New Zealand Law Students Journal
Last Updated: 14 January 2013
COMPARATIVE APPROACHES TO JURISDICTION & SOME BEST
PRACTICE GUIDELINES FOR NAVIGATING THE WORLD WIDE WEB
New winds are blowing on old doctrines, the critical spirit infiltrates
Since becoming available for commercial and public use in the 1990s, the
internet2 has become an indispensible technology for numerous
businesses.3 Today, many firms exploit the internet’s
information collection, maintenance and dissemination properties to gain
advantage over their competitors. Indeed, firms’ advertising
of their products on websites and judicious targeting of particular
groups (e.g. via email or pop-ups) have become commonplace means of increasing
revenue.4 Rapid growth in firms’ reliance on online
retailing as an everyday sales channel is also observable5 and is
* BMS/LLB (Hons), University of Waikato. Judge’s Clerk, Supreme Court of New
1 F Frankfurter, “The Early Writings of O.W. Holmes” (1931) 44 Harv. L.Rev. 717, 717.
2 Consistent with general business usage and academic writings regarding internet defamation, throughout this article, the term “internet” is used to denote all forms of interactive, electronic communication. That the internet is just one of several electronic networks available to users, albeit the most popular, is acknowledged: W Byassee, “Jurisdiction of Cyberspace: applying real world precedent to the virtual community” (1995) 30 Wake Forest L.Rev. 197.
3 In this article, the terms “business” and “firm” are used interchangeably to refer to any organisation which sells goods/services to consumers, i.e. any differentiation based on an entity’s legal structure is unnecessary. It is acknowledged that in numerous instances no significant distinction will be able to be drawn between commercial and non-commercial entities (e.g. individuals; Government agencies) when assessing the scope of an actor’s potential liability in defamation for material published via the internet. Accordingly, whilst many of the conclusions reached in this article will conceivably apply to a considerably broader range of entities, for clarity purposes this article focuses on the internet defamation liability of “firms” in the sense described above.
4 Nielson Online, NetRatings Report on E-Commerce (2007), available at:
<http://www.nielsen-online.com/resources.jsp?s ection=pr_netv & nav=1> last viewed
22 December 2008.
5 S Lee, S Park and S Yoon, “RFID based ubiquitous commerce
and consumer trust”
56 The New Zealand Law Students’ Journal
(2009) 2 NZLSJ
attributable to continuous developments in the sophistication of e- commerce
Currently, no supranational institution or single tribunal exists to
regulate the internet. Consequently, because the internet
respect geographic boundaries” and makes instantaneous global
communication possible at almost negligible marginal
defamation suffered and effected both intentionally and accidentally by firms
has become a contentious global issue.
Dow Jones v Gutnick8 marks the first final-level appeal
decision internationally which deals with the issue of whether traditional
defamation law analysis
is applicable to allegations of online
defamation. Particularly in terms of its conclusions regarding jurisdiction
(i.e. a Court’s authority to adjudicate on a dispute9) and the
point at which publication of material made available online occurs, the
Australian High Court’s Gutnick decision revolutionised media law
and internet business practices.10
Gutnick continues to generate much debate in courts and among
commentators internationally.11 However, prior to
University of Newlands v Nationwide News Pty Ltd,12
the New Zealand business
(2007) 107 IMDS 605, 605 – 606.
6 F Soliman and M Yossef, “Internet-based e-commerce and its impact on manufacturing
and business operations” (2003) 103 IMDS 546.
7 Barrick Gold Corp v Lopehandia (2005) 71 OR (3d) 416, para  (Ont CA). In this context,
“marginal cost” is used to denote the additional cost incurred by a publisher in communicating material to a single extra reader online: R Pindyck and D Rubinfeld, Microeconomics (5th ed, 2001), 80.
8 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575. Hereafter “Gutnick”.
9 B Garner (ed), Black’s Law Dictionary (8th ed, 2004), 867; Gutnick, ibid, para .
10 The Gutnick decision also has important implications for a myriad of other equitable
wrongs/possible torts (e.g. negligence; passing off; breach of confidence) which may result following a firm’s publication of material on the internet. Such topics are, however, outside the scope of this article.
11 See, for example, U Kohl, “Defamation on the Internet – Nice Decision, Shame About
the Reasoning: Dow Jones & Co Inc v Gutnick” (2003) 52 ICLQ 1049; B Werley, “Aussie
Rules: Universal Jurisdiction over Internet Defamation”  Temple Int’l & Comp L.J
12 University of Newlands v Nationwide News Pty Ltd  NZSC 16; (2006) 18 PRNZ 70 (SC); Nationwide
News Pty Ltd v University of Newlands (CA202/04, Glazebrook, Hammond and Panckhurst
JJ, 9 December 2005); University of Newlands v Nationwide News Pty Ltd (2004) 17 PRNZ
Internet Defamation 57
community had generally assumed that Gutnick would be expressly
adopted (or at least endorsed) in New Zealand at the earliest opportunity.
Subsequently, through reserving New
Zealand’s position on the issue,
Newlands has maintained continued uncertainty for businesses
vis-à-vis their potential online defamation liability. Accordingly, the
purpose of this article is to help inform New Zealand firms’
decision-making by analysing both the implications flowing from
and the likely future direction of international internet defamation law.
Therefore, Parts A and B of this article briefly outline
the elements of the
tort of defamation and the unique nature of the internet. Part C discusses
various international approaches to
the issues of publication and jurisdiction.
Part D explains the Newlands litigation. Part E identifies some best
practice recommendations for firms wishing to minimise their potential online
liability and/or vindicate their reputation following another
person’s publication of defamatory comments about them or
activities. Part F offers some concluding remarks and comment regarding the
future direction of internet defamation law.
A. The Elements of Defamation: an Overview
The tort of defamation is meant to remedy harms that cannot be quantified in
terms of personal physical damage but that are more ethereal
Defamation laws differ across jurisdictions and can be complicated.14
The essence of the tort, however, is relatively simple. Specifically,
absent the defendant proving a defence to the action,15 a
13 W Prosser et al., Prosser and Keeton on Torts (5th ed) (West Group Publishing, 1984), 771. Indeed, defamation law is predominantly focused on a person’s standing in society; any personal affront caused is rarely dealt with, except notionally in the context of damages.
14 Detailed discussion of what constitutes defamation and the availability of defences is
outside the scope of this article. Useful writings on the subject, however, include: L McNamara, Reputation and Defamation (Oxford University Press, 2007); P Milmo and W Rogers (eds), Gatley on Libel and Slander(11th ed) (Sweet & Maxwell, 2008) (“Gatley”); D Rolph, Reputation, Celebrity and Defamation Law (Ashgate, 2008); M Collins, The Law of Defamation and the Internet (2nd ed) (Oxford, 2005).
15 For example, “truth”, “honest opinion”, “innocent dissemination”, “absolute
privilege”, or “qualified privilege”. See Defamation Act
1992, ss 8 – 23. For comparative discussion of defamation
their application, see generally, A Kenyon, Defamation: Comparative Law and
Practice (UCL Press, 2006).
(including both companies and individuals)16 has an
action in defamation where there is a “published”
“statement” about them that is “defamatory”.
In New Zealand, defamation is governed by the Defamation Act 1992 and the
common law. Pursuant to s 6 of the Defamation Act 1992,
a body corporate
plaintiff cannot succeed in defamation unless it also proves actual or likely
pecuniary loss as a result of the
published statement at
Consensus on a satisfactory definition of “defamatory” is yet to
be reached.18 However, Sim v Stretch establishes that the
“principal test”19 is whether the relevant statement
tends to “lower the plaintiff in the estimation of right-thinking members
of society generally”.20 As Burrows explains, context is
critical in any assessment; what is and is not defamatory can change with time
and place.21 Courts have adopted a very broad approach to
communications constituting a “statement”.
16 Companies Act 1993, s 15; R v Murray Wright Ltd  NZLR 476, 484 (CA) and Salomon v Salomon  AC 22 establish that a company is a legal person and may accordingly sue and be sued in its own name.For authority establishing this proposition in the defamation context, see South Hetton Coal Co v North-Eastern Assn  UKLawRpKQB 194;  1 QB 133 (CA); Atlantic Union Oil Co Ltd v Bodle  GLR 441.
17 This is because bodies corporate (including trading and non-trading companies,
incorporated societies and educational institutions) do not have feelings able to be injured: Lewis v Daily Telegraph Ltd  AC 234, 262; Mt Cook Group Ltd v Johnson Motors Ltd  NZHC 137;  2 NZLR 488, 497 (HC).
18 Other than to provide that it includes both libel (written) and slander (spoken)
statements: Defamation Act 1992, s 2, no statute defines “defamation”. Reference to case law is accordingly necessary. Note, however, comment of Neill LJ in Berkoff v Burchill  EWCA Civ 564;  4 All ER 1008, 1011 (CA): “I am not aware of any entirely satisfactory definition of the word ‘defamatory’”.
19 Sim v Stretch  2 All ER 1237, 1240 (HL) per Lord Atkin. As alternatives to the “principal test”, a communication will also be found “defamatory” if it: (1) “tends to make the plaintiff be shunned and avoided”: Youssoupoff v Metro-Goldwyn Mayer (1934) 50
TLR 581 (CA), 584 and 587 per Scrutton and Slesser LJJ respectively; or (2) exposes or
subjects a person to hatred, contempt or ridicule: Parmiter v Coupland  EngR 168; (1840) 151 ER 340,
342 per Parke B.
20 For international acceptance of this test and its alternatives, see: J Burrows and U Cheer, Media Law in New Zealand (5th ed) (OUP, 2005), 11-12; D Butler and S Rodrick, Australian Media Law (2nd ed) (LBC, 2004), 34 – 35; and Gatley, above n 14, para [1.5].
21 J Burrows, “Defamation” in S Todd (ed) The Law of Torts in New Zealand (3rd ed)
(Brookers, 2001), 809 – 819.
All words, gestures, pictures, visual images, and other methods of
conveying meaning consequently have potential to be
Proof that a defamatory statement was “published” to some person
other than the plaintiff is sufficient to secure success
in an action for
defamation.23 Publication occurs by every person who
“intentionally or negligently plays any role in the publication
directly or indirectly authorises or communicates a
statement.24 Importantly, unlike the United States, New
Zealand has no “single publication rule”25 whereby a
series of defamatory publications (eg material appearing in a
broad-circulation newspaper) is taken to constitutea single
each publication is a separate tort giving rise to separate liability against a
defendant.26 It is well-settled that publication of defamatory
statements can occur via the internet.27 In this context, examples
of actionable publication formats include webpages, email, bulletin boards or
Usenet groups,28 hyperlinking29 and internet
22 Sim, above n 19; Youssoupoff, above n 19.
23 Pullman v Walter Hill & Co Ltd  UKLawRpKQB 193;  1 QB 524, 527, 529 – 530.
24 M Gillooly, The Law of Defamation in Australia and New Zealand (Federation Press, 1998),
75; Gatley, above n 14, para [6.3]. For additional description of this general rule, see Webb
v Bloch  HCA 50; (1928) 41 CLR 331, 363 – 366.
25 Webb, ibid; Loutchansky v Times Newspaper Ltd (Nos 2 – 5)  EWCA Civ 1805;  QB 783, para . In
the United States, the Restatement (Second) of Torts, § 577A(4) (1977) deals with the single publication rule, providing:
As to any single publication:
(a) only one action for damages can be maintained;
(b) all damages suffered in all jurisdictions can be recovered in the one action; and a judgment for or against the plaintiff upon the merits of any action for damages bars any other action for damages between the same parties in all jurisdictions.
