Internet Law

"publication of defamatory material occurs when and where conten of the publication, whether oral or spoken, is seen and heard and comprehended by by the reader or hearer.":Duke of Brunswick and Luneberg v Harmer [1894] 14 QB 184 and also Gutnick at para 60

Where did the publication take place?
@ New Jersey where servers have uploaded the alleged article "Unholy Gains"
@ Victoria where thre is a nuber of subscribers and is also the plaintiff's residence

Defendant's Expert Witnesses illustrated "push and pull technologies" in order to drawing a conclusion that how and when publication took place or occured in the Internet.
Also, defendant's counsel warned that a judgement in favor of the plaintiff would lead to a "chilling"effect and free speech as well as promoting the number of lawsuits.

The court refused to accept that "the Web server is totally passive". His honour explained that "the pull" tecnology only operates on the defendant's terms. When the so-called knock on the door comes it is a Web server that opens.

He also pointed out the European Community Rules under the draft Hague Convention which provided that "a plaintiff will be able to recover the whole of the damages suffered by reason of defamatory Internet publication by suing in the courts of the State in which either the defendant (Article 3) or the plaintiff (Article 10.14) is habitually resident.

2. What are the bases of jurisdictional competence on which courts have relied to provide those courts with jurisdiction over material published on a web site which is not located within, but which may be accessed from, the territory over which the court has jurisdiction?

His honour refered the case of Schapira v Jonothan which was ruled that

"Where the tort of libel was allegedly committed in England against a person resident and carrying on business in England by foreigners who were aware that their publication would be sent to subsribers in England, that English resident was entitled to bring proceeding here against those foreigners and to limit his claim to publication in England even though the circulation of the article was extremely limited in England and there was a much larger publication elsewhere."

The court also applied the land mark precedent in Sheville v Press Alliance SA which said that
"England, where the plaintiff lived and carried on business, and where he wished his reputation to be vindicated was the appropriate forum for the actions."

The court of Gutnick's case ruled that "the Victorian forum is the more appropriate forum" with these following reasons.

• Victoria is the place where the publicaiton of allged defamatory statement was downloaded and where the print publication was sold;
• the plaintiff is a resident of Vitoria, has his business headquarters here, his family here, his social and business life here, and seeks to have his Victorian reputation vindicated by the courts of the State in which he lives;
• his reputation in Victoria as a money-launderer was attacked and should be repelled, and re-established his reputation;
• the case must be judged based on the case which it has been commenced; there is no judicial prejudice whether the plaintiff taking an action in Victoria or in the U.S.

The Relevance of Physical Location

• Targeting
  
• Power Parameters
  
• Contractual Choice
  
• The Intersection Between Jurisdiction and Substantive Liability for Intermediaries
  

@ THE DOCTRINAL FRAMEWORK: The Bases of Jurisdictional Competence where a defendant never phicially present in teh forum may be still subject to jurisdiction .

• Personal Jurisdiction-"the power of a court over teh person of a defendant."
  .
• Classic Jurisdiction--->Pennoyer v. Neff (1877) the U.S. Supreme court ruled that "every state possesses exclusive jurisdiction and soverignty over persons and property within its territory."
  
• Jurisdiction Over Defendants Never Physically Present in the Forum---> International Shoe v. Washington
  

  The Washington court held that "the regular and systematic solicitation of orders in Washington by International Shoe's salesmen, resulting in a continuous flow of Internaional Shoe's product into the state" was enough to bring International Shoe's within the State's jurisdiction.The Court also pointed out the solicitation coupled with "some additional activities" within the state was sufficient to establish jurisdiction.

  (a). Jurisdiction Based on Indirect Economic Benefit

  • In Bensusan Restaurant Corp v. King (S.D.N.Y. , 1996), the Southern District of New York ruled that a defendant's mere operation of a web site, without more, was not enough to confer jurisdicion. The Court also cited Asahi Metal Industry Co. v. Superior Court (1987) by making an analogy that the operation of a web site in dicta to the placement of a product into the stream of commerce, concluding that even though a web site may be accessed from anywhere in the world, the operation of a web is not an act purposedfully directed toward the forum state.
  • CompuServe v. Patterson which the court held that the stream of commerce would have not been a sufficient bassis for establishing a proper jurisdiction over the case.

