Dow Jones & Company Inc v Gutnick
 HCA 56 (10 December 2002)
DOW JONES & COMPANY INC APPELLANT
JOSEPH GUTNICK RESPONDENT
Dow Jones & Company Inc v Gutnick
 HCA 56
10 December 2002
Appeal dismissed with costs.
On appeal from the Supreme Court of Victoria
G R Robertson QC with T F Robertson SC for the appellant (instructed by Gilbert & Tobin)
J L Sher QC with M F Wheelahan for the respondent (instructed by Schetzer, Brott & Appel)
B W Walker SC with S E Pritchard intervening on behalf of Amazon.com Inc & Ors (instructed by Blake Dawson Waldron)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Dow Jones & Company Inc v Gutnick
Torts - Defamation - Publication - Internet - Computer server - Material complained of housed on computer server in United States of America - Uploaded to World Wide Web - Viewable at subscription news site on World Wide Web - Downloaded to computer in Victoria - Whether material complained of was published in Victoria.
Torts - Defamation - Publication - Single publication rule.
Private international law - Choice of law - Law of the place of the tort (lex loci delicti) - Defamation - Damage to reputation - Where material complained of was published - Material complained of made comprehensible when downloaded in Victoria - Place of plaintiff's reputation - Victorian law governs substantive rights.
Private international law - Service out of jurisdiction - Rules of Court - Service permitted without leave of Court - Conditions of service - Action brought in respect of tort committed in Victoria - Action brought in respect of damage suffered in Victoria - Action limited to damage to reputation in Victoria - Service validly effected - Victoria a convenient forum.
Words and Phrases - "publication", "single publication rule".
Supreme Court (General Civil Procedure) Rules 1996 (Vic), rr 7.01(1)(i), 7.01(1)(j) and 7.05(2)(b).
1. GLEESON CJ, McHUGH, GUMMOW AND HAYNE JJ. The appellant, Dow Jones & Company Inc ("Dow Jones"), prints and publishes the Wall Street Journal newspaper and Barron's magazine. Since 1996, Dow Jones has operated WSJ.com, a subscription news site on the World Wide Web. Those who pay an annual fee (set, at the times relevant to these proceedings, at $US59, or $US29 if they are subscribers to the printed editions of either the Wall Street Journal or Barron's) may have access to the information to be found at WSJ.com. Those who have not paid a subscription may also have access if they register, giving a user name and a password. The information at WSJ.com includes Barron's Online in which the text and pictures published in the current printed edition of Barron's magazine are reproduced.
2. The edition of Barron's Online for 28 October 2000 (and the equivalent edition of the magazine which bore the date 30 October 2000) contained an article entitled "Unholy Gains" in which several references were made to the respondent, Mr Joseph Gutnick. Mr Gutnick contends that part of the article defamed him. He has brought an action in the Supreme Court of Victoria against Dow Jones claiming damages for defamation. Mr Gutnick lives in Victoria. He has his business headquarters there. Although he conducts business outside Australia, including in the United States of America, and has made significant contributions to charities in the United States and Israel, much of his social and business life could be said to be focused in Victoria.
3. The originating process in the action which Mr Gutnick brought against Dow Jones was served on it outside Australia. The writ recorded that service was effected in reliance upon two of the provisions of the Supreme Court (General Civil Procedure) Rules 1996 (Vic) ("the Victorian Rules") (rr 7.01(1)(i) and 7.01(1)(j)) providing for service of process outside Australia. Under those Rules, the scheme of which is broadly similar to that considered in Agar v Hyde, a plaintiff may serve originating process without first obtaining the leave of the Court. If the defendant does not submit to the jurisdiction by filing an unconditional appearance, the plaintiff must obtain leave to proceed, demonstrating that the originating process makes claims of a kind which one or more of the paragraphs of r 7.01(1) mention. If the defendant wishes to contend that the Court should decline to exercise its jurisdiction or should set aside service, the defendant may enter a conditional appearance and apply for either or both of two forms of order - an order staying further proceedings in the matter or an order setting aside service of the originating process.
4. The principal issue debated in the appeal to this Court was where was the material of which Mr Gutnick complained published? Was it published in Victoria? The answer to these questions was said to affect, even determine, whether proceedings in the Supreme Court of Victoria should, as Dow Jones contended, be stayed on the ground that that Court was a clearly inappropriate forum for determination of the action. The procedural steps which give rise to that issue can be described as follows.
The proceedings below
5. Dow Jones entered a conditional appearance to the process served upon it. It applied to a Judge of the Supreme Court of Victoria (Hedigan J) for an order that service of the writ and statement of claim be set aside or an order that further proceedings in the matter be permanently stayed.
6. In the course of the proceedings before the primary judge, Mr Gutnick proffered an undertaking to sue in no place other than Victoria in respect of the matters which founded his proceeding. The primary judge recorded in his reasons that Mr Gutnick "seeks to have his Victorian reputation vindicated by the courts of the State in which he lives [and that he] is indifferent to the other substantial parts of the article and desires only that the attack on his reputation in Victoria as a money-launderer should be repelled and his reputation re-established".