For discussion of the single publication rule, see generally D Cohen, “The Single Publication Rule: One Action, Not One Law” (1996) 62 Brooklyn L.Rev. 921 and M Collins, above n 14, para [13.22].
26 Duke of Brunswick v Harmer  EngR 915; (1849) 14 QB 185. Duke of Brunswick involved a newspaper
publication. However, prior to Gutnick’s holding that the “multiple publication” rule applied to the internet, the rule had been extended to new media forms, e.g. books, television, movies and radio, as these emerged: Berezovsky v Michaels  UKHL 25;  1 WLR 1004 (HL); Harris v Perkins  NSWSC 258.
27 O’Brien v Brown  DCR 1065 marks the first New Zealand case considering application of traditional defamation laws to the internet. In this article, the terms “online” and “internet” defamation are used interchangeably.
28 Godfrey v Demon Internet Ltd  QB 201.
29 Hird v Wood (1894) 38 SJ 234 (CA) – establishing
that the act of drawing attention to another person’s defamatory statement
the attention-drawer liable in defamation.
chat.30 Contrary to the jury-determined31 issue
of whether a communication bears defamatory meaning, publication is a question
of law for the Judge.32
B. The Unique Nature of the Internet
The Internet represents a communications revolution. It makes instantaneous
global communication available cheaply to anyone with
a computer and an Internet
connection. It enables individuals, institutions and companies to communicate
with a potentially vast
global audience. It is a medium which does not respect
geographic boundaries. Concomitant with the utopian possibility of
creating virtual communities, enabling aspects of identity to be explored and
heralding a new and global age of free speech and democracy,
the Internet is
also potentially a medium of virtually limitless international
This Section does not review all the technological aspects of computers and
the architecture of the internet, as others have done
length.34 Rather, continuing Section A’s discussion intended
to provide context for analysis contained in later Sections, this
purpose is restricted to briefly describing key aspects of the
internet’s operation necessary for understanding how defamatory
may be published by or about firms. Important similarities and differences that
the technology shares with more traditional
means of communication are
highlighted. Comment is also offered on why and how utilisation of the internet
has become critical for
contemporary New Zealand firms.
30 D Harvey, internet.law.nz: selected issues (2nd ed) (LexisNexis, 2005), 463 – 465.
31 Section 19A(5) of the Judicature Act 1908 allows for election of a jury trial by either party where damages exceeding $3000 are the only remedy claimed. A jury trial will be denied where the opposing party satisfies a Court that the case predominantly involves either difficult technical matters (e.g. examination of accounts) or difficult points of law: News Media (Auckland) Ltd v Young  NZCA 86;  2 NZLR 173 (CA).
32 TVNZ Ltd v Prebble  3 NZLR 513 (CA). Likewise, the prior question of whether
the particular communication is capable of bearing a defamatory meaning is a question of law for the Judge.
33 Barrick, above n 7, para .
34 See generally, for example, C McTaggart, “A Layered Approach to Internet Legal
Analysis” (2003) 48 McGill L.J. 571. For international judicial discussion, see Godfrey, above, n 28, 204 – 205; Zippo Manufacturing Co v Zippo Dot Com Inc 952 F.Supp 1119, 1123
– 1124 (WD Pa, 1997); and Braintech Inc v Kostiuk (1999) 171 DLR
(4th) 46 (BCCA).
Developed as the result of an experimental US military project in
1969,35 the internet is essentially a decentralised,
self-maintained “network of networks”,36 which
facilitates instantaneous, long-distance communication.37 The
infrastructure operates through a series of non- proprietary standards (known as
data transfer protocols) for the identification
of sites and transmission of
data.38 Once connected to the online network, the internet allows
computers (or any other device offering digital communication, e.g.
cellphones) to communicate and share information internationally with any other
computer or digital communication device.
In this sense, the internet
represents an important development for free speech.39 On the
world- wide-web, hyperlinks40 enable users to move between webpages
Email and the world-wide-web are the internet’s most popular
applications.41 Email is a “store and forward system”
that allows messages to be transmitted to particular individuals’
mail boxes.42 Because, like ordinary letter mail,
emails must be sent to a predetermined address, intentional publication of
to the world at large rarely occurs.43
35 Then known as “ARPANET”: American Civil Liberties Union vReno 929 F. Supp 824, paras ,  – .
36 Reno, ibid, 830.
37 M Collins, above n 14,3; Reno, ibid, paras  – .
38 G Takach, “Internet Law: Dynamics, Themes and Skill Sets” (1999) 32 CBLJ 1, 6.
39 E Barendt, “Jurisdiction in Internet Libel Cases” (2006) 110 Penn. State L. Rev. 727,
40 Including “shallow links” whereby users are transported to the homepage of another website; “deep links” through which users are transported to a page other than the homepage of another website; and “framing” which, upon following a hyperlink, results in content of another website being displayed within a frame on the original website. Hyperlinks frequently blur the boundaries between where one publication ends and another begins. Additionally, hyperlinks cross-referencing other published material have potential to turn an otherwise innocuous website/email into a defamatory publication: M Collins, above n 14, paras [2.41] – [2.45], [3.11] – [3.12] and [5.25] – [5.28]. For recent Canadian authority to this effect, see Crookes v Wikimedia Foundation Inc  BCSC
1424, paras  –  and  – .
41 O Bigos, “Jurisdiction over Cross-Border Wrongs on the Internet” (2005) 54 ICLQ
585, 588. For this reason, this article focuses on defamation suffered/effected in these
42 G Takach, above n 38, 6 – 7.
43 Reno, above n 35, 834; D Harvey, above n 30, para
[6.5.1]; and A Spencer, “Jurisdiction and the Internet: Returning to
Principles to Analyze Network-Mediated Contacts” 
U.Illinois L.Rev. 71, 96.
recipient individuals may increase an email’s audience by forwarding
the communication to others.44
By contrast, subject only to ISP-imposed content restrictions,45
webpages/websites46 hosted on the world-wide-web potentially
allow communication of any uploaded47 material to a vast global
audience. Critically in terms of comparisons with more traditional media
formats, world-wide-web publications
do not generally occur at a single point in
time or at a single location. Additionally, publishers are able to exert far
over the locations where copies of their publications are made
available.48 Consequently, whilst historically the lynchpin of
private international law, States’ territorial boundaries are frequently
an arbitrary concept.49 Certainly, firms and publishers
may fully or partially restrict their website’s accessibility (i.e.
internet users’ ability
to download50 uploaded content) by, for
example, requiring subscriptions or limiting access to particular
company-associated personnel. However,
beyond these relatively rudimentary
techniques, affordable technologies allowing effective exclusion of
on grounds such as geographic location remain
44 Similarly, as the Court explained in Reno, above n 35, 834, unless encrypted, there is potential for an email’s viewing audience to extend beyond original addressees where the email is accessed on an intermediate computer between its recipient and sender.
45 ISPs (Internet Service Providers) effectively “establish the connection between people
and content on the internet”. ISPs “provide access to the World Wide Web, and allow users to store and publish content”. Additionally, ISPs also provide hosting and searching services: J Bayer, Liability of ISPs for Third Party Content (InternetNZ, 2007), 1 –
3; Gutnick, above n 8, para . Examples of content frequently blocked by ISPs
includes child pornography and other sexually inappropriate material.
46 “Websites are comprised of a collection of webpages. Websites are usually maintained
on a “webserver”. Webservers are generally controlled by the relevant website publisher or a party contracted to do so by the publisher”: Gutnick, above n 8, para .
47 “Uploading” involves placing the relevant document/webpages in a storage area managed by a webserver: Gutnick, above n 8, para .
48 D Bainbridge, “Defamation and the Internet – Some Issues” (2003) 8 IP & IT Law 3,
49 M Whincop and M Keyes, Policy and Pragmatism in the Conflict of Laws (Ashgate, 2001),
50 “Downloading” denotes a process by which the relevant webserver delivers a document to a requesting internet user who has nominated a “uniform resource locator” (“URL”) to identify the requested document’s location. Each webpage has its own URL. Webpage URLs will usually begin with the prefix “http://www”: Gutnick, above n 8, para ; M Collins, above n14, para [2.46].
51 Gutnick, above n 8, paras  – ; Yahoo! Inc v La Ligue Contre le Racisme et
L’Antisemitisme (“LICRA”): 169 F. Supp 2d
1181 (ND Cal, 2001), reversed 379 F. 3d
Similarly, unlike magazines, newspapers, and television or radio broadcasts
where audiences are generally aware of a publication’s
caching52 and the absence of any country code requirement for URLs
create difficulties for internet users attempting to distinguish between
and domestically-created speech.53 Consequently, regardless of
whether a firm’s website is capable of transacting electronically (i.e.
taking orders and handling
payments), where a decision is made to have
an online presence,54 compliance with domestic defamation laws
is rarely sufficient to secure limited exposure to legal risk.
By international standards, New Zealand has a comparatively high rate of internet usage. Indeed, 2008 statistics reveal a penetration rate of
80.5% (i.e. 3.36m users), which is second only to Canada at 84.3% and well
above the “Top-20 world average” of 25.4%.55 Congruent
with this strong penetration rate, recent New Zealand business surveys highlight
broad and growing adoption of e-business
strategies. Indeed, between 2000 and
2008, New Zealand firms’ internet usage grew by approximately 300%.56
More specifically, a majority of New Zealand businesses today operate a
website and some level of email usage by
1120 (9th Circ, 2004), rehearing granted, No. 01-17424, 2005 US App. LEXIS 2166 (9th
Circ, Feb 10, 2004) (en banc).
52 “Caching” is a process whereby, largely for cost and speed reasons, an automatic
temporary copy of material passing through a domestically-located caching server is made and stored for later retrieval and sending to requesting receivers. Caching servers usually discard stored material once demand for the information weakens: Reno, above n 35 at
848-849; M Collins, above n 14, para [2.47]. Note also Electronic Commerce (EC
Directive) Regulations 2002, reg 18.
53 Reno, ibid, 848.
54 For authority affirming that a company may be held vicariously liable for the actions of its employees/others acting on its behalf within their authority, see Dollars & Sense Finance Ltd v Nathan  NZSC 20;  2 NZLR 557 (SC); Dairy Containers Ltd v NZI Bank Ltd  2
NZLR 30 (CA).
55 Miniwatts Marketing Group, Internet World Stats: “Internet Usage and Population Statistics for Oceania” (June 2008); “Top 20 Countries with the Highest Number of Internet Users” (June 2008), respectively available at:
<http://www.internetworldstats.com/top20.htm> last viewed 12 December 2008.
