Jurisdiction and the Internet after Gutnick and Yahoo!
Lawyer, Australian Securities & Investments Commission
This author dedicates this paper to his Mum and eternal inspiration, Nelly Saadat. He would also like to extend his deepest thanks to Hooma, Melissa, Dad, Marilyn, Charbel, Annesley, Rose, Nana, Greg and many others.
This paper considers jurisdictional issues associated with the Internet, with a focus on defamation as it arises on the Internet. The leading Australian case of Gutnick provides a key basis for analysis, and reveals that the traditional rules of jurisdiction can, and do, provide a sound basis for Internet regulation.
Keywords: Internet, defamation, hate speech, Barrick Gold Corporation v Lopehandia, Zippo Manufacturing Company v Zippo Dot Com, Inc., Dow Jones v Gutnick, Godfrey v Demon Internet Limited, Calder v Jones, Chadha & Osicom Technologies v Dow Jones & Co, Inc., Berezovsky v Michaels.
This is a refereed article published on: 22 August 2005.
Citation: Saadat, ‘Jurisdiction and the Internet after Gutnick and Yahoo!’, 2005 (1) The Journal of Information, Law and Technology (JILT). <http://www2.warwick.ac.uk/fac/soc/law2/elj/jilt/2005_1/saadat/>.
The definition of the Internet is a largely uncontroversial matter. In technical terms, the Internet is essentially “a decentralised, self-maintained telecommunications network.”1 There is, however, nothing ordinary about the benefits associated with such a telecommunications network. The Internet provides its users with a previously unprecedented ability to communicate. E-mail provides virtually instantaneous global messaging, and information published on the world-wide-web (a subset of the Internet) is viewable and usable2 upon creation, by any person with a connection to the Internet.3 In becoming a medium used by hundreds of millions of people4, the Internet has become an essential tool for commerce.5The United States (“U.S.”) Supreme Court provided its impressions of the Internet in 1997, labelling the Internet “a unique medium – known to its users as ‘cyberspace’ – located in no particular geographical location but available to anyone, anywhere in the world.”6 This description provides but a glimpse of the jurisdictional problems that have arisen as a result of the emergence of such a “revolutionary”7 medium.
1.1 Scope of Paper
This paper is divided into two major sections: sections two and three. Section two analyses why the Internet raises jurisdictional problems – or, alternatively, – why the rules of jurisdiction, if applied traditionally, may be said to pose a threat to Internet conduct. ‘Conduct’ can denote many types of legal actions, both civil and criminal. The limitations of this paper necessitate, however, that only certain categories of legal disputes are examined. Specifically, there will be a focus on the jurisdictional problems associated with the conflict of ‘speech’ laws across jurisdictions, and in particular, the problems associated with defamation8 on the Internet. There will be a broad discussion of how the rules of jurisdiction (essentially, laws with respect to choice of forum and choice of law) operate in the U.S., the European Union (“EU”) and major Commonwealth countries.9 The assertion that the existing rules of jurisdiction may cause a ‘chilling effect’ over the Internet will be considered.Section three of this paper will critically evaluate examples of how jurisdictions have sought to regulate Internet conduct. In the case of Internet defamation, the Australian case of Gutnick will provide a key basis for analysis. Throughout this section, the practical effects of these cases will be considered and used as a basis for evaluating the traditional rules of jurisdiction.
At the outset, it must be acknowledged that although jurisdictional issues are at the heart of Internet regulation, the “Internet covers a broad range of regulatory concerns.”10 This paper is specifically concerned with jurisdiction as it relates to certain Internet conduct – that is, defamation and speech on the Internet. Other regulatory concerns, such as the “communication protocols that define the Internet,”11 while critical to the Internet’s operation, are outside the scope of this paper.
1.2.1 Is the Internet Different From Other Media?
The Internet provides its users with a new way of communicating and interacting. At first, however, it is important to determine whether the Internet allows people to do ‘new things’ or whether it largely allows people to do existing things in new ways, albeit in greater volumes. This is a necessary distinction to be drawn, as the answer directly impacts upon the manner in which the Internet should be regulated.Jack Goldsmith, in an influential12 article,13 argues that: [c]yberspace transactions are no different from “real-space” transnational transactions. They involve people in real space in one jurisdiction communicating with people in real space in other jurisdictions in a way that often does good but sometimes causes harm.14Goldsmith’s position is in direct opposition to many Internet legal scholars who argue that the Internet is “exceptional”15 and that:
Post’s exceptionalist position becomes more unconvincing when further examples that include the question of jurisdiction are cited. In other words, it is not difficult to find examples of offline transactions that are functionally equivalent to their online counterparts. Media companies, in the pre-Internet era, distributed (and continue to distribute) their publications in multiple jurisdictions, although the costs associated with this may be relatively high.33 Likewise, mail-order companies continue to provide consumers with a method of ordering goods from overseas retailers, without the need for an Internet presence. As Post points out, in economic terms, the marginal cost of servicing multiple jurisdictions, ceteris paribus, is significantly lower for companies operating on the Internet.34 Newspaper readers are no longer forced to purchase overseas periodicals at inflated prices and delayed timeframes.35 For shoppers, the opportunity to order products over the Internet, with real-time product and inventory information, is more enticing than relying on outdated mail order catalogues.36 Consequently, the quantity of newspapers able to be read internationally, and the number of international consumer transactions that can occur, is significantly greater on the Internet. Concluding that the Internet facilitates scale is not, however, the same as concluding that transactions that occur on the Internet undergo a transformation from their real-space counterparts, and by extension, require separate regulation.Furthermore, and with respect, Post’s suggestion that “border crossing events and transactions”37 were “previously at the margins of the legal system and of sufficient rarity to be cabined off into a small corner of the legal universe”38 is not necessarily correct. Firstly, border crossing events and transactions have existed in significant volumes long before the Internet, and even if confined to “airplane crashes, mass torts, multistate insurance coverage, or multinational commercial transactions”39 amount to a significant body of jurisprudence. Multi-jurisdiction commercial transactions alone, going back to International Shoe Co. v Washington,40 have been responsible for considerable case law. Notwithstanding, asserting that the Internet means “virtually all events and transactions have border-crossing effects”41 obscures the reality that while the Internet creates the potential for limitless “border crossing effects”,42 in the overwhelming majority of instances, no legal “border crossing effects”43 ensue.