7. A deal of evidence was led before the primary judge seeking to establish the way in which, and the place at which, information found at a website like WSJ.com is published. It will be necessary to say something more about what that evidence revealed. His Honour concluded that the statements of which Mr Gutnick sought to complain were "published in the State of Victoria when downloaded by Dow Jones subscribers who had met Dow Jones's payment and performance conditions and by the use of their passwords". He rejected Dow Jones's contention that the publication of the article in Barron's Online occurred at the servers maintained by Dow Jones in New Jersey in the United States. Being therefore of the opinion that the defamation of which Mr Gutnick complained had occurred in Victoria, Hedigan J concluded that Victoria was not a clearly inappropriate forum for trial of the proceeding and dismissed Dow Jones's application.
8. Dow Jones sought leave to appeal to the Court of Appeal of Victoria but that Court (Buchanan JA and O'Bryan AJA) refused leave to appeal, holding that the decision at first instance was plainly correct. By special leave, Dow Jones now appeals to this Court. The appeal to this Court should be dismissed.
9. Argument of the appeal proceeded from an acceptance, by both parties, of certain principles. First, it is now established that an Australian court will decline, on the ground of forum non conveniens, to exercise jurisdiction which has been regularly invoked by a plaintiff, whether by personal service or under relevant long-arm jurisdiction provisions, only when it is shown that the forum whose jurisdiction is invoked by the plaintiff is clearly inappropriate. Secondly, it is now established that in trying an action for tort in which the parties or the events have some connection with a jurisdiction outside Australia, the choice of law rule to be applied is that matters of substance are governed by the law of the place of commission of the tort. Neither party sought to challenge either proposition. Rather, argument focused upon where was the place of publication of the statements of which Mr Gutnick complained. Dow Jones contended that the statements were published in New Jersey and that it was, therefore, the law of that jurisdiction which would govern all questions of substance in the proceeding. This was said to have two consequences: first, that the claims made in the originating process were not of a kind mentioned in any of the relevant paragraphs of r 7.01(1) of the Victorian Rules and, secondly, that because the law governing questions of substance was not Victorian law, Victoria was a clearly inappropriate forum for the trial of the proceeding.
"Jurisdiction" and "publishing"
10. Two of the terms that must be used in considering the questions that arise in this matter are terms that can give rise to difficulty. "Jurisdiction", as was pointed out in Lipohar v The Queen, is a generic term that is used in a variety of senses. In the present matter there are two distinct senses in which it is used - first, as referring to the amenability of a defendant to process in such a way as will give a court authority to decide the controversy which that process seeks to agitate and, secondly, as referring to a particular territorial or law area or law district.
11. "Publishing" and its cognate words is also a term that gives rise to difficulty. As counsel for the interveners pointed out it may be useful, when considering where something is published to distinguish between the (publisher's) act of publication and the fact of publication (to a third party), but even that distinction may not suffice to reveal all the considerations relevant to locating the place of the tort of defamation.
12. Since so much was made in argument, both in this Court and in the courts below, of what was said to be the unusual features of publication on the Internet and the World Wide Web, it is necessary to say something about what the evidence revealed about those matters.
13. For present purposes, it is convenient to adopt what was said in that evidence without diverting to consider what qualification to, or amplification of, that evidence might be necessary to give a complete and entirely accurate description of the Internet or the World Wide Web. (There was, for example, no evidence adduced that revealed what electronic impulses pass or what electronic events happen in the course of passing or storing information on the Internet.)
14. One witness called by Dow Jones, Dr Clarke, described the Internet as "a telecommunications network that links other telecommunication networks". In his opinion, it is unlike any technology that has preceded it. The key differences identified by Dr Clarke included that the Internet "enables inter-communication using multiple data-formats ... among an unprecedented number of people using an unprecedented number of devices [and] among people and devices without geographic limitation".
15. The World Wide Web is but one particular service available over the Internet. It enables a document to be stored in such a way on one computer connected to the Internet that a person using another computer connected to the Internet can request and receive a copy of the document. As Dr Clarke said, the terms conventionally used to refer to the materials that are transmitted in this way are a "document" or a "web page" and a collection of web pages is usually referred to as a "web site". A computer that makes documents available runs software that is referred to as a "web server"; a computer that requests and receives documents runs software that is referred to as a "web browser".
16. The originator of a document wishing to make it available on the World Wide Web arranges for it to be placed in a storage area managed by a web server. This process is conventionally referred to as "uploading". A person wishing to have access to that document must issue a request to the relevant server nominating the location of the web page identified by its "uniform resource locator (URL)". When the server delivers the document in response to the request the process is conventionally referred to as "downloading".
17. Dow Jones has its editorial offices for Barron's, Barron's Online and WSJ.com in the city of New York. Material for publication in Barron's or Barron's Online, once prepared by its author, is transferred to a computer located in the editorial offices in New York city. From there it is transferred either directly to computers at Dow Jones's premises at South Brunswick, New Jersey, or via an intermediate site operated by Dow Jones at Harborside, New Jersey. It is then loaded onto six servers maintained by Dow Jones at its South Brunswick premises.
Dow Jones's contention
18. The principal burden of the argument advanced by Dow Jones on the hearing of the appeal in this Court was that articles published on Barron's Online were published in South Brunswick, New Jersey, when they became available on the servers which it maintained at that place.
19. In the courts below, much weight appears to have been placed by Dow Jones on the contention that a relevant distinction was to be drawn between the apparently passive role played by a person placing material on a web server from which the would-be reader had actively to seek the material by use of a web browser and the (comparatively) active role played by a publisher of a widely circulated newspaper or a widely disseminated radio or television broadcast. In this Court, these arguments, though not abandoned, were given less prominence than policy arguments based on what was said to be the desirability of there being but a single law governing the conduct of a person who chooses to make material available on the World Wide Web.