56 Miniwatts Marketing Group, ibid. Compare: Deloitte Touche Tohmatsu, Deloitte E-
Business Survey (2001); University of Waikato Management School,
Net Readiness in New Zealand Industries: Empirical Results (August 2001);
New Zealand Institute for the Study of Competition and Regulation, The State
of E-New Zealand: 12 Months On (November 2001).
firms is virtually ubiquitous.57 Hence, in addition to their own
potential to defame via the internet, firms must be alive to the possibility
that they may unwillingly
become embroiled in defamation litigation
through publication of comments about them by other internet users, e.g.
or members of the public. Indeed, whilst frequently a lengthy,
inconvenient and expensive process, in some cases litigation is the
by which a firm can sufficiently restore its reputation, deter future
occurrences of similar comments, and regain the
level of supplier and consumer
confidence necessary for long-term survival.58
C. Publication and Jurisdiction: Selected International Approaches
Broadly speaking, jurisdiction disputes are determined by one of two rules:
the place where the harm or damage is suffered or the
place where the wrong is
committed. Traditional principles instruct that tort liability is determined by
the narrower of these two
approaches, specifically the law of the location where
harm is suffered.59
Whilst firms have previously rarely been required to consider discrepancies
in the stringency of different States’ defamation
laws (i.e. the premium
afforded to free speech) in their everyday business decisions, recent judicial
interpretations in international
internet defamation cases have created an
expanding divide between the two approaches. Central to this growing divide and
ability to avoid liability or recover damages in its chosen
Court, is the deemed geographic locale of defamatory publications.
Section therefore provides a comparative overview of similarities and
differences in developments and current approaches to
issues of publication and
jurisdiction by courts in Australia, Canada, England and Wales, the United
States and European Union.60
57 Miniwatts Marketing Group, ibid.
58 As was the case in Barrick, above n 7.
59 O Bigos, above n 43, 589 – 590; D Bainbridge, above n 50, 7.
60 Detailed discussion of variants in the elements of States’ defamation laws and particular
interpretations of these is outside the scope of this article.
Although delivered some three years after the first English61 and
Canadian62 decisions dealing directly with private law aspects of
the internet, Dow Jones & Co Inc v Gutnick63 arguably
remains the most important common law decision regarding publication and
The Gutnick litigation stemmed from an exposé entitled
“Unholy Gains” published by Dow Jones65 in its
Barron’s Online magazine in October 2000. The article alleged tax
and money laundering irregularities in the business dealings of Victorian
Mr Gutnick. Mr Gutnick had a prominent reputation in Australian
religious, philanthropic and sporting circles. His business activities
extended to the United States. Barron’s Online was primarily a
subscription news website. The magazine had a large circulation in the United
States, but only around 1700 Australian
Material available on Barron’s website67 was
uploaded from Dow Jones’ editorial office in New York and stored on the
company’s webservers maintained in New Jersey.68
61 Godfrey, above n 28. Importantly, Godfrey primarily focused on ISP liability – a broad and contentious issue outside the scope of this article. For recent New Zealand discussion on the topic, however, see J Bayer, above n 45 and M Collins, above n 14.
62 Braintech, above n 34, leave to appeal to Supreme Court refused: (1999) 182 DLR (4th) vi. Significantly, Braintech deals only with the relatively narrow issue of foreign judgment enforceability vis-à-vis posting of defamatory material on electronic bulletin boards.
63 (2002) 210 CLR 575.
64 E Barendt, above n 39, 728.
65 Dow Jones is a New York-based media company that specialises in business and
66 Oral evidence was that the magazine had a total subscription base of approximately
550,000 customers and that Barron’s Online was not targeted at Australian readers:
Transcript of Proceedings (28 May 2002), available at:
<http://www.austlii.edu.au/au/other/hca/transcripts/2002/M3/2.html> last viewed 10
November 2008. Of the 1700 Australian subscribers, 300 were estimated to reside in
67 Barron’s Online and the Wall Street Journal (also published by Dow Jones) are respectively
available at: <http://online.barrons.com/public/main> and
<http://online.wsj.com/public/us> last viewed 20 December 2008.
68 Gutnick, above n 8, paras  –  and  per
Gleeson CJ, McHugh, Gummow and Hayne JJ (hereafter “joint reasons”)
 –  per Callinan J. The case’s facts are discussed in
additional detail by Hedigan J at first instance: Gutnick v Dow Jones &
Co Inc  VSC 305, paras  – , upheld on appeal: Dow
Jones & Co Inc v Gutnick  VSCA 249 per Buchanan JA and
The central issue in Gutnick was whether publication of
Barron’s Online occurred in the United States when its content was
uploaded or in Australia when downloaded by subscribers.69 Hence,
in practical terms, the Court was required to decide whether businesses
publishing online were obliged to comply with the defamation
laws in all
countries where they have customers or simply those of the location where
their publication originates.
In four concurring opinions, the High Court dismissed Dow Jones’ application to set aside or stay the proceeding.70 Upholding Hedigan J’s first instance decision, their Honours rejected Dow Jones’ contention71 that the internet required modification of traditional principles developed for the broadcasting media and press.72 Drawing on international authority, their Honours reasoned that, as a matter of principle, the “substance” of where a tort occurs must remain determinative.73 Consequently, in locations where a plaintiff has a reputation, “damage” to that reputation (i.e. the “essence” of the tort) occurs when defamatory material is “available in comprehensible form”.74 In cases involving the internet, material is not “comprehensible” until downloaded/“pulled” from a webserver.75
Affirming continued application of the multiple publication rule, albeit in
need of legislative reform at least in Australia,76 the Court
69 Gutnick, above n 8, paras ,  –  and  per joint reasons and  –  and
 –  per Kirby J.
70 Adjudication on the case’s particular merits was reserved for a later occasion.
71 Dow Jones’ arguments are summarised in the Court’s joint reasons: paras  – .
72 Gutnick, above n 8, paras  –  per joint reasons and  –  per Callinan J. Compare comments Kirby J, paras  and . Indeed, whilst the Court’s four judgments essentially reflect differing attitudes to the extent the internet challenges application of traditional defamation law principles, it is only Kirby J who departs from the Court’s general view that the internet constitutes more than simply another new communications medium.
73 Ibid, paras  per joint reasons and .  and  per Kirby J. See similar statement of principle articulated in M Whincop and M Keyes, above n 51, 196.
74 Gutnick, ibid, paras  and  per joint reasons,  per Gaudron J and  per
75 Ibid, para  per joint reasons.
76 Ibid, paras  –  per joint reasons,  –  per Gaudron J,  –  per
Kirby J and  –  per Callinan J: any adoption of a single
publication rule would be to “impose upon Australian
residents ... an
American legal hegemony in relation to Internet publications”.
that material accessible online was “published”77
whenever downloaded by a reader.
On the issue of jurisdiction, the Court declined to impose a physical
connection requirement between the place of publication
and the alleged
tortfeasor. Instead, the Court held that, ordinarily, the locale of each
download is the place where the tort
is committed.78 Having found
jurisdiction, any lex loci (i.e. choice of substantive laws a Court must
apply) and forum non-conveniens (i.e. convenient forum) disputes remain
separate and distinct issues.79 In choice of law disputes, the
place of publication is, however, a relevant and connecting
In reaching its conclusions, the Court acknowledged that a likely and
possibly troubling outcome of its reasoning was that online
become subject to extensive and uncertain defamation liability as a result of
publishing in numerous States.81 Nevertheless, ostensibly
considering firms’ ability to profit from their internet
activities a weighty factor, to varying
degrees, all members of the Court
suggested that “global” exposure to defamation laws was simply a
corollary of firms’
decisions to have an online presence and enjoy the
benefits of wider circulation of published content.82
Notwithstanding this view,
77 The distinction between the act and fact of publication is emphasised in the Court’s joint reasons at para .
78 Gutnick, above n 8, paras  –  per joint reasons,  per Gaudron J,  – 
per Kirby J and  per Callinan J.
79 Ibid, paras  –  per Kirby J. Choice of law and forum non conveniens issues are
each broad and complex topics in their own right. As such, detailed discussion of these issues is outside the scope of this article. For where differences in the stringency of Australian and other Commonwealth countries’ forum non conveniens tests become important in a dispute, see generally: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR
538, 552 – 566 and compare Spiliada Maritime Corp v Cansulex  UKHL 10;  AC 460. In New
Zealand, Spiliada was adopted in Club Mediterranee NZ v Wendell  1 NZLR 216 (CA).
80 Gutnick, ibid, paras  per joint reasons and  –  per Kirby J. In Australia, Regie National des Usines Renault SA v Zhang  HCA 10; (2002) 187 ALR 1 establishes that where a publication is found to have occurred outside Australia, the law of the location where the publication occurred (i.e. the downloaded-to State) will apply. However, application of the foreign law must be expressly pleaded by the parties and must not offend Australian public policy if it is to govern the dispute.
81 Gutnick, ibid, paras  –  per joint reasons and  per Kirby J.
82 Ibid, paras  per joint reasons,  per Kirby J and  and  per Callinan J.
Significantly, the Court did not consider differences in the resources/profit
potential of large corporations and individuals or small
business; the gist of
para  arguably suggests firms’ only option for avoiding liability is
to refuse to go online.
rather pragmatically, their Honours also reasoned that any
unsatisfactory exposure for firms was significantly lessened by
enforceability difficulties plaintiffs frequently encounter outside their home
States.83 Certainly, that conclusion is regrettable from a comity
standpoint.84 Likewise, it is acknowledged that there is force in
complaint consistent with Kirby J’s comment that:85
... providing jurisdiction based upon the mere happening of damage within a
jurisdiction conflicts with the ordinary principle of
public international law
obliging a substantial and bona fide connection between the subject matter of a
dispute and the source of
jurisdiction of a national court over its
However, from a business perspective, it is the fact that the Gutnick
Court did not ground its conclusions in Dow Jones’ knowing
acceptance of Australian subscribers which is perhaps most important.
Indeed, by basing its decision on the website’s accessibility per
se, the business risks flowing from the Court’s judgment apply
irrespective of whether a firm’s website has open or
access, and/or operates passively or has been deliberately targeted or
“pushed” toward a particular
Canada’s Supreme Court is yet to rule substantively on the issues of
publication and jurisdiction vis-à-vis the internet.86
83 Ibid, paras  and  –  per joint reasons and ,  and  –  per Kirby J. Judgment enforceability difficulties are well-illustrated by the tumultuous LICRA above n 51, litigation. For discussion of LICRA’s facts, case history and issues, see, H Hestermeyer, “Personal Jurisdiction for Internet Torts: Towards and International Solution?” (2006) 26 Nw.J.Int’l L.&Bus. 267, 269 – 275 and B Earle and G Madek, “International Cyberspace: From Borderless to Balkanized???” (2003) 31 GA J.Int’l & Comp.L. 225, 228 - 251.
84 “Comity” refers to the “recognition which one nation allows within its territory to the
legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or other persons who are under the protection of its laws”. Comity is “neither a matter of absolute obligation ... nor mere courtesy”: Black’s Law Dictionary, above n 9, 284.
85 Gutnick, above n 8, para , citing Compania Naviera Vascongado v SS Cristina  AC 485, 496 – 497; Tolofson v Jensen  3 SCR 1022, 1047; Zhang, above n 80, paras  –  and Zippo, above n 34, 1122.
86 That leave to appeal to the Canadian Supreme Court was refused in Bangoura v
Washington Post  SCR 113 and Braintech, above n 34, is
analysis of authorities reveals that the present Canadian position is broadly
consistent with the approaches adopted in Australia87 and England and
In terms of particular similarities with Australia’s approach, recent Canadian authority affirms that, in cases involving the internet, “publication” of defamatory material occurs at the location where the relevant material is accessed or downloaded, and that publication is an important determinant of where the tort at issue is committed.89 Like Kirby J in Gutnick,90 Canadian courts also acknowledge the importance of not conflating issues of appropriate forum and jurisdiction.91
Viewing the United States’ Sullivan92 decision as a
reflection of “deeply- ingrained” Constitutional principles and
considering English defamation law
no less civilised than American,93
courts similarly agree that Gutnick rightly maintained continued
application of the multiple publication rule.94 However, Canadian
courts will only find jurisdiction over a foreign defendant where there is a
“real and substantial connection”
to the forum.95 Hence,
courts’ jurisdictional scope is much
87 See discussion in Section IV(A) above. Notably, both Kitakufe v Oloya Ltd (1998) 67
OTC 315 and Braintech, ibid, were cited in Gutnick, above n 8.