The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through well established distribution mechanisms Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be … a video recorder … or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude.32 [emphasis added]
1.2.2 An Alternative View?
For Goldsmith and Post, the solution to jurisdiction on the Internet turns on whether the Internet is “no different”44 or “indeed different”45 to real space. Goldsmith claims that the Internet is not deserving of distinct jurisdictional rules. Having decided that the Internet is different, Post proposes that “decentralized self-governing institutions”46 should regulate the Internet. David Menthe, however, appears to offer a third-way.47 Menthe argues that the Internet should be regulated in the same way as the other established “international spaces,”48 namely Antarctica, outer-space and the high-seas. Accordingly, jurisdiction should be determined according to the nationality of the parties. In making his claim, Menthe specifically rules out the traditional rules as a basis for determining jurisdiction on the Internet:
“Scholars who study conflicts of law are used to regulatory conflict.”55
Having concluded that there is no prima facie theoretical (or in-principle) basis for separate rules of jurisdiction for Internet conduct, the traditional rules of jurisdiction will be considered. These rules will then be examined with respect to (non-Internet) international business disputes. Media companies, for example, that sell their publications in foreign jurisdictions will be shown to be subject to the defamation laws of those jurisdictions. Although defamation is relatively less likely to be a problem in foreign jurisdictions (on the mere basis that circulation of a newspaper will be much higher in the domestic jurisdiction), media companies are nonetheless exposed to lawsuits in countries where they choose to sell their publications.The problem of conflict of laws and jurisdiction pre-dates the Internet. The following discussion will broadly56 examine the traditional rules of jurisdiction and assess their operation and effectiveness. Even if the Internet is considered to be “unexceptional”, there is no point in subjecting it to objectively bad rules. To provide a basis for later analogy, cases involving non-Internet based international business transactions with jurisdiction disputes will be considered.The rules of jurisdiction can be divided into the following categories:
- the jurisdiction to prescribe (or ‘legislative’ jurisdiction);
- the jurisdiction to adjudicate (or ‘judicial’ jurisdiction); and
- the jurisdiction to enforce (or ‘enforcement’ jurisdiction).
Although the 2000 English defamation case of Berezovsky v Michaels81 also involved the question of material published on the Internet,82 significantly, the defendant also circulated hard-copies of its publication in multiple jurisdictions. The defendant – Forbes, a business magazine written, edited and circulated largely in the US – published an article concerning two prominent Russian citizens. The magazine had a circulation of almost 800,000 copies in North America, just over 1,900 copies in England and 13 copies in Russia. The plaintiffs confined their claim for damages to publication of the magazine in England,83 unsurprising given England’s plaintiff-friendly defamation laws.84 The publisher sought to stay the action, arguing that England was not the appropriate forum. In a majority decision, the House of Lords denied the publisher’s application.In the leading opinion delivered by Lord Steyn, His Lordship held:
It is the year 2005, and thousands of the world’s newspapers are available for access on the Internet. The potential for multiple-jurisdiction defamation actions is rife. Indeed, as a corollary of spurring burgeoning international activity and commerce, the Internet has provided easier ways for people to be part of international legal disputes. Newspaper publishers with an Internet presence, in particular, are somewhat more likely to fall foul of foreign defamation and hate-speech laws (although this should not be exaggerated). On one hand, Post’s reasoning potentially amounts to the conclusion that the newspaper of Country A (“Herald Times”, for the sake of argument), published on the Internet, should be immune from the defamation laws of Country B. The basis for this: the fact that the Herald Times is now available (and accessible) on a very large scale. That is, potentially millions of people in Country B are able to download and view the Herald Times, whereas in the pre-Internet age, the newspaper was only available in smaller quantities in select newsstands in Country B.Yet it is not immediately clear why the Internet, in facilitating the increased availability of the Herald Times in Country B, and the associated increased potential for defamation, should be subject to different legal rules. As a matter of legal principle, the contention that “scale matters” has been determined to be unconvincing.If scale does not distinguish the Internet from real space it then must be asked whether other policy considerations are relevant. This is an entirely separate issue, and often particular fact situations will dictate the appropriate approach. These are now considered.
