In cyberspace, information is not free: the Dow Jones decision

By David Grant December 2002

The High Court’s decision to allow Joseph Gutnick to take Dow Jones to court in Victoria has significant implications for freedom of speech on the Internet, argues DAVID GRANT.

The recent High Court ruling that Internet publication occurs at the point where something is read rather than where it is stored has the potential to greatly reduce the number of ideas Australians are exposed to. It could signal, if not the end, then the most important setback to commercial and community publishing since the Internet bubble burst in the late 90s.

As we are constantly reminded, the Internet is particularly novel in that it is borderless – you can obtain information from all over the world, limited only by your imagination and willingness to explore. Repressive regimes devote considerable resources trying to stop individuals entering supposedly infectious channels of information. Just look at China and the blocking of the ABC website, for instance.

What the recent High Court decision does is create the spectre of a controlled Internet with large publishers forced to consider restricting material they publish based on the particular whims of defamation law in particular geographical locations.

If you haven’t noticed, Australia’s defamation laws are in a complete mess. Despite calls for more than twenty years for reform and unification of individual state laws, they are still very different on the level of standards and allowable defences to defamation allegations. The divisions are enshrined within the colonial fancies within the Constitution.

It is so complicated that the publication of Australia’s only national newspaper, The Australian, is undoubtedly lawyer intensive. Which is good if you are a defamation lawyer. What is already a Herculean task for physical publication is made even more unworkable if it is considered that there is a world out there that has its own ideas about what can and can’t be said.

Today I can go to the New York Post online and read stories constructed around a much different standard of defamation liability. In the US, not only does the onus of proof lie with the person making the claim, an action will not succeed unless the defamation is motivated by malice. There they operate on the assumption that a constitutionally free press is beneficial, and that sometimes mistakes can be made.

It is somewhat ironic considering the latest ASIO terrorism law debacle that the crux of this conundrum lies in the issue of rights – or more importantly the absence of rights in Australia. Though our constitutional fathers saw fit to protect religious freedom, it now seems we are learning just what an oversight it was not to grant us the right of speech.

Robert Pullan wrote in his 1994 book Guilty Secrets: free speech and defamation in Australia, that “defamation law protects the rich and powerful” and that it is “used by people who have sought power, fame or money in the public arena to punish attacks on their motives or performance”.

In this context it is a real shame that citizens have not been given a public right to know. As Pullan points out quite eloquently: “Free speech is fundamental to our lives not only because our democracy depends on it but also because our human experience depends on it. It gives us our perception of our country, our community, and ourselves. To the extent that it is limited, we are limited.”

Strangely the most immediate threat stemming from the High Court decision is to the multinationals. It would be unlikely that a defamation action would be pursued in Australia against a company that has no assets here. So the real threat is to the big players – the bigger you are the harder you may fall. Based on this some have questioned why Dow Jones even bothered to contest the action in Australia at all.

On the other side of the coin, there is potentially the threat that multinationals may ‘forum-shop’ and seek out places with favourable (to them) defamation laws to take action against Internet agitators.

What is perhaps the decision’s silver lining is that it may pave the way for a nationally consistent approach to defamation – for the Internet, at least. The Constitution grants the Commonwealth the power to deal with all things telegraphic. While the decision may give an impetus to defamation law reform, the government’s shortsighted and ill-considered handling of Internet regulation and digital TV so far does not bode well.

At the very least we should expect there to be a ‘chilling’ of free speech on the Internet from news sites that deserve greater freedom, not less.

David Grant is the author of ‘Defamation and the Internet: principles for a unified Australian (and world) online defamation law’ published by Routledge in the journal Journalism Studies, 2002. He is also an online producer for Reportage.