88 See Sections IV(A) and IV(C).
89 See, for example, Crookes v Yahoo! (2008) 77 BCLR (4th) 201 (BCCA); Timberwest Forest
Corp v United Steel Workers  BCSC 388, paras  – ; Burke v NYP Holdings Inc  BCSC 1287, para ; and Imagis Technologies Inc v Red Herring  BCSC 366, para .
90 Gutnick, above n 8, para  per Kirby J.
91 Burke, above n 89, para ; Wiebe v Bouchard (2005) 46 BCLR (4th) 278, paras  –  (BCSC).
92 New York Times v Sullivan  USSC 40; 376 US 254 (1964).
93 Hill v Church of Scientology  2 SCR 1130, 1187 – 1188 per Cory J.
94 Burke, above n 89, para , citing Bangoura v Washington Post (2004) 235 DLR (4th) 564, para  (Ont SCJ).
95 Burke, ibid, para  and Bangoura, ibid, para
. Morguard Investments Ltd v De Savoye  3 SCR 1077 and
Muscutt v Courcelles (2002) 60 OR (3d) 20, paras  –  (CA)
establish and refine the eight factors relevant to this factual assessment. As
briefly stated in Bangoura, para , the eight factors relevant to
determining “jurisdiction simpliciter” are: “(1) The
the forum and plaintiff’s claim; (2) the connection
between the forum and the defendant; (3) Any unfairness to the defendant
assuming jurisdiction; (4) Any unfairness to the plaintiff in not assuming
jurisdiction; (5) The involvement of other parties
in the suit; (6) The
Court’s willingness to recognise and enforce a judgment rendered on the
same jurisdictional basis; (7)
Whether the case is interprovincial in nature;
(8) Comity and the standards of jurisdiction, recognition and enforcement
narrower than that conferred on their counterparts in Australia by
Bangoura v Washington Post and Burke v NYP Holdings Inc96
provide the leading statements of authority on internet defamation
generally and, in particular, on what constitutes a “real
connection”. In Bangoura, the defendant newspaper published two
articles on its website which the plaintiff alleged were defamatory in their
his conduct as a United Nations representative to Kenya. At the
time the articles were published, the plaintiff was not a Canadian
the Washington Post had only seven Canadian subscribers. When the plaintiff
moved to Ontario some three years later,
the articles were no longer freely
available but could still be accessed through a paid archive. The
was that only the plaintiff’s lawyer had accessed the
articles prior to trial.97 At first instance, the Court noted that
the plaintiff would have a juridical advantage in Ontario and that the
of most defamation suits is “character
vindication, not money”.98 Reasoning that the Washington
Post (being “a major newspaper in the world’s most powerful country
... made figuratively
smaller by, inter alia, the Internet”) should have
“reasonably foreseen that the story would follow the plaintiff wherever
resided”,99 Pitt J held it appropriate for the Ontario Court
to assume jurisdiction.100 The Court of Appeal, however, had no
difficulty concluding the connection between Ontario and the plaintiff’s
claim was “minimal
at best” and that, because Mr Bangoura had
therefore not suffered any damage in Ontario, the appeal should be
dismissed.101 Perhaps significantly from a future directions
perspective, the Court also recorded that it found the Intervener Media
submissions regarding four alternative approaches to
96 Bangoura, above n 94, reversed on appeal: (2005) 258 DLR (4th) 341 (Ont CA) and
Burke, above n 89.
97 Bangoura, ibid, paras  – .
98 Ibid, para .
99 Ibid, para [19.2].
100 Ibid, para .
101 Ibid, paras  – .
102 Namely: (1) Targeting Approach; (2) Active/Passive Approach; (3) Country of Origin
Approach; and (4) Foreseeability and Totality of Circumstances Approach. For further explanation of these approaches, see Bangoura, ibid, para .
103 Ibid, paras  – .
Arguably also turning on the issue of foreseeability,104 Burke
similarly deals with a newspaper’s online accessibility. In
Burke, the NYP published an allegedly defamatory article about the
plaintiff’s involvement in a Vancouver hockey game incident.
defendant gave evidence that it had “no method” of determining the
geographic origin of its website hits or the
geographic location of any
individual directing their browser to access its website.105
Citing Gutnick and quoting extensively from
Bangoura,106 the Court ruled a “real and sufficient
connection” established based on NYP’s article being
and “of interest” to British Columbia
From a damages or relief standpoint, the Ontario Court of Appeal’s
decision in Barrick Gold Corp v Lopehandia108 is also
important. In Barrick, the plaintiff firm was a large gold producer.
The defendant was a businessman with involvement in mining who had
become dissatisfied with Barrick’s operations.109 The
defendant embarked on a “malicious”, “high-handed”,
“unremitting” and “tenacious”
internet campaign against
Barrick, posting a “blizzard of messages” on bulletin boards and
various websites relevant
to those involved in the gold- mining
At first instance, the Court awarded Barrick $15,000 in general damages and dismissed its application for a permanent injunction restraining the plaintiff from publishing any further defamatory comments about Barrick on the internet.111 On appeal, the Court recorded that it was always important to “balance freedom of expression” and “not inhibit the free exchange of information and ideas on the internet by damages awards that were too stifling”.112 Nevertheless, the Court held a
$50,000 punitive damages award was necessary in order to signal
104 Burke, above n 89, para .
105 Ibid, para .
106 Burke, above n 89, paras ,  and .
107 Ibid, paras  – .
108 (2005) 71 OR (3d) 416 (Ont CA) (per Doherty and Blair JJA for majority, Laskin JA
dissenting in part regarding quantum, but not availability, of general damages).
109 As such the case provides a pertinent example of a situation where a firm may need to
pursue litigation in order to vindicate/prevent further harm to its reputation due to the actions of another person (e.g. a dissatisfied customer, competitor or other stakeholder).
110 Barrick, above n 7, paras  –  and .
111 Ibid, paras  and .
112 Ibid, paras .
courts “would not countenance” use of the internet for
similar defamation campaigns.113
Regarding the request for injunctive relief, the Court observed that the
“highly transmissible nature of the tortious misconduct”
weighty factor in determining whether a permanent injunction should be
granted.114 However, finding such an order appropriate, the Court
opined that, in addition to potentially being enforceable in the location where
the plaintiff resided, an order would operate to prevent an ISP from continuing
to post the defamatory messages.115
In terms of comparisons with Australia’s approach, Barrick’s
comments regarding the unique nature of the internet are also
significant.116 In particular, Barrick identifies the
“mode and extent” the internet makes publications available as a
particularly relevant factor differentiating
the medium from other
communications formats.117 Indeed, as the Court
Communication via the Internet is instantaneous, seamless, interactive,
blunt, borderless and far-reaching. It is also impersonal,
and the anonymous
nature of such communications may itself create a greater risk that defamatory
remarks are believed.
Additionally, the Barrick Court reasons that the internet is a medium “more pervasive than print” where “speed takes precedence over all other values” and hyperbole and venting are at least as common as careful, considered argument.119 Emphasising that “traditional approaches attuned to ‘the real world’” often fail to adequately address realities of the internet world, the Court ultimately concludes that the
113 Ibid, paras . Notably, the Court of Appeal also increased the lower Court’s general damages award to $75,000. Regarding the “standard factors” relevant in defamation damages claims, at para  the Court affirmed the factors summarised in Church of Scientology, above n 95, 1203.
114 Barrick, above n 7, paras .
115 Ibid, paras  and , citing McMillan Bloedel Ltd v Simpson  2 SCR 1048;
Morguard, above n 95; and G Castel and J Walker, Canadian Conflict of Laws (5th ed) (looseleaf), 14 – 31.
116 Barrick, above n 7, paras  –  and  – .
117 Ibid, paras  and  – . Note also similar suggestion by British Columbia
Court of Appeal in Braintech, above n 34.
118 Barrick, above n 7, para . Note also Vaquero Energy Ltd v Weir  ABQB 68.
119 Ibid, para .
internet is properly distinguished from traditional communication
forms.120 In this respect, Barrick essentially disagrees
3. England & Wales
England and Wales’ approach to internet defamation is similar to that
applied in Canada.122 Indeed, as recently stated in Richardson
v Schwarzenegger,123 it is “well-settled” that
“an internet publication takes place in any jurisdiction where the
relevant words are
read or downloaded” and that no single publication
rule applies to trans- national defamation.124 Importantly,
foreseeability has also emerged as the critical test for determining
jurisdiction, with courts frequently affirming
that “no warrant”
exists for drawing a distinction between:125
... those who deliberately publish or put matters on the World-Wide- Web as
part of their business and those who do so incidentally,
and without intending
to target any particular jurisdiction.
Consistent with both Australia and Canada’s positions, English courts
demonstrate a commitment to ensuring that jurisdiction
and forum issues remain
separate and distinct in principle. However, like Canada, English courts appear
less convinced than their
Australian counterparts that strict application of
traditional legal principles to the internet is not problematic.126
Arguably for this reason, England and Wales’ law imposes a de
minimis “minimum contacts” test for internet defamation
disputes. Whilst this test is very similar to Canada’s
“real and substantive connection” test, the English test falls for
consideration as a forum issue,127 rather than being part of
a Court’s “jurisdiction
120 Ibid, para .
121 Gutnick, above n 8, paras  –  and  –  per joint reasons.
122 Bangoura, above n 96, para .
123 Richardson v Schwarzenegger  EWHC 2422, para .
124 For authority rejecting application of the single publication rule in England, see
Loutchansky, above n 25, paras  – ; Harrods v Dow Jones  EWHC 1162, para ; Lewis v King  EWCA Civ 1329;  EMLR 4, paras  –  (CA), citing Gutnick, above n 8, paras ,  and  per joint reasons and Callinan J; and Berezovsky v Michaels  1
WLR 1004, 1012 per Lord Steyn and 1024 – 1026 per Lord Hoffmann and Lord Hope
125 Schwarzenegger, above n 125, para ; Lewis, ibid, paras  – .
126 See, for example, Godfrey, above n 28; Berezovsky, above n 124; McManus v Beckham
 EWCA Civ 939;  1 WLR 2982 (CA); and Jameel (Yousef) v Dow Jones & Co Inc  EWCA Civ 75;  QB 946 (CA).
127 Appropriate forum (i.e. forum conveniens) issues are
generally outside the scope of this
Perhaps as a consequence of the courts’ acceptance of Gutnick
and the Law Commission’s view that Gutnick’s
“global risk” issues are not easily
solved,129Berezovsky v Michaels130 and Lewis v
King131 remain England and Wales’ leading statements of
authority. For their contribution to this article’s attempt to place
States on some sort of continuum in terms of litigation favourability for firms
in internet defamation claims, several aspects of
these decisions justify
In Berezovsky, the Court (in a 3:2 majority decision) assumed
jurisdiction over United States-based defendant, Forbes magazine, regarding
exposé it had published in England and elsewhere alleging that the two
Russian-citizen plaintiffs were involved in organised
crime in Russia.