This section will begin by examining defamation on the Internet, with Gutnick as a focus for discussion. Whether Gutnick, having been decided in accordance with the traditional rules of jurisdiction, proves that such rules are adequate or inadequate for disputes arising on the Internet will be considered. This section will touch on the ongoing litigation in Yahoo!, a prominent case involving (among other things) the sale of Nazi memorabilia on the Internet. Yahoo! has only recently further unfolded, with a decision of the U.S. Court of Appeals for the 9th Circuit on 23 August 2004. Finally, this section will also examine other relevant cases, including the leading U.S. authority for minimum contacts on the Internet, as well as a recent Canadian decision on Internet defamation.
Prior to Gutnick, the first case to be heard on the issue of defamation on the Internet was Godfrey v Demon Internet Limited,94 an English case involving a domestic plaintiff and defendant. Although the alleged defamatory material (“the posting”) was uploaded to the Internet by a U.S. person,95 the plaintiff96 brought action against Demon Internet,97 the Internet Service Provider (“ISP”) hosting the posting on its servers. The plaintiff submitted that Demon Internet published the posting by hosting it, in accordance with s. 1 of the Defamation Act 1996.98 It was also submitted that Demon Internet’s failure to remove the posting, after having been advised of its existence by the plaintiff, prevented Demon Internet from availing themselves of the common law defamation defence of “innocent dissemination.”99Significantly, Justice Morland noted in his judgement that English law did not contain an equivalent of the U.S. statutory provision of “precluding courts from entertaining claims that would place a computer service provider in a publisher’s role.”100 Initially, Justice Morland held that Demon Internet “were clearly not the publisher of the posting defamatory of the Plaintiff within the meaning [of the Defamation Act]”. Despite this, because the plaintiff notified Demon Internet of the publication of the posting, they had an obligation to remove it, or else remain liable for defamation.This first English case of defamation on the Internet did not prove to be especially groundbreaking for two main reasons: (i) Godfrey was an English case where jurisdiction was not at issue, as both plaintiff and defendant were English; and (ii) ISPs that unknowingly host allegedly defamatory material are only potentially liable if they ignore a request to remove the relevant material. In the U.S., ISPs are not liable at all.101
Of all the cases involving jurisdiction on the Internet, the Gutnick case is considered to be one of the most important. In Gutnick, the High Court of Australia applied Australia’s traditional rules of jurisdiction to determine that Australian courts do have jurisdiction to adjudicate alleged defamation on the Internet. The case is considered especially important, as it was the first judgement of any nation’s final appellate court on the jurisdiction issue in an international defamation case involving Internet-based publication.The facts in Gutnick are as follows. 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 Internet. Those who pay an annual fee 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 their details. Access is at all times only available with a user name and a password. The information at wsj.com includes Barron’s Online in which the articles published in the current printed edition of Barron’s magazine are reproduced.102The edition of Barron’s Online for 28 October 2000 (and the equivalent edition of the magazine dated 30 October 2000) contained an article entitled “Unholy Gains” in which several references were made to Gutnick. It was in this article that Gutnick claimed that he was defamed. Gutnick brought an action in the Supreme Court of Victoria (Australia) against Dow Jones claiming damages for defamation.103Gutnick lives in the Australian state of Victoria and has his business headquarters there. Although Gutnick conducts business outside Australia, including in the U.S., 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.104The wsj.com site had about 550,000 subscribers in October 2000. Not all of these subscribers could be identified, but approximately 1700 paid subscribers were known to have Australian addresses, of which about 300 were in Victoria. Dow Jones has an office in the U.S. state of New Jersey, where servers hosting its wsj.com website are located.105In bringing an action against Dow Jones, Gutnick confined his claim in respect of publication of the article that occurred in Victoria. In proceedings before the Supreme Court of Victoria, Dow Jones applied for an order that the plaintiff’s service of writ and statement of claim be set aside, or an order that further proceedings in the matter be permanently stayed.106 Dow Jones contended that the Supreme Court of Victoria lacked jurisdiction in the matter, or alternatively, that the state of Victoria was a “clearly inappropriate forum.”107Justice Hedigan concluded that the allegedly defamatory article was “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.”108 Dow Jones’s contention that the publication of the article in Barron’s Online occurred at their servers in New Jersey was rejected. In concluding that Gutnick was defamed in Victoria, Dow Jones’s submission that Victoria was a clearly inappropriate forum was also rejected.109Dow Jones’s request for special leave to appeal to the Victorian Court of Appeal was rejected. The Court of Appeal was quick to conclude that Justice Hedigan’s decision was “plainly correct.”110Dow Jones’s request for special leave to appeal to the High Court was, however, accepted. As Australia’s final appellate court, the High Court’s decision to accept the appeal attracted a significant amount of international interest. The High Court granted111 numerous international media organisations112 leave to intervene in conjunction with Dow Jones.In a unanimous decision, the full court of the High Court affirmed the Victorian Supreme Court’s decision, and denied Dow Jones’s appeal. The appeal focussed on the critical question of where the article available on Barron’s Online was published. Although Australia’s traditional rules of defamation quite clearly pointed to publication having occurred in Victoria (in each and every instance that the article was downloaded by a subscriber residing in the state), Dow Jones, et al, urged the court to establish separate rules for Internet-based publications.Specifically, Dow Jones argued that the rule for Internet publication should be akin to the U.S. defamation “single publication rule”, and