20. Dow Jones submitted that it was preferable that the publisher of material on the World Wide Web be able to govern its conduct according only to the law of the place where it maintained its web servers, unless that place was merely adventitious or opportunistic. Those who, by leave, intervened in support of Dow Jones generally supported this contention. The alternative, so the argument went, was that a publisher would be bound to take account of the law of every country on earth, for there were no boundaries which a publisher could effectively draw to prevent anyone, anywhere, downloading the information it put on its web server.
21. The rule propounded by Dow Jones may have a greater appearance of certainty than it would have in fact. "Adventitious" and "opportunistic" are words likely to produce considerable debate. Does a publisher's decision to have a server in a country where the costs of operation are low, or the benefits offered for setting up business are high, warrant either of these descriptions? Does a publisher's decision to have servers in two, widely separated, states or even countries warrant either description, or is it simply a prudent business decision to provide security and continuity of service? How is the user to know which server dealt with a particular request? Is the fact that one rather than the other server met the request "adventitious"?
22. To the extent that the suggested rule would require reference only to the law of the place in which the server is located, it is a rule that would evidently be convenient to the party putting material on a web server. But that does not conclude debate. The convenience of one party is important to it, but how would such a rule fit with other, no less relevant, considerations? In particular, how would it fit with the nature of the competing rights and interests which an action for defamation must accommodate?
23. It is necessary to begin by making the obvious point that the law of defamation seeks to strike a balance between, on the one hand, society's interest in freedom of speech and the free exchange of information and ideas (whether or not that information and those ideas find favour with any particular part of society) and, on the other hand, an individual's interest in maintaining his or her reputation in society free from unwarranted slur or damage. The way in which those interests are balanced differs from society to society. In some cases, for example as between the States in Australia, the differences in substantive law might be said to be differences of detail rather than substance, although even then it may be doubted that this is an accurate characterisation of the effect of the differences in the defamation laws of the Australian States. Whether or not that is so, comparing the law of defamation in different countries can reveal differences going well beyond matters of detail lying at the edge of debate.
24. It follows that identifying the law which is to govern questions of substance, in an action for defamation where there is some foreign element, may have substantial consequences for the resolution of the proceeding. No less importantly, those who would seek to order their affairs in a way that will minimise the chance of being sued for defamation must be able to be confident in predicting what law will govern their conduct. But certainty does not necessarily mean singularity. What is important is that publishers can act with confidence, not that they be able to act according to a single legal system, even if that system might, in some sense, be described as their "home" legal system. Activities that have effects beyond the jurisdiction in which they are done may properly be the concern of the legal systems in each place. In considering where the tort of defamation occurs it is important to recognise the purposes served by the law regarding the conduct as tortious: purposes that are not confined to regulating publishers any more than they are confined to promoting free speech.
25. The tort of defamation, at least as understood in Australia, focuses upon publications causing damage to reputation. It is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care. Yet a publication made in the ordinary course of a business such as that of bookseller or news vendor, which the defendant shows to have been made in circumstances where the defendant did not know or suspect and, using reasonable diligence, would not have known or suspected was defamatory, will be held not to amount to publication of a libel. There is, nonetheless, obvious force in pointing to the need for the publisher to be able to identify, in advance, by what law of defamation the publication may be judged. But it is a tort concerned with damage to reputation and it is that damage which founds the cause of action. Perhaps, as Pollock said in 1887, the law went "wrong from the beginning in making the damage and not the insult the cause of action" for slander but it is now too late to deny that damage by publication is the focus of the law. "It is the publication, not the composition of a libel, which is the actionable wrong."
26. Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension.
27. The bilateral nature of publication underpins the long-established common law rule that every communication of defamatory matter founds a separate cause of action. That rule has found reflection from time to time in various ways in State legislation and it would be a large step now to depart from it.
28. If the place in which the publisher acts and the place in which the publication is presented in comprehensible form are in two different jurisdictions, where is the tort of defamation committed? That question is not to be answered by an uncritical application of some general rule that intentional torts are committed where the tortfeasor acts or that they are committed in the place where the last event necessary to make the actor liable takes place. Nor does it require an uncritical adoption of what has come to be known in the United States as the "single publication" rule, a rule which has been rejected by the Court of Appeal of New South Wales in McLean v David Syme & Co Ltd.
Single publication rule
29. Some 27 States of the United States, including California, Illinois, New York, Pennsylvania and Texas, by legislation or by judicial decision have adopted what is identified as the single publication rule. That rule is set out in §577A of the Restatement of Torts, 2d, (1977), which is headed "Single and Multiple Publications", and reads:
"(1) Except as stated in Subsections (2) and (3), each of several communications to a third person by the same defamer is a separate publication.
(2) A single communication heard at the same time by two or more third persons is a single publication.
(3) Any one edition of a book or newspaper, or any one radio or television broadcast, exhibition of a motion picture or similar aggregate communication is a single publication.
(4) 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
(c) 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."
30. In Firth v State of New York, the New York Court of Appeals decided that the one-year statute of limitation in New York runs from the first posting of defamatory matter upon an Internet site and that the single publication rule applies to that first posting.