Interestingly, whilst Mr Berezovsky had a “truly
international reputation” as the result
of his business activities in
Russia, both plaintiffs arguably had only rather “tenuous”
England. In dissent, Lord Hoffmann emphasised that a
person’s connections with a State and their reputation therein were
the same thing.132 The majority accepted that the article had a
much smaller number of website hits in England than the United States and that
were “forum shoppers in the most literal
article. However, due to England and Wales’ slight difference in approach, some limited discussion of the topic vis-à-vis the minimum contacts test has been considered useful in order to properly identify similarities and differences in international jurisdiction interpretations.
128 See generally, Schwarzenegger, above n 123, para ; Lewis, above n 124, para  and compare, for example Bangoura, above n 96, paras  – .
129 Law Commission (UK), Defamation and the Internet: A Preliminary Investigation (Scoping Study No 2, December 2002), para [4.5.2]: “Although we have some sympathy with the concerns expressed about the levels of “global risk”, any solution would require an international treaty, accompanied by greater harmonisation of the substantive law of defamation. We do not think that the problem can be solved within the short or medium term. We do not therefore recommend reform in this area at the present time.”
130  UKHL 25;  1 WLR 1004 (HL).
131  EWCA Civ 1329;  EMLR 4 (CA).
132 Berezovsky, above n 124, 1022 – 1024 per Lord Hoffmann. In the case of Mr Berezovsky, his Lordship stated that the plaintiff’s reputation was “merely an inseparable segment of his reputation worldwide”. Numerous commentators have agreed with this view, e.g. A Briggs, “Private International Law” (2000) 71 British Yearbook of International Law 435, 442.
133 Berezovsky, ibid, 1006 – 1026. The evidence was that Forbes had approximately
785,000 subscribers in the United States and Canada, 1900 in England and 13
because both plaintiffs had “acquired” at least a business
reputation in England,134 their Lordships held they must be
entitled to sue for damage to their English reputations.
Similarly, Lewis required the Court to determine whether corruption
allegations contained in two articles proved to have been downloaded in England
allowed English courts to assume jurisdiction over a defendant principally
resident in New York. The Court noted that the plaintiff
was a US
citizen.135 However, holding that he was a “world-
renowned” boxing promoter and “well-known” in England, the
Mr King had a reputation in England that he was entitled to
The effect of Berezovsky and Lewis is that people and companies
may well take their business and/or political137 reputations with
them wherever they go.138 Individuals wishing to sue outside
their home State will almost certainly need to demonstrate that they are known
or well-known in
the relevant foreign country.139 However, where
businesspeople, firms or international celebrities have just tenuous geographic
connections with a State and plead
only local damage to reputation, it is
unlikely they will have their actions stayed.
From a “minimum contacts” and damage to reputation standpoint, the
Courts’ conclusions in Brisard,140
Jameel,141 and Harrods,142 are
Together with website hits, it was estimated a total of 6,000 people had read the article in
134 Compare Bangoura, above n 96 where, at the time of the relevant publication Mr Bangoura had no reputation in Ontario, his reputation there instead being acquired some three years later after relocation from Kenya.
135 Lewis, above n 124, paras  – .
136 Ibid, paras  – .
137 On this point, Lord Hoffmann’s reference to President Yeltsin is noted.
138 See Bangoura’s comments to this effect, above n 96.
139 Compare comments of the Court in Gutnick, above n 8, para  per joint reasons,
suggesting that a plaintiff’s domicile will often determine the scope of a potential defendant’s liability.
140 Al Amoudi v Brisard  EWHC 1062;  1 WLR 113 (HC).
141 Jameel (Yousef) v Dow Jones & Co Inc  EWCA Civ 75;  QB 946 (CA) – not to be confused with the
Jameel v Wall Street Journal Europe Sprl  UKHL 44;  1 AC 359 (“Jameel v WSJ”) case that went to the House of Lords and, very recently, the European Court of Human Rights: Wall Street Journal Europe Sprl v The United Kingdom  ECHR 471 (10 February 2009, App No
28577/05). Jameel v WSJ focused on the two issues of (a) whether corporations such as
the WSJ could recover damages without pleading or proving special damages and
important. Whilst Brisard concerned an open-access website, both
Harrods and Jameel involved website publications of defamatory
material to only a “very small number of subscribers”.143
Although all courts accepted that English law contained a presumption of
damage upon publication, both Jameel and Brisard concluded that
the presumption was “not irrebuttable”.144
Accordingly, in the case of open-access websites, or bulletin boards
or hyperlinks to a defamatory publication from a subscription
courts will not simply infer that publication has occurred. Rather, claimants
must produce evidence that the relevant
defamatory material was in fact
downloaded by more than a de minimis number of readers.145
As to the number of downloads required to cross this threshold, Jameel
establishes that assertion of jurisdiction where material is published to
just two neutral subscribers would be an abuse of process;
suggests that 10 publications may be sufficient.146
Likewise, Schwarzenegger147 and Bunt v
Tilley148 justify brief mention for their respective suggestions
that English courts are unlikely to grant permanent injunctions in internet
defamation cases and that website publishers may be able to escape liability for
unchecked defamatory content that is removed quickly
once brought to their
scope and application of what has come to be called “Reynolds privilege” – an important form of qualified privilege available in the United Kingdom but currently unavailable in New Zealand. In the Court of Appeal:  EWHC 2520;  QB 904, directions were given by Lord Phillips MR (para ) to hear the “presumption of damage point” and two applications in relation to presumption of falsity at the same time as the Jameel (Yousef) v Dow Jones & Co Inc case analysed in this article.
142 Harrods, above n 124.
143 Brisard, above n 140, para ; Jameel, above n 141, paras  and ; and Harrods,
ibid, para .
144 Harrods, ibid, para ; Jameel, ibid, paras ,  and  – ; and Brisard, ibid,
paras  – . Notably, all courts cited Shevill v Presse Alliance SA  AC 959 as authority for the existence of the presumption per se. Thus, to the extent any legislation differences are important in relation to this point, Shevill followed litigation by the parties in the European Court of Justice:  2 WLR 499, and was determined under the Brussels Convention regulating jurisdiction between EC countries.
145 Brisard, ibid, paras  – .
146 Jameel, above n 141, paras  and  and Harrods, above n 124, para . In Jameel, the evidence was that five subscribers had downloaded the offending material. Three of these, however, were connected to the plaintiff’s legal team.
147 Above n 123, para .
148  EWHC (QB) 407;  1 WLR 1243, paras  – ,  – 
and  –  (HC).
4. United States
Perhaps as a consequence of “personal jurisdiction analysis [having]
yet to be reconceived and rearticulated by the Supreme
United States’ defamation law currently evidences a rather confused
approach to jurisdiction150 in internet cases.
Generally speaking, early internet defamation cases apply an
“effects”– based jurisdiction test151 similar to
that presently applied in other common law countries, i.e. a standard focused on
the domicile of the plaintiff and the
location of his or her
harm.152 More recently, however, with the exception of a few
aberrant decisions,153 Circuit courts have ostensibly been charmed
by the view that the internet is a very different new communications medium that
departure from traditional defamation law principles154
in order to ensure State sovereignty is not eviscerated.155
The heretical presumption that
149 ALSScan Inc v Digital Serve Consultants Inc  USCA4 124; 293 F. 3d 707, 713 (4th Circ, 2002). See also, Gator Com Corp v LL Bean Inc  USCA9 593; 341 F. 3d 1072, 1077 (9th Circ, 2003): “No Supreme Court cases ... have addressed the issue of when and whether general jurisdiction may be asserted over a company that does business on the internet”.
150 As P Borchers explains, United States’ jurisdictional principles are “judicially created but limited by the Constitution’s due process clauses” contained in the Fifth and Fourteenth Amendments: “Tort and Contract Jurisdiction via the Internet: The
Minimum Contacts’ Test and the Brussels Regulation Compared” (2003) NILR 401, 402.
See also explanation offered in Burger King Corp v Rudzewicz  USSC 126; 471 US 462 (1985), 471 – 472. Due Process compliance under the Constitution requires courts to be satisfied that defendants have “certain minimum contacts with [the forum state] such that maintenance of the suit does not offend traditional notions of fair play and substantial justice”: International Shoe Co v Washington  USSC 158; 326 US 310 (1945), 316.
151 Specifically, that articulated by the Supreme Court in the non-internet case of Calder v
Jones  USSC 53; 465 US 783 (1984), 788 – 789, citing World-Wide Volkswagen  USSC 12; 444 US 286 (1980), 297
– 298. As D Kidd explains, the Calder test requires courts to satisfy themselves that that:
“the defendant performed (1) an intentional act, (2) aimed at the forum, (3) causing foreseeable harm in the forum”: “Casting the Net: Another Confusing Analysis of Personal Jurisdiction and Internet Contacts in Telco Communications v An Apple a Day” (1998) 32 U. Rich. L. Rev. 505, 517.
152 Compare, for example, Gutnick, above n 8; Bangoura, above n 96 and Lewis, above n
153 Such as Inset Systems Inc v Instruction Set Inc 937 F. Supp 161 (D. Conn, 1996) – broadly holding where websites are published on the internet, a finding of “purposeful availment” is permissible in all locations where the website is accessible. Since Zippo, above n 34,
Inset has received little attention from United States Courts.
154 As articulated in, for example, International Shoe Co, above n 150; Calder, above n 151;
and Asahi Metal Industries v Superior Court  USSC 18; 480 US 102 (1987).
155 See, for example, American Libraries Association v Pataki
969 F. Supp 160 (SDNY, 1997),
website publications are aimless and targeted at no one has also been given
surprising weight.156 Consequently, consistent with the
country’s unparalleled free speech protections afforded to publishers
under the country’s
Constitution as a matter of substantive law,157
America’s approach to jurisdiction in internet cases now differs
markedly from most other countries. Importantly for firms
their exposure to liability when trading abroad, America’s general
approach heavily favours potential defendants.158 Additionally,
United States’ tests for jurisdiction tend to be formulated without
particular reliance on the issue of publication.159
Regarding particulars of its contemporary approach, like Canada and England
and Wales, America requires satisfaction of a foreseeability
test, i.e. a
sufficient connection between the proposed forum and claim. However,
unlike its common law counterparts, America also requires proof of a
sufficient connection between the proposed forum
and defendant in the
form of “purposeful availment”.160 Hence,
169: “Typically states’ jurisdictional limits are related to geography; geography, however, is a virtually meaningless construct on the Internet”; ALS Scan, above n 149, 713 – 714. Compare comments Callinan J in Gutnick, above n 8. In this sense, the United States’ view is somewhat aligned with that in Canada, and to a lesser extent, England and Wales, but out of step with Australia.
156 Zippo, above n 34,was the first Court to formulate a distinction between “interactive”
and “passive” websites on this basis. Barrett v The Catacombs Press 44 F. Supp 2d 717 (ED Pa, 1999) aligns the posting of messages on discussion/bulletin boards with the maintenance of passive websites. See comments of A Spencer, above n 43, 74 and 97 also to this effect.
157 See New York Times v Sullivan, above n 92, 279 – 280 and Curtis Publishing Co v Butts 288
US 130 (1967), 155.
158 By contrast, if looking to sue in the United States for defamation suffered, New
Zealand firms should note the Supreme Court’s statement in Piper Aircraft Co v Reyno 454
US 235 (1981), 255 – 256 that foreign plaintiffs are entitled to “less deference” in forum non conveniens assessments.