that an article should be deemed published when it is uploaded to a server (an approach labelled “the law of the server”113 by Menthe). The location of the server, it was suggested, should determine the applicable choice of law and jurisdiction.Dow Jones, et al, desperately sought to emphasise the special nature of the Internet, and argued that by virtue of being on the Internet, a publication should be subject to different rules. Senior Counsel on behalf of the interveners also attempted to advance the argument akin to that put forward by Post, namely that “the question of degree becomes a difference of kind.”114 In other words, Internet conduct is different because the scale of the Internet transforms otherwise analogous non-Internet conduct. It was further argued that unlike the situation of a newspaper being distributed (in hardcopy) abroad, “with the Internet you cannot know”115 where a website will be viewed.Justice Kirby, in contrast to the other seven justices of the court, accepted the submission by Dow Jones, et al, that the Internet is a unique medium. Justice Kirby held that: the Internet is not simply an extension of past communications technology. It is a new means of creating continuous relationships in a manner that could not previously have been contemplated…116
Despite this, Justice Kirby held that it was the responsibility of the legislature to reform the common law rules of defamation, and that there were limits to “judicial innovation.”117In a joint judgement, however, Chief Justice Gleeson, and Justices McHugh, Gummow and Hayne expressed less enthusiastic impressions of the Internet. In response to the suggestion that the Internet is different to any previous communications technology, the following was held:
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.118 [emphasis added]
particularly in cases where the plaintiff has a substantial reputation in more than one legal jurisdiction and seeks to recover for the damage in all such jurisdictions in a single proceeding. In such a case, potential liability in defamation for the publication of material relating to such a person on the Internet may indeed have a chilling effect on free speech merely because one of those jurisdictions has more restrictive defamation laws than the others. This approach could subject Australian defendants to the more restrictive defamation laws of foreign jurisdictions.120
This concern was, however, rejected by a majority of the court on a twofold basis. Firstly, with respect to the suggestion by Dow Jones that the single publication rule for Internet material be centred on the location of the server hosting the material. The court held that this would allow:
(a) the extent of defamation occurring within the forum state was significantly less than in the U.S., where the allegedly defamatory material was written and originally published;
(b) the plaintiff’s confined their claims to defamation occurring within the forum state only (presumably with the full knowledge that any defamation claim in the U.S. would be thwarted by New York Times Co v Sullivan)129
(c) the argument of forum non-conveniens was rejected because no choice of law question arose130; and
- (d) the applicable defamation and jurisdiction laws were largely similar.
The decision in Dow Jones v Gutnick attracted significant international media attention. A lengthy Washington Post article published on 11 December 2002 included predictions that the Internet could be rendered “unusable as a vehicle for mass communication”131 and that the decision “could crimp the increasingly free flow of information across borders that the Internet has unleashed.”132 These were, effectively, predictions of a ‘chilling effect’.The Australian newspaper went further, suggesting in an editorial that the High Court judges “remain entrapped by the arcane art of the common law and the inglorious history of defamation law as a tool of the powerful.”133 In contrast to other criticism, however, The Australian believed the decision to be more than bad policy – the decision was also bad law. It was, according to The Australian, incumbent upon the High Court to revise the common law to “properly comprehend the new world of the Internet.”134As mentioned above, of the seven justices only Justice Kirby seems to have recognised a need for reform of the law to grapple with the unique challenges posed by the Internet. Justice Kirby held that “the appellant (and interveners) have established real defects in the current Australian law of defamation as it applies to publications on the Internet”135 and that
The remaining six justices echoed Justice Kirby’s reassurances that their decision would not necessarily have significant impact on the Internet. It is submitted that the High Court’s claims are highly persuasive. Additionally, the criticisms levelled at the High Court’s decision do not survive rigorous analysis.From the perspective of the Australian common law, the decision reached by the High Court is, in the words of the Victorian Court of Appeal, “plainly correct.”140 The single-publication rule is not part of Australia’s common law on defamation, and while publication that occurs on a mass scale theoretically results in scores of individual causes of action, established principles of the common law prevent multiple law suits.141 It is well-established in Australian jurisprudence that the tort of defamation arises when a “defamatory publication is comprehended by the reader, the listener, or the observer.”142 Furthermore, 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.”143Dow Jones, et al, understood these aspects of Australia’s defamation law, but urged the High Court to embrace its suggested approach (encompassing the server rule, discussed above). The fact that the High Court declined to (i) radically reshape Australia’s common law rules on defamation for Internet publications; and (ii) do so in the manner proposed by the appellants and interveners is laudable. Although ultimate appellate courts are obliged to adapt the common law to new fact situations (a responsibility recognised by the High Court),144 this responsibility must always be exercised with extreme care.Most ultimate appellate courts in developed countries do not have directly elected judges – the highest courts of Australia, the U.S. and UK all appoint the judges of their highest courts according to established processes. Reform of the law is principally, and rightfully, the responsibility of democratically elected legislatures.Even if the case for common law reform by the High Court could be established, reform in the manner proposed by Dow Jones, et al, would be highly undesirable. The server rule, if adopted, would create