31. To trace, comprehensively, the origins of the so-called single publication rule, as it has come to be understood in the United States, may neither be possible nor productive. It is, however, useful to notice some of the more important steps that have been taken in its development. Treating each sale of a defamatory book or newspaper as a separate publication giving rise to a separate cause of action might be thought to present difficulties of pleading and proof. Following early English authority holding that separate counts alleging each sale need not be pleaded in the declaration, American courts accepted that, where the defamatory matter was published in a book or newspaper, each publication need not be pleaded separately. Similarly, proof of general distribution of a newspaper was accepted as sufficient proof of there having been a number of separate publications. It was against this background that there emerged, at least in some American States by the late nineteenth century, the rule that a plaintiff could bring only one action against a defendant to recover damages for all the publications that had by then been made of an offending publication. The expression "one publication" or, later, "single publication" was first commonly used in this context.
32. In the early decades of the twentieth century, the single publication rule came to be coupled with statements to the effect that the place of that single publication was the place where the newspaper or magazine was published. The source of this added proposition was given as a case of prosecution for criminal libel where the question was that raised by the Sixth Amendment to the United States Constitution and its reference to the "state or district wherein the crime shall have been committed". Despite this difference in the context in which the question of location arose, the statement that the place of publication was where the newspaper or magazine was published was sometimes taken as stating an element of (or at least a consequence of) the single publication rule applied to civil defamation suits.
33. This single publication rule was understood as having consequences for the application of statutes of limitation which, in many States in the United States, provided only a short time before action for defamation was statute barred. The time of the "single publication" was fixed as the time of the first publication, it being thought that "[I]f the bar of the statute of limitations can be lifted by [later sales] we may no longer term it a 'statute of repose' which makes effective a purpose which the Legislature has conceived to be imperative".
34. It was not until the middle of the twentieth century and the advent of widely disseminated mass media of communication (radio and nationally distributed newspapers and magazines) that choice of law problems were identified. In some cases, the law of the forum was applied without any explicit recognition of the possible application of some other law. But then, by a process of what was understood as logical extension of the single publication rule, the choice of law to be applied came to be understood as largely affected by, perhaps even to be determined by, the proposition that only one action could be brought in respect of the alleged defamation, and that the place of publication was where the person publishing the words had acted.
35. For present purposes, what it is important to notice is that what began as a term describing a rule that all causes of action for widely circulated defamation should be litigated in one trial, and that each publication need not be separately pleaded and proved, came to be understood as affecting, even determining, the choice of law to be applied in deciding the action. To reason in that way confuses two separate questions: one about how to prevent multiplicity of suits and vexation of parties, and the other about what law must be applied to determine substantive questions arising in an action in which there are foreign elements.
36. Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata, issue estoppel, and what has come to be known as Anshun estoppel, all find their roots in that policy. The application of that policy to cases in which the plaintiff complains about the publication of defamatory material to many people in many places may well lead to the conclusion that a plaintiff may not bring more than one action in respect of any of those publications that have occurred before the proceeding is instituted or even, perhaps, before trial of the proceeding is complete. Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits or, after judgment, by application of the equally well-established principles about preclusion, including principles of Anshun estoppel. Conversely, where a plaintiff brings one action, account can properly be taken of the fact that there have been publications outside the jurisdiction and it would be open to the defendant to raise, and rely on, any benefit it may seek to say flows from applicable foreign law. If some of the publications of which complaint is or could be made are publications that have occurred outside Australia, or if action has been instituted outside Australia in respect of publications made in this country, or overseas, there is no evident reason why the questions thus presented are not to be answered according to the established principles just mentioned. The application of these principles, however, says nothing about questions of jurisdiction or choice of law. In particular, the application of these principles does not require that a single place of publication be identified in every defamation case no matter how widely the defamatory material is disseminated.
37. Publications within Australia, but in different States or Territories, may require consideration of additional principles. Although the choice of law to be made in such a case is again the law of the place of the tort, questions of full faith and credit or other constitutional questions may well arise. It is unnecessary to pursue those matters further at the moment and we return to cases in which there are international rather than solely intranational aspects.
Widely disseminated publications
38. In the course of argument much emphasis was given to the fact that the advent of the World Wide Web is a considerable technological advance. So it is. But the problem of widely disseminated communications is much older than the Internet and the World Wide Web. The law has had to grapple with such cases ever since newspapers and magazines came to be distributed to large numbers of people over wide geographic areas. Radio and television presented the same kind of problem as was presented by widespread dissemination of printed material, although international transmission of material was made easier by the advent of electronic means of communication.
39. It was suggested that the World Wide Web was different from radio and television because the radio or television broadcaster could decide how far the signal was to be broadcast. It must be recognised, however, that satellite broadcasting now permits very wide dissemination of radio and television and it may, therefore, be doubted that it is right to say that the World Wide Web has a uniquely broad reach. It is no more or less ubiquitous than some television services. In the end, pointing to the breadth or depth of reach of particular forms of communication may tend to obscure one basic fact. However broad may be the reach of any particular means of communication, those who make information accessible by a particular method do so knowing of the reach that their information may have. In particular, those who post information on the World Wide Web do so knowing that the information they make available is available to all and sundry without any geographic restriction.
40. Because publication is an act or event to which there are at least two parties, the publisher and a person to whom material is published, publication to numerous persons may have as many territorial connections as there are those to whom particular words are published. It is only if one starts from a premise that the publication of particular words is necessarily a singular event which is to be located by reference only to the conduct of the publisher that it would be right to attach no significance to the territorial connections provided by the several places in which the publication is available for comprehension.