159 V Black and M Deturbide, “Braintech Inc v Kostiuk: Adjudicatory Jurisdiction for Internet Torts” (2000) 33 C.B.L.J. 427, 436. For an historical account of the United States’ various tests, see S Tita and G Seamby, “The ‘Effects Test’: Unifying Personal Jurisdiction Case Law in Internet Defamation Cases” (2000) 33 L.T.J. 1.
160 See generally, International Shoe Co, above n 152; Cybersell Inc v Cybersell Inc  USCA9 3689; 130 F. 3d 414 (9th Circ, 1997) – websites simply advertising or soliciting sales held unable to support finding of jurisdiction without “something more”; Toys R Us Inc v Step Two SA 318 F 3d
446, 454 (3rd Circ, 2003); and Young v New Haven Advocate  USCA4 228; 315 F. 3d 256, 261(4th Circ,
2002), leave to appeal to Supreme Court denied:  USSC 3811; 538 US 1035 (2003): “In
determining whether specific jurisdiction exists, we traditionally ask (1)
whether the defendant purposefully availed
itself of the privileges of
conducting activities in the forum state, (2)
“minimum contacts”161 approach is frequently
summarised as being one of “effects plus
Young v New Haven Advocate163 is the dominant
authority presently applied by courts required to decide jurisdiction in
internet defamation cases. In Young, a Connecticut newspaper posted
allegedly defamatory articles on its website regarding a prison warden resident
in Virginia. In a
manner consistent with Zippo’s
“sliding-scale” model (whereby the constitutionality of a
Court’s assertion of personal jurisdiction “is
proportionate to the nature and quality of commercial activity that an entity
conducts over the Internet”),164 the Court carefully examined
the nature and extent of the defendant’s activities in Virginia.
Specifically, the Court noted
that the defendant had no offices, personnel or
subscribers in Virginia; that it derived no “substantial” revenue
activities in Virginia; and did not “regularly” solicit or do
business there.165 The Court accepted that the offending articles
had been downloaded in Virginia. However, ultimately declining to assert
the Fourth Circuit concluded that the defendant had not manifested
“an intent to aim [its] websites or the posted articles
whether the plaintiff's claim arises out of the defendant's forum-related activities, and (3) whether the exercise of personal jurisdiction over the defendant would be constitutionally reasonable.”
161 World-Wide Volkswagen, above n 151, 291 – 292; International Shoe Co, above n 150.
162 M Greenberg, “A Return to Lilliput: The LICRA v Yahoo! case and the Regulation of
Online Content in the World Market” (2003) 18 Berkeley Tech.L.J. 1191, 1193.
163 Above n 160. Interestingly, Young was delivered just three days after Gutnick, above n
164 In Zippo, the Court distinguished between what it called “active”, “passive” and
“interactive” websites, stating (in a now widely-cited passage) at 1124: “At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in the foreign jurisdiction. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange
information with the host computer. In these cases, the exercise of jurisdiction is
determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.”
165 Young, above n 160, 260.
Virginian audience”, i.e. the defendant had not sufficiently targeted
Acknowledging that the meaning of “targeting” is
yet to be categorically defined,167 the effect of Young
for New Zealand firms operating “commercially interactive”
websites is that they are unlikely to be “hauled”
for defamatory material accessible in America unless they have both
targeted their website at the particular forum state and evidence an
express intent to interact with its residents.168 However, where
firms’ website content is accessible in States whose appeals are
determined by the Third Circuit,169 firms should be aware that
the jurisdiction test is somewhat less difficult for potential plaintiffs to
satisfy. Indeed, in contrast
to Young’s cumulative test, the Third
Circuit has articulated its factors as
[T]he mere operation of a commercially interactive website should not subject
the operator to jurisdiction anywhere in the world.
Rather, there must be
evidence that the defendant “purposefully availed” itself of
conducting activity in the
forum state by directly targeting its website to the
state, knowingly interacting with residents of the forum state via its website,
or through sufficient other related contacts.
Consequently, firms may find themselves required to account in
defamation if they either target the foreign forum or
166 Ibid, 258 – 259, citing ALS Scan, above n 149. Importantly, in ALS Scan, the Court stated that it was “adopting and adapting the Zippo [sliding-scale] model”: at 714.
167 See, for example, Catacombs Press, above n 156, and Northwest Healthcare Alliance Inc v Healthgrades.Com Inc  USSC 3241; 538 US 999 (9th Circ, 2003) – considering assertion of jurisdiction appropriate and holding that by offering Washington residents healthcare information that was of interest to them via its website, the defendant had “purposely interjected itself” into the Washington market.
168 Young, above n 160, currently appears to be applied by at least the Fifth and Sixth
Circuits: Revell v Lidov  USCA5 522; 317 F.3d 467, 475 (5th Circ, 2002); Neogen Corp v Neo Gen Screening Inc  USCA6 75; 282 F.3d 883, 890 (6th Circ, 2002). States whose appeals are governed by these Courts are: 5th Circuit – Los Angeles, Massachusetts and Texas; 6th Circuit – Kentucky, Michigan, Ohio and Tennessee.
169 Namely Deleware, New Jersey and Pennsylvania.
170 Toys R Us, above n 160, 454. In declining to exercise jurisdiction on the ground that
the defendant had not targeted New Jersey, the Court considered it
particularly significant that the defendant’s advertised
only be shipped to Spanish addresses and that the cost of items was given only
in Pestas and Euro. The Third Circuit’s
approach appears to be followed by
at least the Seventh Circuit (covering Illinois, Indiana and Wisconsin):
Jennings v AC Hydraulic  USCA7 437; 383 F.3d 546 (7th Circ, 2004).
residents.171 Hence, particularly as technologies further
develop, firms wishing to minimise their potential online defamation liability
carefully review the technical “interactivity” of any
advertisement or information they wish to make available on the
Internet as well
as the extent to which they are “actually and deliberately us[ing] their
website to conduct commercial transactions
or other activities with residents of
the forum”. Where any doubts over content’s defamatory nature exist
cannot be delayed, it may be that the most “passive”
means of communication available should be preferred172 and, if
possible, directed only to a limited number of locations.173
5. European Union
By acting to harmonise its Member States’ laws, the European Union has become an important powerbroker in many international issues.174
As such, brief comment on EU developments vis-à-vis jurisdiction and
choice of law in defamation cases is perhaps instructive
looking to assess both their current and likely future online trading
In terms of jurisdiction, with the exception of Denmark, all Member
States are today governed by the “Brussels I” Regulation.175
171 Fairbrother v Am Monument Found LLC 340 F. Supp 2d 1147, 1156 (D Colo, 2004). Whilst Circuit Courts governing appeals in other States are yet to address the issue in detail, District Court decisions in these States suggest that firms providing merely “passive” information websites will not be found to have “purposefully availed” themselves of the “privileges of conducting activities in the forum state”.
172 See, however, best practice recommendations below: Section VI(A). Indeed, the most
prudent level of “interactiveness” may well turn on whether the material is an isolated or regular communication.
173 See comments of P Borchers, above n 150, 410 suggesting that, whilst generally imprecise, the “two ends of the [jurisdiction] spectrum” are “fairly clear”: if statements
are targeted primarily to persons within the forum, jurisdiction exists; if primarily targeted to persons outside the forum, minimum contacts are lacking. However, if a person’s reputation is regional or national, it is unclear whether jurisdiction is properly asserted throughout the region or State or at only a single location.
174 In addition to its 27 current Member States, the European Union includes three legislative bodies, namely the European Commission, the European Parliament and the Council of the European Union. It is these legislative bodies which are collectively responsible for the continued harmonisation of disparate Member State laws:
<http://europa.eu/index_en.htm> last viewed 4 January 2009. As to harmonisation of laws obligations, see also Treaty on European Union, 29 July 1992, 1992 O.J. (C 191) 5.
175 Council Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the
updates the Brussels Convention 1968176 and regulates all civil
and commercial cross-border disputes.177 Pursuant to Art
5(3), tort litigation such as defamation is decided by courts in the place
where the “harmful event occurred
or may occur”. Whilst Brussels I
does not apply to non-Member State defendants unless the parties have agreed
writing,178 where an EU plaintiff sues a defendant
resident outside the EU, Art 4 provides that the jurisdiction rules of
State apply. Applied to firms’ internet
publications, where EU plaintiffs179 wish to sue in defamation
outside the EU, they can invoke the benefit of their own national or place of
domicile rules. However, consistent
with America’s privileging of its own
plaintiffs,180 where New Zealand-resident firms attempt to sue for
defamation committed against them in the EU, the dispute will be governed by the
general rules formulated for the European Community.181
Regarding choice of law procedures, in its recent Rome II
negotiations182 on the law applicable to non-contractual
recognition and enforcement of judgments in civil and commercial matters (“Brussels I”). Brussels I entered into force on 1 March 2002. A full text version of Brussels I is
available at: <http://curia.europa.eu/common/recdoc/convention/en/c- textes/2001R0044.htm> last viewed 4 January 2009.
176 Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Denmark has continued to follow this Convention.
177 Denmark follows the Brussels Convention 1968.
178 Brussels I, Arts 3, 22 and 23.
179 Importantly, because Brussels I applies to parties on the basis of “domicile” and not nationality, New Zealand-incorporated firms or subsidiaries resident in the EU may also be able to avail themselves of the Regulation’s benefits: Brussels I, Art 2.
180 See Piper Aircraft, above n 158.
181 For additional discussion on this point and Brussels I generally, see C Kotuby, “International Developments and External Effects: The Federalization of Private International Law in the European Community and its Consequences for Transnational Litigants” (2002) 21 J.L.& Com 157, 166.
182 For discussion of defamation issues under Rome II, see generally, A Warshaw, “Uncertainty from Abroad: Rome II and the Choice of Law for Defamation Claims” (2007) 32 Brook.J.Int’l L. 269.
183 Rome II is an extension of the Rome Convention 1980 (“Rome I”). Rome I governs
contractual disputes and applies regardless of whether parties are resident in an EU Member State: Art 1. Significantly, under Rome I, the choice of law applicable to contractual claims is “the law of the country with which it is most closely connected”: Art
4(1). This approach is very similar to America’s defamation standard. Rome II does not
interfere with the E-Commerce Directive, which provides that in commercial cross- border disputes, the applicable law is that of the country of origin: Council Directive
2000/31/EC of 8 June 2000 on Certain Legal Aspects of the Information
the EU expended much effort attempting to formulate a rule for online publishing that was satisfactory to both the media and defamation plaintiffs.184 Whilst significant debate was had over various “place-of- harm” and “place-of-publication” drafts, EU Members and the European Parliament and Commission were unfortunately unable to reach consensus. Consequently, despite the Commission being mandated to produce a further Report on applicable law in defamation disputes,185 a significant gap has been left in the adopted version.186
Accordingly, if nothing else, Rome II’s failure regarding online
publishing emphasises the tremendous difficulties likely to be encountered in
any attempt to secure an international treaty governing
D. Newlands & the New Zealand Position
The Newlands litigation187 arose out of a
generally-accessible article entitled “Wannabe Unis” made available
on the defendant newspaper’s
website in 2002.188 The
article included a list of “degree mills” that offered “to
confer degrees based on life experience”.