tremendous uncertainty and would require a new body of jurisprudence to develop some semblance of predictability. Interpretation of the words “adventitious” or “opportunistic” would undoubtedly vary between jurisdictions, in much the same way that England and Australia approach the test of forum non-conveniens differently.145What, then, are the implications for the Internet after Gutnick? Matthew Collins, having written widely on defamation on the Internet,146 considers the case to have “the potential to chill freedom of speech”.147 Collins argues that “foreign publishers may decide to water down or not publish material which has the potential to damage the reputations of Australians … or try to restrict Australians from having access to their site.”148 Evidence of this may already exist. Many newspaper websites (including the New York Times, Guardian and Sydney Morning Herald) now require compulsory (and usually free) registration. This allows the websites to identify their readers – particularly their physical location.Like the High Court, however, Collins maintains that the “implications of the High Court’s decision should not be exaggerated or overstated.”149 There is, indeed, no basis for the predicting the demise of the Internet. For a simple free registration, a ubiquitous publication such as the New York Times remains accessible150 worldwide (even to Australians!) in this ‘post-Gutnick era’.It must be remembered that Dow Jones was found liable partly because it actively solicited subscribers for its wsj.com website from around the world. In many cases subscribers made credit card payments for access to wsj.com’s content, and Dow Jones could readily ascertain the quantity and location of its subscribers. A subscription-only website such as wsj.com can be described as an “active” website in the language of Zippo Manufacturing Company v Zippo Dot Com, Inc151 (discussed below). In future, Dow Jones may shield itself from liability by ensuring that certain articles are not available to subscribers from particular jurisdictions. The very same technology that allows Dow Jones to widely disseminate its publications will also allow152 it to, in what will be the vast minority of cases, block certain articles from being ‘published’ in specific jurisdictions. While this does not amount to a utopian level of accessibility for information on the Internet, it is infinitely preferable to a situation where Dow Jones’s publications are not available on the Internet (and consumers do not have instantaneous access to the bulk of overseas publications).
In Zippo, the Pennsylvania District Court adapted the minimum contacts test for specific personal jurisdiction in Internet cases. A “sliding scale” test was developed for determining whether a defendant’s conduct over the Internet allows a (U.S.) state to exercise personal jurisdiction over him. The court held that:
Canada’s Ontario Court of Appeal handed down a decision on 4 June 2004 in the case of Barrick Gold Corporation v Lopehandia.156 Although this case concerned two Canadian residents, the plaintiff resided in the province of Ontario, while the defendant resided the province of British Columbia. Jurisdiction was, therefore, relevant, particularly in relation to the request for injunction. In the decision of first instance, Justice Swinton held that the defendant had extensively and maliciously defamed the plaintiff; however, she refused to award punitive damages, and crucially, denied a request for an injunction against the defendant (to prevent him from continuing to post defamatory messages on the Internet). With respect to the request for injunctive relief, Justice Swinton held that as the defendant did not have assets in Ontario, the courts of Ontario could not supervise the enforcement of the injunction against the defendant in British Columbia.On appeal, the Court of Appeal granted C$50,000 punitive damages, finding the defendant’s conduct to be “malicious and high handed … unremitting and tenacious”157 involving “defamatory publications that are vicious, spiteful, wide-ranging in substance, and world-wide in scope.”158 On the jurisdictional issue of injunctive relief, the Court of Appeal granted the plaintiff’s request, holding that
(e)"there was a real and substantial connection between the matter and Ontario (the defamatory statements caused damage to Barrick's reputation in Ontario, were read by residents of Ontario, and were accessible on an Internet message board operated by an Ontario ISP);
(f) Ontario ISPs (such as Yahoo! Canada) could be stopped from distributing the plaintiff’s defamatory messages; and
(g)the order “may be enforceable in British Columbia.”159
Having examined defamation on the Internet, with a particular focus on the important case of Gutnick? the discussion will now turn to the regulation of hate speech on the Internet. The problem of hate speech on the Internet arises because of the varying degrees to which freedom of expression is allowed in different jurisdictions. Yahoo!161 is considered the most important case on this issue; however, other cases involving multinational Internet companies (involving, for instance, Amazon.com, Inc)162 have the potential to arise.In contrast to Gutnick, Yahoo! has been considered, by free speech advocates, to be a victory for the Internet. In reality, it is a victory for those who support the traditional rules of jurisdiction, and those who seek protection under the U.S. Constitution’s First Amendment.163 As previously mentioned, the small body of jurisprudence with respect to Internet conduct has allowed the Internet to flourish as an extremely popular, and effective, method of mass communication. Unencumbered by the laws of any one jurisdiction, ‘netizens’ (that is, Internet citizens) have enjoyed immense freedom to discuss political, social and economic issues.Regimes that are reluctant to allow their residents to tap into such a medium continue to control access from within their territories. This reflects the practical limits associated with attempts to impose extra-territorial jurisdiction. The government of the People’s Republic of China, for example, highly regulates Internet access from inside China. An Amnesty International report in November 2002 showed that:
On one side of the debate it is claimed that:
1 Dow Jones & Company, Inc v Gutnick  HCA 56, para 80. The proceedings in the High Court of Australia will hereafter be called “Dow Jones v Gutnick”. General reference to the proceedings (including the decision of first instance, the Court of Appeal decision, and the High Court’s decision) will hereafter be “Gutnick”. The full citation for the decision of first instance will be provided where relevant.