41. Other territorial connections may also be identified. In the present case, Dow Jones began the process of making material available at WSJ.com by transmitting it from a computer located in New York city. For all that is known, the author of the article may have composed it in another State. Dow Jones is a Delaware corporation. Consideration has been given to these and indeed other bases of territorial connection in identifying the law that might properly be held to govern an action for defamation where the applicable choice of law rule was what came to be known as the proper law of the tort.
42. Many of these territorial connections are irrelevant to the inquiry which the Australian common law choice of law rule requires by its reference to the law of the place of the tort. In that context, it is defamation's concern with reputation, and the significance to be given to damage (as being of the gist of the action) that require rejection of Dow Jones's contention that publication is necessarily a singular event located by reference only to the publisher's conduct. Australian common law choice of law rules do not require locating the place of publication of defamatory material as being necessarily, and only, the place of the publisher's conduct (in this case, being Dow Jones uploading the allegedly defamatory material onto its servers in New Jersey).
43. Reference to decisions such as Jackson v Spittall, Distillers Co (Biochemicals) Ltd v Thompson and Voth v Manildra Flour Mills Pty Ltd show that locating the place of commission of a tort is not always easy. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of tortious claims that may be made. Especially is that so in cases of omission. In the end the question is "where in substance did this cause of action arise"? In cases, like trespass or negligence, where some quality of the defendant's conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt.
44. In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher's conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.
Set aside service or stay proceedings?
45. It is convenient to deal at this point with Dow Jones's contentions that service of the originating process in the proceeding brought by Mr Gutnick should be set aside, and that further proceedings should be stayed on the ground that Victoria was a clearly inappropriate forum for trial of the action.
46. Rule 7.01(1) of the Victorian Rules provided that:
"(1) Originating process may be served out of Australia without order of the Court where -
(i) the proceeding is founded on a tort committed within Victoria;
(j) the proceeding is brought in respect of damage suffered wholly or partly in Victoria and caused by a tortious act or omission wherever occurring".
Because Mr Gutnick alleged that he suffered damage in Victoria as a result of the publication made in Victoria when the Barron's Online article was comprehensible to a reader, r 7.01(1)(j) was plainly engaged. Mr Gutnick's proceeding was brought in respect of damage alleged to have been suffered at least partly in Victoria and alleged to have been caused by a tortious act or omission. As r 7.01(1)(j) makes plain, that paragraph of the rule has operation wherever the tortious act or omission is alleged to have occurred.
47. It matters not, in this case, whether par (i) of the rule applied. It follows from the fact that par (j) was satisfied that the jurisdiction of the Supreme Court of Victoria was regularly invoked by service of the proceeding on Dow Jones. Was Victoria, nevertheless, a clearly inappropriate forum? Dow Jones contended that Victoria was a clearly inappropriate forum because the substantive issues to be tried would be governed by the laws of one of the States of the United States. Although reluctant, at first, to identify whether the state whose laws applied was New Jersey or New York, in the end Dow Jones submitted that the defamation had occurred in New Jersey and that the substantive issues in the proceeding were, therefore, to be governed by the law of that State.
48. As has been noted earlier, Mr Gutnick has sought to confine his claim in the Supreme Court of Victoria to the damage he alleges was caused to his reputation in Victoria as a consequence of the publication that occurred in that State. The place of commission of the tort for which Mr Gutnick sues is then readily located as Victoria. That is where the damage to his reputation of which he complains in this action is alleged to have occurred, for it is there that the publications of which he complains were comprehensible by readers. It is his reputation in that State, and only that State, which he seeks to vindicate. It follows, of course, that substantive issues arising in the action would fall to be determined according to the law of Victoria. But it also follows that Mr Gutnick's claim was thereafter a claim for damages for a tort committed in Victoria, not a claim for damages for a tort committed outside the jurisdiction. There is no reason to conclude that the primary judge erred in the exercise of his discretion to refuse to stay the proceeding.
Actions for publications in several places
49. More difficult questions may arise if complaint were to be made for an injury to reputation which is said to have occurred as a result of publications of defamatory material in a number of places. For the reasons given earlier, in resolving those difficulties, it may be necessary to distinguish between cases where the complaint is confined to publications made in Australia, but in different States and Territories, and cases where publication is alleged to have occurred outside Australia, either with or without publication within Australia. Several kinds of difficulty may arise and each requires separate identification and consideration, even if the treatment of one may have consequences for some other aspect of the matter.
50. First, there may be some question whether the forum chosen by the plaintiff is clearly inappropriate. If there is more than one action brought, questions of vexation may arise and be litigated either by application for stay of proceedings or application for anti-suit injunction.
51. Secondly, a case in which it is alleged that the publisher's conduct has all occurred outside the jurisdiction of the forum may invite attention to whether the reasonableness of the publisher's conduct should be given any significance in deciding whether it has a defence to the claim made. In particular, it may invite attention to whether the reasonableness of the publisher's conduct should be judged according to all the circumstances relevant to its conduct, including where that conduct took place, and what rules about defamation applied in that place or those places. Consideration of those issues may suggest that some development of the common law defences in defamation is necessary or appropriate to recognise that the publisher may have acted reasonably before publishing the material of which complaint is made. Some comparison might be made in this regard with the common law developing by recognising a defence of innocent dissemination to deal with the position of the vendor of a newspaper and to respond to the emergence of new arrangements for disseminating information like the circulating library.
