The Gutnick decision

The Gutnick decision

Thoughtful essay by Glenn Harlan Reynolds of the University of Tennessee on the Australian High Court decision to allow an Australian citizen to sue Dow Jones for defamation — in Victoria (where he lives) rather than in New Jersey (where the Dow Jones servers are located). Reynolds starts with a lovely historical analogy:

“IN the 1950s, before space travel was a reality, scholars worried about whether orbiting the Earth would even be legal. Under the law as it existed at that time, each nation’s sovereignty extended usque ad coelum – literally “to the heavens”.

Each nation’s territory thus consisted of a wedge beginning at the Earth’s core and continuing infinitely upward and outward.

This posed a number of absurdities, but the greatest difficulty was to orbiting spacecraft. Flying over a nation’s territory without permission was illegal, perhaps even an act of war. But although aircraft could change course to avoid passing over countries who desired to bar their way, spacecraft – their orbital paths fixed by the laws of physics – could not. If any country beneath them (which might mean any country in the world, depending on the inclination of their orbit) objected, it didn’t matter that everyone else agreed.

People worried about this at some length, but after the launch of Sputnik the Soviets and the US, soon followed by the other nations of the world, agreed that parochial concerns should not stand in the way of a promised worldwide communications revolution. Spacecraft in orbit were thus regarded as beyond the reach of earthbound law, and subject only to international space law and the law of the launching state, not that of the nations that they happened to pass over. The benefit, of course, was an explosion of satellite-based communications that was a boon for the entire world, and especially for previously isolated nations.

Now another new technology – the internet – faces a similar problem. In the case of Dow Jones and Company v. Gutnick, the High Court of Australia, yesterday ruled that anyone who publishes on the internet should be liable to be sued in any country in which an individual believes that he or she has been defamed by that publication. This is so, even though the High Court admits that, much as spacecraft cannot control their orbits: “The nature of the web makes it impossible to ensure with complete effectiveness the isolation of any geographic area on the Earth’s surface from access to a particular website.”…

More on this here and here.