J D Callinan J E Summary of the Decision IV Impact of the Decision A Limits to the 'Spectre of "Global" Liability' B Development of Defamation Law and Cyberlaw 1 United States Law on Personal Jurisdiction 2 Internet Jurisdiction in Defamation Cases: The United States Approach V Transnational Constitutionalism VI Conclusion
Cyberspace is the epitome of the 'transnational'. (1) Never before have we seen a space in which individuals, corporations, communities, governments and other entities can exist within and beyond the borders of the nation state in such an instantaneous, contemporaneous or ubiquitous manner. At a conceptual level, the High Court's decision in Gutnick (2) provides an interesting background upon which to postulate a constitutionalism for transnational society or, more modestly, a constitutionalism for cyberspace. At the doctrinal level, the decision brings into play interesting questions of cyberlaw (3) and defamation law.
There is sufficient litigation (4) and academic writing (5) dating from at least the mid-1990s to confirm that increasing use of the Internet has vigorously challenged traditional approaches to jurisdiction based on the territorial nature of sovereignty. (6) Jurisdiction as a principle of public and private international law, operating in a context of reasonableness, (7) brings an order to the regulation of transnational activities. It provides a coordination mechanism for determining the process of litigation. (8) Without a concept of jurisdiction, any event, incident or thing could be litigated anywhere.
The advent of the Internet (9) has presented the possibility of jurisdiction being available anywhere the Internet can be accessed. If a defamatory statement is made available on a website, jurisdiction may lie in all the countries where access to that website can be obtained. Such a result substantially weakens the power of jurisdictional rules to coordinate the litigation process adequately.
In order to re-establish and reinforce the traditional role of jurisdiction, United States courts have, from the outset of the Internet revolution, rejected the view that jurisdiction relating to Interact content was available anywhere the material could be accessed. Drawing on established doctrine rooted in the United States Constitution, (10) United States courts explained that jurisdiction would have to be based on something more than mere accessibility, such as the interactive nature of the website (reaching out and touching the jurisdiction) or targeting of, and a harmful effect within, the jurisdiction. (11) These cases dealt predominantly with disputes concerning litigants in different states of the United States, which are regarded as separate legal jurisdictions.
However, the issue is deeper than that. When European countries such as Germany (in the case of pornography) and France (in the case of auctions of Nazi memorabilia) acted to restrict accessibility to the content of United States websites because they offended local law, the cry of 'zoning the Internet' was heard. …