52. In considering any of these matters, it should go without saying that it is of the first importance to identify the precise difficulty that must be addressed. In particular, in cases where the publisher of material which is said to be defamatory has acted in one or more of the United States, any action that is brought in an Australian court in respect of publications that were made in America, would, in applying the law of the place of commission of the tort, have to give effect to the rather different balance that has been struck in the United States between freedom of speech and the individual's interest in reputation. Furthermore, it may well be that the resolution of a claim for publications made in one or more of the United States would be affected by the application by the law of the relevant state of a form of the single publication rule.
53. Three other matters should be mentioned. In considering what further development of the common law defences to defamation may be thought desirable, due weight must be given to the fact that a claim for damage to reputation will warrant an award of substantial damages only if the plaintiff has a reputation in the place where the publication is made. Further, plaintiffs are unlikely to sue for defamation published outside the forum unless a judgment obtained in the action would be of real value to the plaintiff. The value that a judgment would have may be much affected by whether it can be enforced in a place where the defendant has assets.
54. Finally, if the two considerations just mentioned are not thought to limit the scale of the problem confronting those who would make information available on the World Wide Web, the spectre which Dow Jones sought to conjure up in the present appeal, of a publisher forced to consider every article it publishes on the World Wide Web against the defamation laws of every country from Afghanistan to Zimbabwe is seen to be unreal when it is recalled that in all except the most unusual of cases, identifying the person about whom material is to be published will readily identify the defamation law to which that person may resort.
55. The appeal should be dismissed with costs.
56. GAUDRON J. I agree with Gleeson CJ, McHugh, Gummow and Hayne JJ, for the reasons their Honours give, that the appeal in this matter should be dismissed. I also agree with their Honours' observations under the heading "Actions for publications in several places". In respect of one aspect of those observations, I would wish to add some comments of my own.
57. Much of the argument in the present case was concerned with the possibility of several actions being brought in several different jurisdictions in respect of the same defamatory matter. Seemingly, it was to overcome that possibility that the "single publication" rule was adopted in several of the American States. That rule has been described as "a legal fiction which deems a widely disseminated communication ... to be a single communication regardless of the number of people to whom, or the number of states in which, it is circulated."
58. It may be accurate to apply the description "legal fiction" to a rule that deems multiple publications to be a single publication. However, it is not apparent that the single publication rule set out in § 577A of the Restatement of Torts, 2d, (1977) deems that to be the case. Rather, as stated, the rule selects "single publication" as a device to define the circumstances in which a plaintiff can be prevented from bringing more than one action.
59. For many years it has been usual in this country for defamation plaintiffs to bring a single action in respect of nationwide or multi-state publications. Gorton v Australian Broadcasting Commission is an example of that practice. In an action of that kind, the ordinary choice of law rules apply so that, in respect of each State or Territory in which the material was published, it is open to the parties to rely on the law of that State or Territory.
60. It may be that the practice exemplified in Gorton v Australian Broadcasting Commission is not simply a practice but the necessary consequence of the principle that underlies the decision in Port of Melbourne Authority v Anshun Pty Ltd. In that case it was held that the Port of Melbourne Authority was estopped from maintaining a separate action under a contract of indemnity by reason that the claim for indemnity could have been pursued in earlier proceedings brought by an injured workman against the parties to the contract and, in which proceedings, the contracting parties claimed contribution against each other as tortfeasors.
61. In Anshun, the estoppel was said to arise, not because of res judicata or issue estoppel, as those concepts are traditionally understood, but because the claim for indemnity was "a defence to [the] claim [for contribution] in the first action ... [and] so closely connected with the subject matter of that action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery". In this regard, the estoppel was seen to be an aspect of "the extended principle expressed by Sir James Wigram VC in Henderson v Henderson".
62. It was said in Henderson v Henderson that:
"where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case."
63. For present purposes, it is unnecessary to explore the circumstances in which an estoppel will be held to arise in consequence of a failure to raise a matter in earlier proceedings. Rather, it is important to note that the principle as stated in Henderson v Henderson stems from the nature of judicial power. The purpose of judicial power is the final determination of justiciable controversies and such controversies are not finally determined unless all issues involved in a controversy are submitted for determination or, if they are not, are treated as no longer in issue.
64. If a plaintiff complains of multiple and simultaneous publications by a defendant of the same defamatory matter there is, in essence, a single controversy between them, notwithstanding that the plaintiff may have several causes of action governed by the laws of different jurisdictions. Accordingly, if, in such a case, an issue arises as to whether an Australian court is a clearly inappropriate forum, a very significant consideration will be whether that court can determine the whole controversy and, if it cannot, whether the whole controversy can be determined by a court of another jurisdiction.
65. As the respondent has limited his controversy with the appellant to the publication of defamatory matter in Victoria, the controversy is one that can be determined in its entirety by the Supreme Court of that State and there can be no question of multiple suits in different jurisdictions.
66. KIRBY J. Lord Bingham of Cornhill recently wrote that, in its impact on the law of defamation, the Internet will require "almost every concept and rule in the field ... to be reconsidered in the light of this unique medium of instant worldwide communication." This appeal enlivens such a reconsideration.
67. The facts are set out in other reasons. Essentially, Dow Jones & Company Inc, a corporation registered in the United States of America ("the appellant"), published material on the Internet that was allegedly defamatory of Mr Gutnick ("the respondent") who sued in the Supreme Court of Victoria to recover damages to vindicate his reputation.