University of Newlands –
a New Zealand company in the process of creating an
Services, in Particular Electronic Commerce, in the Internal Market, 2000 O.J. (L 178) 4.
184 See Art 3(2) of Rome II’s first draft: Justice and Home Affairs, Consultation on a
Preliminary Draft Proposal for a Council Regulation on the Law Applicable to Non-contractual Obligations (2002), available at: <http://www.eadp.org/main7/position/RomeII ConsultationPrelimDraft030502.doc> last viewed 24 August 2009. Compare Art 3(1) of the second draft: Commission of the European Communities Proposal for a regulation of the European Parliament and the Council on the Law Applicable to Non-contractual Obligations, presented on 27 July 2003; COM (2003) 427 and Final Proposal: Final Report on the Proposal for a Regulation of the European Parliament and of the Council on the Law Applicable to Non-contractual Obligations (June 2005), both available at:
383447> last viewed 24 August 2009.
185 The adopted Rome II mandates this Study be furnished no later than 31 December
2008. However, at the time of this article’s writing, a published version of the
Commission’s findings did not appear to be available.
186 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007
on the law applicable to non-contractual obligations (Rome II). Rome II was finally adopted on 11
July 2007 and comes into application on 11 January 2009. The Regulation applies to all
damage occurring after 20 August 2007: European Commission, The Rome II Regulation, available at: <http://eur-lex.europa.eu/LexUriServ/site/en/oj/2007/l_199/l_199200
70731en00400049.pdf> last viewed 24 August 2009.
187 University of Newlands v Nationwide News Pty Ltd, above n 12.
internet-based University, alleged that its inclusion in the list of
“degree mills” was defamatory and likely to
cause the company
pecuniary, professional and academic harm. The Australian defendant did not
have a place of business in
New Zealand. The webserver that
controlled its website (www.theaustralian.news.com.au)
was also located and operated in Australia. The defendant protested against
the Court’s jurisdiction and applied to have
the proceeding stayed or
In the High Court, Gendall AJ considered New Zealand’s assumption of
jurisdiction appropriate. In reaching this decision,
His Honour affirmed
Gutnick’s conclusions that publication and the tort of defamation
occur at the location where the defamatory material is
downloaded.190 His Honour held that that Gutnick’s
conclusions were not restricted to subscription websites.191
Additionally, Gendall AJ recorded that a decision to upload material on
the internet carried with it an associated risk of being sued
In the Court of Appeal, the case’s focus shifted slightly based on the Court’s view that the issue of where “publication” had occurred was “but one” factor in the overall assessment of whether a plaintiff had a “good arguable case” on the merits193 that justified assumption of jurisdiction.194 Opining that the determinative “good arguable case” issue was the appellant’s ability to prove any sort of publication in New Zealand, the Court considered it appropriate to “proceed on the basis, without deciding, that Gutnick states the law in [New Zealand]”.195 The Court noted the absence of evidence confirming anyone other than the plaintiff had downloaded the offending material. Viewing this aspect significant in terms of the plaintiff’s ability to show loss as required by s
6 of the Defamation Act,196 the Court considered it inappropriate
to assert jurisdiction and accordingly dismissed the
189 High Court decision, paras  – ; Court of Appeal decision, paras  – .
190 At para .
191 At paras  – . On this point Gendall AJ disagreed with the obiter comments
expressed by the Court in Macquarie Bank Ltd v Berg  NSWSC 1110.
192 At para .
193 As per requirement under High Court Rules, r 219(a).
194 Court of Appeal decision, para .
195 At para .
196 At paras  – . The fact that the plaintiff company’s name change from
University of Newlands to University of Newlands Ltd potentially created
Declining the University’s application for leave to
appeal,198 the Supreme Court affirmed that the Court of Appeal was
correct to hold that the case did not turn on the issue of the
in which defamation occurs in New Zealand as a
result of material being available on the internet”.199
Significantly, however, the Court also recorded that its decision did not
rule out the possibility of revisiting Gutnick’s application in an
appropriate case.200 Consequently, whilst internet publications
can certainly give rise to defamation liability in New Zealand,201
the scope of Gutnick’s application and New Zealand’s
position on associated issues arising since is far from clear.
E. Best Practice Recommendations202
In light of the uncertainties left unresolved by Newlands, this
section draws together key themes and issues identified in the discussion above
and sets out some practical best practice recommendations
for New Zealand firms
(a) minimise their risk of being required to account for internet defamation in a foreign Court; and/or
(b) maximise their chances of litigation success where persons publish
defamatory comments against them online.
The existence of proposals offering theoretical solutions in this area (e.g.
development of an international treaty, dispute resolution
arbitration, abandonment of the Gutnick model in favour of a place of
origin or minimum contacts test or elimination of internet
terms of it having a “reputation” able to be harmed was also noted: paras  – .
197 At paras  – .
198 It is noted that the s 13 of the Supreme Court Act 2003 imposes relatively stringent
requirements for the granting of leave to appeal. Specifically, the Supreme Court must not grant leave unless the applicant shows that: “(a) the appeal involves a matter of general or public importance; or (b) a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard; or (c) the appeal involves a matter of general commercial significance”.
199 Supreme Court decision, para .
200 At paras  – .
201 See, for example, O’Brien v Brown  DCR 1065.
202 The usual disclaimers fully excluding liability apply to this
article. Consultation with appropriate professionals should therefore
before any action is taken on any content/recommendations contained in this
defamation, etc.) is acknowledged. However, whilst perhaps offering the
most effective means of achieving long-term resolution
of the debate
presently occurring between nation States in this area, such proposals are of
little assistance to New Zealand
firms wishing to protect themselves from
liability under current laws. Accordingly, this section’s focus is on
practical guidelines which firms can utilise to protect themselves
today. To this extent, nine steps emerge as useful considerations
with respect to (a). Under (b), three factors are identified as
particularly crucial. Each factor is briefly
1. “Afghanistan to Zimbabwe”: how to limit exposure to the
“spectre of ‘global’ liability”203
(a) Become familiar with foreign defamation laws
Complexities and disparities in countries’ various substantive laws can
render this step an arduous task.204 However, firms can restrict
the scope of initial inquires to becoming familiar with the laws of the
countries in which material is
uploaded205 and those from which its
website has significant traffic or generates substantial sales orders.
Through such analysis firms
should aim to glean sufficient insight into foreign
defamation laws to allow informed choices to be made as to whether or not
“targeting” or maintenance of a “substantial
connection” with a particular forum is desirable or prudent
firm’s particular risk
203 Gutnick, above n 8, paras  per joint reasons and  per Kirby J.
204 Discussion of countries’ various substantive laws is outside the scope of this article
but see authorities cited at n 12.
205 Indeed, it is clear that firms cannot complain about jurisdiction being asserted for
determination of world-wide damages in the country of upload because a
positive choice has been made by the publisher to upload material/send
etc from that location: O Bigos, above n 41; Gutnick, above n
(b) Review all online content206
& exercise responsible self-censorship
Broadly speaking, publication of accurate information is the best means of
minimising the risk of becoming embroiled in defamation
Accordingly, particularly in countries where firms have clearly identifiable
competitors,207 deliberate or reckless inclusion of any
content that misrepresents an individual or company should be avoided in all
communications.208 Likewise, in countries
where strict free speech laws prevail, close attention should be paid to the
nature of accurate content intended
for publication. Indeed, in countries such
as China and Saudi Arabia publication of some accurate content is prohibited per
(e.g. explicit anatomy sites or material deemed unfavourable to the
Government or Royal family), albeit that much offending content
“blocked” or “filtered” at a State level before reaching
its intended targets.209 Where firms are unsure about the content
of any material they have or wish to make available online, legal advice should
It is important that archived material is not forgotten in this
exercise, and that such material is checked for compliance with
laws in all
forums where it is accessible and an appropriate warning against treating it as
Employers should also consider the impact of employees’ use of non- web
or direct communications technologies (e.g. Kazaa and
If uncomfortable with any of the risks generated by employees’
internet use, firms should develop employee internet use
206 Whilst this article’s discussion has focused on the internet’s most popular applications
– namely the World-Wide-Web and email, the comments included here apply equally to
“blogs”, “pop-ups”, and other internet content posted by a business or its employees.
207 As numerous commentators have emphasised, litigation statistics (at least in the
United States) suggest that most defamation litigation arises as the result of competitor complaint: R Viguerie and A Keaty, “The World Wide Reach of the Internet: Can a Company Protect Itself From the Jurisdiction of Foreign Courts?” (2006) 34 Academy of Marketing Science Journal 87, 88.
208 Attention is drawn to Courts’ holdings in Canada and England and Wales that individuals/companies can take their business/political reputations with them wherever they go in the world: Bangoura, above n 96; Lewis, above n 124; and Berezovsky, above n
209 B Earle and G Madek, above n 83, 256.
210 Loutchansky, above n 25, para .
211 A Spencer, above n 43, 94 – 97 and 119 –
policies and require agreement to these as part of their employment contract
If the cost of legal advice is prohibitive or delayed release of material is
unacceptable, compliance with the international community’s
conservative defamation laws is recommended.212 As a general
stringency guide, overall, Australian and New Zealand defamation laws are
slightly more liberal than those of Canada
and England and Wales. However, the
free speech and protection of reputation balance struck in all these countries
is far less favourable
to publishers than that applied by America.213
Where material concerns a celebrity, business or political figure or other
“well-known” individual, it may be sensible
to restrict publication
to the location where the subject is domiciled, or primarily or ordinarily
resides and routinely returns
to after visiting other
(c) Restrict user access & utilise “interactive”
For firms concerned about vulnerability in high-risk forums (i.e. those
applying more stringent defamation laws than New Zealand),
use of geo-location
technologies215 and subscription-only website access should
be explored. However, in any application of these technologies it is important
to recognise that such techniques may provide little to no additional
protection in locations where Gutnick’s conclusions
Whilst potentially costly to implement, LICRA216 affirms
that while technologies cannot currently prevent internet users’ attempts
to access content with 100% effectiveness,
“filters” and other
212 See generally, A Beyer, “Defamation on the Internet: Joseph Gutnick v Dow Jones”  MurUEJL 26; A Mansfield, “Cyber-libelling the Glitterati: Protecting the First Amendment for Internet Speech” (2007) 9 Vanderbilt J. Ent. & Tech. Law 897.
213 N Shanmuganathan and L Caddy, “Liability of online publishers following Gutnick” (2003) 153 NLJ 7071; J Hughes, “The Internet and the Persistence of Law” (2003) 44
B.C.L.Rev. 359, 364: “[free speech] is the most obvious area of law where the Internet is unlikely to produce substantial harmonization of legal norms”.
214 See generally, Bangoura, above n 96; Lewis, above n 124; and Berezovsky, above n 124.
215 For useful discussion of available technologies, see generally D Svantesson, “Geo-
Location Technologies and Other Means of Placing Borders on the ‘Borderless’ Internet” (2004) 23 Marshall J.Comp.&Info.L. 101.