2 ‘Usable’ means the Internet has the ability to interact with its users. Interaction is an important concept in relation to jurisdiction. See, in particular, section 3(e) below.
3 The Internet does not require proprietary software for access. Any software platform (including Windows, Macintosh and UNIX) that can ‘understand’ Internet protocols can establish a connection to the Internet.
4 United Nations Conference on Trade and Development, E-Commerce and Development Report, 2002: Executive Summary (2002) 1.
6 Reno v ACLU, 117 S.Ct. 2329, 2334-35 (1997).
7 “It is indeed a revolutionary leap in the distribution of information … It is a medium that overwhelmingly benefits humanity, advancing as it does the human right of access to information and to free expression.” Dow Jones v Gutnick, para 164.
8 The tort of defamation can be further broken down into ‘libel’ and ‘slander’, depending on the common law jurisdiction. This paper will not consider this distinction (see Collins, below n146, 41). ‘Defamation’, as referred to throughout this paper, should be given its ordinary meaning.
9 Principally Canada, Australia and New Zealand.
10 J Goldsmith, “Unilateral Regulation of the Internet: A Modest Defence”, 11 EJIL (2000) 135, at 147.
11 Ibid, 148.
12 D Post, “Against ‘Against Cyberanarchy’”, 17 Berkley Technology Law Journal (2002) 1371. See, in particular, note 41.
13 J Goldsmith, “Against Cyberanarchy”, 65 Chicago Law Review (1998) 1239.
14 Ibid, 1239-1240.
15 Post, above n12, 1390.
17 Post, above n12, 1366.
18 Goldsmith, above n13, 1240.
19 D Post & D Johnson, “Law and Borders: The Rise of Law in Cyberspace”, 48 Stanford Law Review 1367. This article’s central theme is that the irrelevance of physical location on the Internet supports the argument for decentralized self-governing institutions.
20 Goldsmith, above n10.
21 Post, above n12.
22 Goldsmith, above n13, 1239-1240.
23 Post, above n12, 1369.
24 Ibid, 1340.
25 907 F.Supp 1361 (N.D.Cal. 1995).
26 That is, the absurdity of an Internet Service Provider being guilty of copyright infringement for unknowingly transmitting copyrighted material. Ultimately, Judge Whyte held that Netcomm “cannot be held liable for direct infringement” (above n13, 1373).
27 Sony Corporation of America, Inc., et al. v Universal City Studios, Inc, et al. 464 U.S. 417 (1984) (hereafter “Betamax”).
31 CV-01-8541 (hereafter “Grokster”).
32 Ibid, 11746.
33 The New York Times, for instance, is available for sale in many of the world’s largest cities.
34 Post, above n12, 1375.
35 The Sydney Morning Herald will only be available on London newsstands after a 23 hour flight from Sydney.
36 The Internet’s ability to allow commerce to be conducted with minimal infrastructure costs spawned the explosive growth of thousands of Internet companies from 1996 – 2002. While a significant majority of the first pure-Internet companies have since closed, this is more a reflection of consumers’ early unwillingness to purchase certain products on the Internet, rather than the Internet business model per se. For example, the high-profile collapse of boo.com, an Internet clothing retailer, showed the difficulties associated with selling fashion on-line. Amazon.com, in contrast, the world’s leading Internet retailer, is making profits, largely as a result of selling books, CDs and DVDs (source: Amazon.com SEC 10-K filing, 25/02/2004).
37 Post, above n12, 1386.
40 326 U.S. 310 (1945) (hereafter “International Shoe”).
41 Post, above n12, 1386. Emphasis not added.
44 Goldsmith, above n13, 1239.
45 Post, above n12.
47 D Menthe, “Jurisdiction in Cyberspace: A Theory of International Spaces”, 4 Mich. Telecomm. Tech. L. Rev 69 (1998).
49 Ibid, 71. Emphasis not added.
50 A rigorous evaluation of the practical benefits of Menthe’s proposed approach is, however, beyond the scope of this paper.
51 Goldsmith, above n13, 1239.
52 Goldsmith, above n13, 1239
.53 Goldsmith, above n10, 136.
