Washington International Law Journal


In December of 2002, the High Court of Australia issued its decision in Dow Jones & Co. v. Gutnick, holding that Dow Jones could be haled into court in Australia for the publication of defamatory material on the Internet. This decision was surprising because the material in question was published in the United States on Dow Jones's New Jersey web servers. This decision makes Australia the only country that allows an action against a foreign defendant based solely on an Internet download in that country. However, the structure of the Gutnick opinion may open the door for other countries to follow the High Court's example. The Gutnick decision raises concerns that the territorial borders of speech protection could break down in the Internet Age. Laws regarding the balance between free speech and the protection of reputation vary widely among nations. However, the Australian court ignored the implications that the breakdown of the borders between jurisdictions could have on this balance, and instead mechanically applied historical precedent to the Internet. This strict application to the Internet of precedent created for off-line publication may produce a chilling effect on Internet speech worldwide by reducing the level of speech protection on the Internet to the lowest common denominator. The Gutnick decision's narrow focus on precedent does not offer sufficient protection to international free speech, and the Australian Parliament should adopt a jurisdictional rule to protect Internet speakers that do not aim their speech at Australia.

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