The issues of jurisdiction, applicable law and forum
68. History of the proceedings: Hedigan J ("the primary judge") dismissed a summons by which the appellant had sought an order for the stay or dismissal of proceedings brought against it by the respondent. This appeal comes from the refusal of the Court of Appeal of the Supreme Court of Victoria to grant leave to the appellant to appeal from the judgment of the primary judge. The Court of Appeal concluded that the decision was not attended by sufficient doubt to warrant its intervention. It confirmed the judgment of the primary judge. The attention of this Court has therefore been addressed to that judge's reasons.
69. Three issues: The appeal concerns issues that commonly arise where a non-resident foreign party seeks a stay, or the setting aside, of process that brings it involuntarily before an Australian court:
(1) The jurisdiction of the Australian court to decide the action;
(2) If jurisdiction exists, the law that will apply, in accordance with the principles of private international law, in the exercise of such jurisdiction; and
(3) Having regard to the resolution of those questions, whether the proceedings should be stayed, or the process set aside, on the ground that the Australian jurisdiction selected by the plaintiff is an inconvenient forum when compared to another jurisdiction propounded by the resisting party.
70. The arguments of the parties: Although these three issues are separate and distinct, they are closely related. One vital question, relevant to the answer to each issue, is where the cause of action, identified by the respondent, arose. The respondent sues for defamation by the appellant. He submits that the essential elements of the tort of defamation are: (1) publication; (2) in a form comprehended by a third party; (3) causing damage to the plaintiff which, in the case of proof of publication of defamatory matter, is presumed. Upon this basis the respondent asserts that his proceedings were "founded on a tort committed within Victoria".
71. If Victoria is identified as the place of the tort, that finding would provide a strong foundation to support the jurisdiction of the Supreme Court of Victoria; and to sustain a conclusion that the law to be applied to the proceedings, as framed, is the law of Victoria. These conclusions would, in turn, provide the respondent with powerful arguments to resist the contention that the proceedings should be stayed, or set aside, on inconvenient forum grounds.
72. It is unsurprising that the thrust of the appellant's argument was that this Court should re-examine the common law of defamation in Australia so as to reformulate its elements, either generally or specifically, for the law as it applies to publication on the Internet. In particular, the appellant urged this Court to re-express the common law so as to abolish the "primitive" rule, that every publication of defamatory material constitutes a new and separate tort. At least in respect of publications appearing on the Internet, the appellant submitted that the Court should express the common law to treat defamation as "one global tort (rather than a multiple wrong committed by every single publication and every internet hit)".
73. If the common law were re-expressed in this way, the appellant's argument proceeded, the "publication" in this case had occurred, and the tort had been completed, in the United States. Specifically, this had occurred in the State of New Jersey where the matter complained of was uploaded on the appellant's website or in the State of New York where it was composed and finally edited.
74. Practical considerations: Behind these arguments of legal authority, principle and policy lay the forensic advantages perceived by the respective parties. That is not unusual. Nor is it in any way reprehensible. But it should be recognised at the outset. The respondent was entitled to regard the law of defamation in Victoria as more favourable to his interests than the law in the United States. The latter is greatly influenced by the jurisprudence of the First Amendment to the Constitution of that country. That jurisprudence is more favourable to the appellant. The jockeying over the issues in this appeal is thus not concerned only with large questions of law. For the parties, the stakes are more basic and more urgent.
Reformulation of the common law of Australia
75. Reasons for restraint: The responsibilities of this Court extend to the re-expression of the common law of Australia. However, the Court is bound by the Constitution. No principle of the common law may be inconsistent with its language or implications. Nor may the common law be inconsistent with valid applicable legislation, whether federal, State or of a Territory. In re-expressing the common law from time to time, regard may be had to the general developments of statute law.
76. Sometimes, asked to reformulate an established principle of the common law, this Court will decline the invitation, considering that any alteration of the law should be left to the legislature. Factors relevant to such decisions have included the effect on competing interests that should be consulted before any alteration of the law; the existence of significant economic implications of any change; the enactment of legislation evidencing parliamentary attention to the subject; the perceived undesirability of imposing retrospective liability, especially criminal liability, on persons; and the desirability, in particular cases, of not making any change until after intensive analysis of social data and public consultation, facilities typically unavailable to a court. The fundamental restraint upon substantial judicial innovation in the expression of the law is imposed by the character of a court's functions as such and an acceptance that, under the Constitution, major legal changes in the Australian Commonwealth are the responsibility of the other branches of government, not of the courts.
77. Reasons for action: Despite these expressions of restraint, important reformulations of the common law have been made by this Court, including in recent times. Some of these have had very great significance. They have reversed long held notions of common law principle. Sometimes they have been stimulated by contemporary perceptions of the requirements of fundamental human rights. In the present case, in support of its arguments, the appellant invoked the "revolutionary" features of the technology that supplies the Internet. It submitted that those features permitted, and required, a reconsideration of the law governing the elements of the tort of defamation.
The features of the Internet and the World Wide Web
78. The Internet: The history of the Internet, its ubiquity, universality and utility have been described in the reasons of many courts in the United Kingdom, the United States, Canada, Australia and elsewhere. In the expert evidence before the primary judge in this case, there was no relevant dispute about the main features of the Internet and of the World Wide Web specifically. Some additional evidence relevant to those features was placed before this Court, without objection, in support of the application of a number of organisations which were granted leave to intervene. Although the supporting affidavits were not part of the record in the appeal, and cannot be so treated, most of the features of the Internet there described confirm the evidence given at trial. They are, in any case, readily ascertainable from standard works that describe the Internet's basic elements.