54 Ibid, 135.
55 Ibid, 148.
56 The constraints of this paper prevent a fuller discussion of private international law. See L Collins, “Dicey and Morris on the Conflict of Laws” (13th ed, London: Sweet & Maxwell, 2000).
57 Menthe, above n47.
58 Restatement (Third) of Foreign Relations Law of the United States, s401 (1987).
59 Laurie v Carroll (1958) 98 CLR 310.
60 This may only be done in accordance with the court’s own rules for service of a writ outside jurisdiction.
61 For example, Switzerland does not permit a writ to be served by international post, considering it a breach of its sovereignty (see http://foia.state.gov/masterdocs/07fam/07m0950.pdf).
62 Matusevitch v Telnikoff, 877 F Supp 1 (DDC, 1995); Bachchan v India Abroad Publications Inc, 585 NYS 2d 661 (NY County SC, 1992).
63 Rule 6.20, Civil Procedure Rules.
64 U.S. states have passed ‘long-arm’ statutes in order to facilitate the issue of writs for persons located in other states (both U.S. and overseas). The U.S. Supreme Court sanctioned these statues in International Shoe, in accordance with the U.S. Constitution (1787), Amendment XIV (1868), section 1 (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”). The “minimum contacts” rule provides that jurisdiction over a person shall only exist if the person has a minimum level of contacts with the state. This requires a careful examination of the facts and circumstances of each case.
65 Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (hereafter, “Brussels Regulation” or “the Regulation”).
66 Denmark, an EU member state, opted out of the Brussels Regulation and applies the rules of the Lugano Convention (16 September 1988) on jurisdiction and the enforcement of judgements. Iceland, Norway and Switzerland (non-EU member states) also apply the Lugano Convention. The Lugano Convention is substantially similar to the Brussels Regulation.
67 Para 11, Brussels Regulation.
68 Article 2(1), Brussels Regulation.
69 Article 4(1), Brussels Regulation (“If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 22 and 23, be determined by the law of that Member State”).
70 Most civil law countries do not accept the principle of forum non-conveniens.
71 Spiliada Maritime Corporation v Cansulex Ltd.  AC 46, Piper Aircraft v Reyno, 454 U.S. 235.
72 Voth v Manildra Flour Mills Pty Ltd (1990) 97 CLR 124.
73 Lewis Construction Co Pty Ltd v Tichauer (M) Societe Anonyme  VR 341; Huddart Parker Ltd v Ship “The Mill” and Her Cargo (195) 81 CLR 502.
74 See below n94.
75 Emanuel v Symon  1 KB 302 (CA).
76 United States of America v Inkley  3 W.L.R. 304 (Ct. App.)
77 Article 5 of the Brussels Regulation.
78  1 Lloyds Rep. 413.
79 Ibid 417.
80 Article 5(5) Brussels Regulation.
81  2 All ER 986.
82 Lord Steyn declined to discuss specific issues arising out of the publication of the offending magazine via the Internet, suggesting that there had been insufficient evidence before the court to enable the issue to be considered adequately.
83 Including distribution of hard copies of the magazine, and publication of the offending material in England and Wales via the Internet.
84 R Weaver & G Bennett, Is the New York Times ‘Actual Malice’ Standard Really Necessary? A Comparative Perspective, 53 La. L. Rev. 1153.
85 Ibid, 994.
86 Ibid, 1005.
87  EMLR 724 (hereafter, “Chadha”)
9  EWHC 168 (QB).
90 465 U.S. 783.
94  EWHC QB 244 (hereafter “Godfrey”).
95 This person could not be identified.
96 A natural person resident in England
97 A company carrying on business in England and Wales.
98 Hereafter “Defamation Act”.
99 Godfrey, above n94, para 2.
100 Ibid, para 44. Justice Morland cites the U.S. case of Zeran v America Online  129 F3d 327. For this reason, and because of operation of the First Amendment of the U.S. Constitution, cases analogous to Godfrey can not readily be found in the U.S.
101 Religious Technology Center v. Netcom On-Line Communication Services, Inc. 923 F. Supp. 1231 (N.D. Cal. 1995).
102 Dow Jones v Gutnick, above n1, para 1.
103 Ibid, para 2.
105 Ibid, para 169.
106 Ibid, para 5.
107 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (that is, the argument of forum non-conveniens).
108 Gutnick v Dow Jones & Co, Inc  VSC 305, para 60 (hereafter “Gutnick v Dow Jones”)
.109 Dow Jones v Gutnick, above n1, para 7.
110 Dow Jones & Company, Inc v Gutnick  VSCA 249.
111 Dow Jones & Company, Inc v Gutnick M3/2002 (hereafter “Dow Jones v Gutnick transcript”).
112 These organisations were not confined to the U.S. Interveners were: Amazon.com, Inc, Associated Press, Association of Alternative Newsweeklies, BloombergLP, Cable News Network LP, LLLP, Guardian Newspapers Ltd, Knight Ridder, Inc, Media/Professional Insurance, The New York Times Company, News Limited, Online News Association, Reuters Group PLC, Time Inc, Tribune Company, The Washington Post Company, Yahoo! Inc, Internet Industry Association, and John Fairfax Holdings Ltd.