  Zippo Mfg. Co. v. Zippo Dot Com, Inc(W.D. Pa, 1997)
  

  The Zippo Manufacturing, located in Pennsylvania, makes "Zippo"tobacco lighters whereas Zippo Dot Com, located in California, operates an Internet Web site and has the exclusive right to use the Internet domain names "Zippo.Com", "Zippo.Net", and "Zippo.News". The Manufacturer sued Dot Com alleging trademark dilution, infringement and false designation.

  The Two-factor Zippo Test
  

  • "the volume of business carried on the forum by the non-resident defendant"
  • "The more interactive, the more substantial the contact and the more likely that a minimum contact exists."

  (b). Jurisdiction Based on Intentional Causation of Effect
  

  • Blumental v. Drudge and AOL.(D.C., 1998)

    The plaintiff was a White House employee whose connection with the Distric of Columbia paralled that of Jones to Califonia. The Drudge Report containing the alleged libel was circulated in the District, albeit on the Internet, and given its political and gossip content, was designed for an audience likely to live there. The column, while posted on the defendant's web site, was also to subscribers via e-mail. Had the Internet no been involved, a one line cite to Calder would have sufficed. Instead, the court focused on the interactive of the Web site, a fixation of many lower courts deciding these kinds of cases which will addressed infra.

  • In Australian case of Marquarie Bank & Anor v. Berg [1999] NSW SC 562

    The bank sued a former employee, alleging he had defamed it on a web site located outside Australia; the employee himself was also outside Australia at the time the claim arose. A single member of the New South Wales Supreme Court refused to enjoin the sie, focusing on the inability to confine the requested order to dissemination of the defamation in NSW and the difficulty of enforcing any injunction against an absent defendant. However, the NSW court did not point out the passive nature of the web site nor considering the extent to which the site targeted a local bank.

    (c). Jurisdiction Based on Intentional Affiliation
    

    Burger King Corp. v. Rudzwicz (1985): The defendant franchisee, a Michigan businessman, had allegedly breached his contract with Burger King, a Florida corporation. Even though the defendant argued strongly that his contracts had been with the Michigan district office, the court foud that he had intentionally himself witih a Florida entity by actively engaging his negotiation with Burger King's Miami headquarters.Thus, the court apply the Florida law to determine the case. The court also stated that nothing that decision did not justify an assertion of jurisdicion over any party to contract in the other in the other party's home state.
    • ComputServe, Inc. v. Patterson (6th Cir. 1996)

      Patterson was a Texas lawyer who wrote share programs for ComputerServe, an Ohio company. Their softeware programs were sold in Ohio and elsewhere.Petterson electronically submitted 32 software files to CompuServe, but only 12 were downloaded from Ohio residents. CompuServe began marketing a similar softeware product which Patterson believed infringed upon his common trademards. Consequently, CompuServe filed suit in Ohio for a declaratory judgement that CompuServe had not infringed defendants' trade names or otherwise engaged in unfair competition.

      The Sixth Circuit ruled that CompuServe had made a prima facie showing that defendant's contracts with Ohio were sufficient to support the exercise of personal jurisdiction. The court also found that the defendant purposely availed himself of the privilege of acting in Ohilo that cause of action arose from the defendant's activities in Ohio. and that the acts of the defendant or consequences of acts by him had a substantial enougn connection with the forum to make the exercise of jurisdiciton reasonable.

      3. In what circumstances will United States' courts refuse to enforce foreign judgements, which fail to satisfy the free speech protection accorded by the first amendment to the United States Constitution?
      What impact does the refusal by United States courts to enforce foreign judgments in such circumstances have on the ability of foreign jurisdictions to enforce their domestic legal systems on multimedia services which may be accessed worldwide but which are located, and have all of their significant assets, solely within the United States?

    • Yahoo, Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme 169 F Supp 2d 1181; 2001 US Dist LEXIS 18378; 30 Media L Rep 1001 (ND Cal 2001)
      

    • Bachchan v India Abroad Publication Inc.,(NY, 1992), see pp..204-205, and 208-210 in United States Enforcement of English Defamation Judgements Exporting the First Amendment? by Derek Devgun

      4. What are the conflicts of laws rules, which apply to Australian intra-state torts?
      What impact would the application of those rules have to determining the liability for defamation of the operator of a web site, the server for which is located in Victoria but which may be accessed throughout Australia?

    • Gutnick v Dow Jones & Co Inc [2001] VSC 305; [2001] ACL Rep 85