79. It is important to consider these features because they afford the foothold for the appellant's argument that the Internet is such a new and different medium of human communication that it demands a radical reconceptualisation of the applicable common law, specifically with respect to the tort of defamation.
80. It has been estimated that, by the end of 2002, the number of Internet users will reach 655 million. The number continues to grow exponentially. It is estimated that in some countries, the number of users doubles every six months. The Internet is essentially a decentralised, self-maintained telecommunications network. It is made up of inter-linking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term "cyberspace". This is a word that recognises that the interrelationships created by the Internet exist outside conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The Internet is accessible in virtually all places on Earth where access can be obtained either by wire connection or by wireless (including satellite) links. Effectively, the only constraint on access to the Internet is possession of the means of securing connection to a telecommunications system and possession of the basic hardware.
81. The World Wide Web: The Web is a forum consisting of millions of individual "sites". Each site contains information provided by, or to, the creator of that site. When a publisher of information and opinion wishes to make its content available on the Web, it commonly does so by creating a "website" and "posting" information to that site. Such a website is a collection of electronic messages maintained on a type of computer known as a "web server". Typically, this is controlled either by the publisher concerned or by a third party contracted by the publisher to provide "web hosting" services.
82. An Internet user may access the information maintained on a website provided the user knows, or can ascertain, the Internet address of the relevant website. By entering that address into the user's web browser, the user will be directed to that website. Once the user locates the website in this way, the user may be required to take additional steps to access information stored on the web server associated with the website. Thus, to post an article to a website, a publisher must prepare a version in digital (computer readable) format. Such an article becomes part of the digital collection of data known as a web page. Such a web page is transmitted to a web server. It, along with the other web pages, comprises the website.
83. By posting information on a website, the publisher makes the content available to anyone, anywhere, having access to the Web. However, accessibility will depend on whether there is open access (under which any web user can access the site); subscription access (under which only web users who register, and commonly pay, for the service can secure access); combination access (where only a portion of a site may be accessed after registration and/or payment of a fee) and restricted access (access limited to specified users authorised by the website operator to view the website, eg employees of a particular company).
84. Difficulty of controlling access: The nature of the Web makes it impossible to ensure with complete effectiveness the isolation of any geographic area on the Earth's surface from access to a particular website. Visitors to a website automatically reveal their Internet Provider ("IP") address. This is a numerical code that identifies every computer that logs onto the Internet. The visitor may also disclose certain information about the type of browser and computer that the visitor uses. The IP addresses of users are generally assigned to them by an Internet Service Provider ("ISP"). The user's IP address will remain the same whenever and wherever the user "surfs" the Web. But some ISPs do not assign a permanent IP address. Instead, they assign a new IP address every time a user logs onto the Web. Because of these features, there is presently no effective way for a website operator to determine, in every case, the geographic origin of the Internet user seeking access to the website.
85. For similar reasons, with respect to subscription accounts, checking the issuing location of a credit card provided by a user would not afford a universally reliable means of ascertaining the geographic location of a user seeking access to a website. Thus, even assuming that a geographic restriction could be introduced isolating Australia (and hence Victoria) by reference to the origin of the visitor's credit card, a resident of Australia with a credit card issued by a United States bank, would be able to access sites that might be denied to an Australian resident with an Australian credit card, although both users were physically located in Australia.
86. In addition to these difficulties of controlling access to a website by reference to geographic, national and subnational boundaries, the Internet has recently witnessed a rapid growth of technologies ("anonymising technologies") that enable Internet users to mask their identities (and locations). By reason of these developments, the provision of cost effective, practical and reliable identity verification systems, that could afford a universally reliable recognition of the point of origin of an Internet user, has not emerged. This is why the nature of Internet technology itself makes it virtually impossible, or prohibitively difficult, cumbersome and costly, to prevent the content of a given website from being accessed in specific legal jurisdictions when an Internet user in such jurisdictions seeks to do so. In effect, once information is posted on the Internet, it is usually accessible to all Internet users everywhere in the world. Even if the correct jurisdiction of an Internet user could be ascertained accurately, there is presently no adequate technology that would enable non-subscription content providers to isolate and exclude all access to all users in specified jurisdictions.
87. These special features of the Internet present peculiar difficulties for the legal regulation of its content and, specifically, for the exclusion of access in defined jurisdictions. Such difficulties may have a bearing on the question of whether a particular jurisdiction has an advantage in regulating content published and accessed on the Internet. This does not mean (and no party before the Court suggested) that the Internet is, or should be, a law-free zone. However, in considering what the law, and specifically the common law of Australia, should say in relation to the contents of the Internet, particularly with respect to allegedly defamatory material on a website, the appellant argued that regard had to be taken of these elementary practical features of the technology.
88. Novel features of the Web: The crucial attributes, so it was said, include the explosion in the availability of readily accessible information to hundreds of millions of people everywhere, with the consequent enhancement of human knowledge, and the beneficial contribution to human freedom and access to information about the world's peoples and their diverse lives and viewpoints that the Internet makes available, thereby contributing to human understanding. It was argued that the law should generally facilitate and encourage such advances, not attempt to restrict or impede them by inconsistent and ineffective, or only partly effective, interventions, for fear of interrupting the benefit that the Internet has already brought and the greater benefits that its continued expansion promises.
89. This Court has made reference to the fact that modern development in mass communications and particularly the electronic media may influence the continued relevance or reformulation of established legal principles. The appellant contested the respondent's suPosted by stern130 at February 12, 2005 11:23 AM