113 Menthe, above n47, 79. In arguing for the Internet to be regulated as an “international space”, Menthe shows why the “law of the server” would be undesirable.
114 Dow Jones v Gutnick transcript, above n111, line 1636.
116 Dow Jones v Gutnick, above n1, para 118.
117 Ibid, para 123.
118 Ibid, para 39.
119 Dow Jones v Gutnick, above n1, para 152.
120 Ibid, para 152.
121 Ibid, para 199.
122 Ibid, para 20.
124 Ibid, para 21.
125 Ibid, para 131.
126 In the words of the joint judgement: “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.” Ibid, para 54.
127 Ibid, para 53. As of 29 August 2004, Gutnick’s case had yet to reach a hearing on its merits.
128 Ibid, para 201.
131 J Krim, “Internet Libel Fence Falls; Court in Australia Says U.S. Publisher Can Be Sued There”, Washington Post, 11 December 2002, A10.
133 Editorial, The Australian, 11 December 2002.
135 Dow Jones v Gutnick, above n1, para 137.
136 Ibid, para 165.
137 Ibid, para 123.
138 Ibid, para 133.
140 Dow Jones & Company, Inc v Gutnick  VSCA 249.
141 In the words of the joint judgement: “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.” Dow Jones v Gutnick, above n1, para 36.
142 Ibid, para 26.
144 Per Justice Kirby, “it is appropriate to recall that in a parliamentary democracy such as that established by the Australian Constitution, [there is a need] for caution in judicial alteration of basic and long held legal rules.” Ibid, para 128.
145 During the proceedings in Dow Jones v Gutnick, Justice Gaudron remarked that “I should have thought, that notwithstanding the apparent difference of wording in relation to forum non conveniens, the probabilities are that throughout the common law [world] the results are pretty much on a par.” In response, Justice Kirby said “I am not sure about that.” Dow Jones v Gutnick transcript, above n111, lines 4320-25.
146 M Collins, The Law of Defamation and the Internet (New York: Oxford University Press, 2001).
147 M Collins, “Defamation on the Internet After Dow Jones & Company Inc v Gutnick”, (2003) 8 Media & Arts Law Review 3, 181.
149 Ibid, 182.
150 Indeed, the New York Times continues to offer readers (anywhere in the world) the opportunity, for a fee, to download an electronic edition of the daily newspaper. For details, see http://www.nytimes.com/ee.
151 952 F Supp 1119 (WD Pa, 1997) (hereafter “Zippo”).
152 Although it is conceded that an Internet user may disguise their physical location by adopting certain measures (for example, dialling into a foreign ISP), such conduct is highly exceptional. Moreover, certain Internet services are highly regulated in order to be available only to consumers of specific jurisdictions. For example, the iTunes Music Service (“ITMS”, a music download service provided by Apple, Inc.) was previously only available to residents of the U.S. Internet users attempting to use the ITMS would be refused access, unless they could prove U.S. residency (by providing details of a U.S. bank account and address). The ITMS is now available in 19 countries.
153 Ibid, 1124.
154 Ibid, 1126-7.
155 Memorandum of Minnesota Attorney General (July 18, 1995).
156  O.J. No. 2329.
157 Ibid, para 64.
159 Ibid, para 76.
160 B Freedman, “Ontario Court Issues Injunction Against Internet Defamation” CLE Society of British Columbia (available at http://www.cle.bc.ca/CLE/Analysis/Collection/04-12345-barrick).
161 The proceedings involving Yahoo! Inc (collectively hereafter “Yahoo!”) include the litigation in France (UEJF and LICRA v Yahoo! Inc. and Yahoo France (hereafter “LICRA v Yahoo!”) (an English translation of the decision can be found at http://www.juriscom.net/txt/jurisfr/cti/yauctions20000522.htm), as well the subsequent litigation in the U.S. (Yahoo!, Inc v La Ligue Contre Le Racisme et l’Antisemitisme, et al, 169 F Supp 2d 1181, 6 (hereafter, “Yahoo! v LICRA”).
162 See http://www.tau.ac.il/Anti-Semitism/updates/i99020.html.
163 United States Constitution (1787), Amendment 1 (1791).
164 Amnesty International, “People’s Republic of China State Control of the Internet in China”, AI Index: ASA 17/007/2002, 1 (available at http://web.amnesty.org/library/).
165 Such as Australia and New Zealand.
166 Yahoo! v LICRA, above n161.
167 Matusevitch v Telnikoff, 877 F Supp 1 (DDC, 1995) and Bachchan v India Abroad Publications Inc, 585 NYS 2d 661 (NY County SC, 1992) – both being British libel judgement not enforced in the U.S.
168 Ibid, 8.
169 T Gray, “Minimum Contacts in Cyberspace: The Classic Jurisdiction Analysis in a New Setting”, 1 Journal of High Technology Law 1, 85-86.
170 American Bar Association, Achieving Legal and Business Order in Cyberspace, 29-30 (2000), cited by Gray (above n168).
171 P Waldmeir, “Borders return to the Internet”, Financial Times 15 December 2002.
172 Goldsmith, above n10, 148.