216 LICRA, above n 51, 1185 and 1203.
with success rates sufficient to protect against liability (i.e. upwards of
90% effectiveness) can be installed to prevent residents in particular
locations from accessing all or part of a website’s content
so that a firm
complies with local laws.217 Establishment of separate corporate
entities for the conduct of business in each State where a firm interacts with
residents can also
reduce litigation risk. Likewise, firms’ hosting of
separate websites specifically designed to comply with States’
defamation laws can further safeguard against risk.218
Regarding subscription and “interactive”219 websites,
whilst perhaps a double-edged sword,220 the key benefit of
interactivity for firms is the ability to bind viewers through
“clickwrap” contracts or “user
which protect their own interests. Additionally, as case law above
establishes, where firms actively attempt to limit their global
refusing to accept subscriptions or credit card payments222 from
residents in locations with defamation laws unacceptable to them, without more,
courts outside both the plaintiff’s home
country and State of domicile are
unlikely to assert jurisdiction.223
217 LICRA, ibid; B Cooper, “The US Libel Law Conundrum and the Necessity of
Defensive Corporate Measure in Lessening International Internet Libel Liability” (2005)
21 Conn.J.Int’l L. 127, 152 – 153.
218 R Viguerie and A Keaty, above n 207, 88. The existence and growing prevalence in
internet users’ use of anonymising devices (e.g. Safe Web) in response to geo-location technologies is noted: B Earle and G Madek, above n 83, 256 – 257.
219 Zippo, above n 34.
220 In that it establishes an interaction sufficient for a foreign forum’s assertion of
jurisdiction: B Cooper, above n 217, 151.
221 “Clickwrap” contracts generally require readers desiring access to a particular website
222 U Kohl, above n 11, 1051.
223 See, for example, Bangoura, above n 96; Toys R
Us, above n 160. Compare Dow Jones’ arguable knowing acceptance of
subscriptions from Australian residents in Gutnick, above n
(d) Use disclaimers & structure transactions carefully
Whilst clearly of limited use under an unrestricted Gutnick standard,
in forums applying some sort of “minimum contacts” or
“targeting” test,224 disclaimers stating, for example,
that content is intended only for readers in New Zealand, can weigh in
in courts’ evaluations of the propriety of
asserting jurisdiction. Particularly for firms operating e-commerce websites,
contract inclusion of “terms and conditions”
vis-à-vis forum selection, choice of law, limitation/exclusion of
damages, or even mandating arbitration is prudent.225 Regarding
the particulars of such provisions, legal advice should be sought to ensure that
wording is as advantageous as possible
to the relevant firm.
(e) Keep businesses small/mid-sized
Acknowledging that this recommendation may appear ironic given that growth is
the key objective driving many firms’ decisions
to pursue e- commerce
activities, most commentators agree that large international entities are
for defamation litigation due to
perceptions of “deep pockets” and the increased likelihood of
or having a judgment satisfied.226
(f) Insure & attempt to arbitrate if sued
Absent an international Convention, disparate jurisdictional tests for
defamation on the internet are unlikely to converge unassisted.
firms publishing online should purchase insurance to insulate themselves from
damages claims in foreign forums and the
“spectre of ‘global’
224 See Section IV above.
225 R Viguerie and A Keaty, above n 207, 88; P Swire, “Elephants and Mice Revisited:
Law and Choice of Law on the Internet” (2005) 153 U.Pa.L.Rev. 1975, 1989 – 1993; S Bone, “Private Harms in the Cyber-World: The Conundrum of Choice of Law for Defamation Posed by Gutnick v Dow Jones & Co” (2005) 62 Wash.& Lee L.Rev. 279, 314 –
335 (suggesting an arbitration model for internet defamation similar to the World
Intellectual Property Organisation system applicable to trademark and domain name disputes).
226 B Cooper, above n 217, 146 and P Swire, “Of Elephants, Mice and Privacy: International Choice of Law and the Internet” (1998) 32 Int’l Law 991, 991 – 1020.
227 Gutnick, above n 8, para  per Kirby J. Indeed, as
Pitt J stated in Bangoura, above n
(g) Monitor the law for changes
As the above discussion highlights, internet defamation law is in a state of
flux. Firms concerned about minimising their litigation
risk should therefore
keep themselves up-to-date with developments in case law and international
agreements and/or seek legal advice
from time-to- time regarding matters which
may affect their internet publishing decisions.
(h) Remove defamatory content as soon as possible when notified
In Barrick,228 the Ontario Court of Appeal expressly
identified the defendant’s delay in removing material once notified of its
status and failure to publish a retraction as important
factors supporting its increase in the lower Court’s damages
Hence firms should judiciously consider requests for removal of content in a
timely fashion.229 In appropriate cases, publication of an apology
(as well as retraction statement) will likely prove prudent.
(i) Lobby Governments to progress and conclude
an international Convention harmonising internet law
Rome II’s failure regarding defamation230 emphasises that
achieving international consensus in laws governing the internet will not be
easy. Nevertheless, with Courts and commentators
increasingly pleading for both
domestic and multi-lateral action,231 it may be that firms’
lobbying of legislators can stimulate faster progression of
94, 572: “I would be surprised if [the Washington Post] were not insured for damages for libel or defamation anywhere in the world, and if it is not, then it should be”. See also, R Jery and M Mekel, “Coverage for Cyber-Risks: An Overview of Insurers’ Responses to the Perils of E-Commerce” (2002) 8 Conn.Ins. L.J. 7, 25.
228 Barrick, above n 9,  – .
229 Note Court’s comments to this effect in Bunt, above n 148 in the context of ISPs.
230 See Section IV(E).
231 See, for example, Gutnick, above n 8 per Kirby J: “In default of ... international
agreement, there are limits on the extent to which national courts can provide radical solutions”; M Fagan, “Regulating Speech Across Borders: Technology vs Values” (2003)
9 Mich. Telecomm.& Tech. L.Rev. 395, 448: “[the internet] requires
international arrangements that transcend state borders and originate beyond
negotiations in this area. Indeed, all countries have a national interest in
ensuring that the legal implications for firms
engaging in e- commerce
activity are as predictable as possible.
2. “Global highways”232 & domestic laws: how to maximise litigation success if defamed by publishers abroad
(a) Evaluate chances of substantive success
& shop around for the most favourable forum
Litigation is an expensive and often lengthy process. Hence, situations
where vindication of reputation is the primary aim
convinced a good cause of action in defamation exists, it is important to ensure
both that the preferred forum selected for suit is willing to award an
appropriate level of damages or order an injunction, and that the
plaintiff is not “judgment proof”.233 As a general
guide, permanent injunctions will rarely be granted for internet defamation in
England and Wales.234 Canada, however, appears happy to order such
relief and, in appropriate cases (e.g. those involving severe or malicious
will even award punitive damages.235
(b) Consider enforceability of any judgment likely to be
Whilst jurisdiction and choice of law issues in internet disputes are often intertwined, a judgment’s recognition and enforceability in a foreign forum is a separate matter236 and seldom straightforward.237
Importantly, as discussed above,238 judgments secured by a
New Zealand firm in one EU Member State against a defendant domiciled in another
are enforceable as a matter
of right under Brussels I. Additionally, numerous
Reciprocal Enforcement of Judgments Treaties
232 E Clark and G Puig, “When Global Highways Intersect Local Laws: Defamation via the Internet – Dow Jones & Company Inc v Gutnick”  HCA 56” (2001) 12 JLIS 271.
233 In the sense that assets are located offshore, is impecunious or likely to “disappear”/move operations to a different State: B Cooper, above n 217, 145 – 148; A Beyer, above n 212, para ; P Swire, above n 225, 1019.
234 Schwarzenegger, above n 123; Bunt, above n 148.
235 Barrick, above n 7.
236 Although note that the Court in Braintech, above n 34, does appear to somewhat
conflate these issues.
237 See, for example, significant obstacles encountered in LICRA, above n 51.
238 See Part C, 5.
ensure that New Zealand-secured judgments are enforceable in most
Commonwealth and various other trade-important countries.239
Significantly, however, New Zealand currently has no Reciprocal Enforcement
of Judgments Treaty with the United States. Consequently,
unless a New
Zealand/other foreign judgment can also be sustained under the First Amendment,
it is unlikely to be enforced in the
(c) Insure against internet defamation-related loss
Although most insurance companies are unlikely to compensate on a mere
allegation of damage to reputation,241 insurers may provide relief
where judgment is secured against a defendant whose assets are subsequently
revealed to be out of reach
or who is impecunious.
If all printers were determined not to print anything till they were sure it
would offend nobody, there would be very little printed.242
The overwhelming need for harmonisation and clarity in international internet
defamation laws cannot be understated.
Whilst praised for its heightened flexibility over strict application of
traditional defamation law principles, Gutnick’s approach to
jurisdiction and associated issues continues to be heavily
criticised as “overbroad”.243 To date, however, an
alternative satisfactory to the broader international community has not been
advanced.244 In contrast to English and Canadian courts’
application of a “foreseeability” test,
239 See Reciprocal Enforcement of Judgments Act 1934, s 3 and relevant Regulations thereunder as to countries with which New Zealand has a Reciprocal Enforcement of Judgments Treaty.
240 LICRA, above n 51; Bachchan v India Abroad Publications Inc 585 NYS 2d 661, 665 (NY
SupCt, 1992); Telnikoff v Matusevitch 702 A.2d 230 (Md, 1997). For additional discussion, see R Sack, Sack on Defamation: Libel, Slander and Related Problems (3rd ed, 1999) § 15.4; B Cooper, above n 217, 135 – 139; S Bone, above n 225, 294 – 297.
241 R Jery and M Mekel, above n 227.
242 B Franklin, An Apology for Printers (1973 reprint), 7.
243 See Section IV(A) above and note, for example, comments of N Garrett, “Dow Jones
& Co v Gutnick: Will Australia’s Long Jurisdictional Reach Chill Internet Speech World- Wide?” (2004) 13 Pac.Rim L.& Pol’y J. 61, 88.
244 Note failed Rome II negotiations.
United States’ courts currently require defendants to specifically
target a forum. Although certainly correct on its facts,
Newlands245 has not significantly advanced New
Differing views on the proper free speech and protection of reputation
balance and the extent to which the internet actually differs
communications technologies are at the heart of States’ present failure to
achieve consensus on a uniform
approach for internet defamation
disputes.246 Nevertheless, Brussels I does offer some hope of
future resolution in that it demonstrates that countries are willing to
and achieve outcomes that fairly balance the interests of both
plaintiffs and defendants. Likewise, the EU’s articulated
commitment247 to achieving harmonisation of Member States’
internet laws as soon as is practicable is promising.248 In the
interim, however, firms must continue to respond to the internet’s new and
changing realities. Accordingly, it is suggested
that firms would be sensible
to take cognisance of the issues and recommendations identified in this article
and to subsequently
develop their own best practices and precedents specific to
the nature of their online presence.
245 Above n 12.
246 Compare, for example, Courts’ views in Braintech, above n 34; Barrick, above n 7;
Berezovsky, above n 124; Young, above n 160 and Gutnick, above n 8.
247 See Rome II, above n 186.
248 Regarding the likely nature of any uniform standard, it is accepted that the sophistication of geo-location technologies will, undoubtedly, continue to develop. However, with the EU’s power-brokering role rapidly increasing and empirical evidence continuing to show that business-to-consumer sales growth in mature markets such as America is flattening, non-EU States may have little choice but to also adopt whatever jurisdictional test EU Members ultimately agree upon. For discussion of internet use evidence, see generally, R McGann, “Web Usage Growth Flatlines in US, Other Mature Markets”, available at: <http://www.clickz.com/3491501> last viewed 22 December
2008; Nielson Online, NetRatings Report on E-Commerce (2007), above n 4 and K Myktyn, “The Importance of the Law for E-Commerce Strategies” (2005) 22 Information Systems Management Journal 50.