[Ecommerce] Gutnick defamation case

[love@cptech.org]

http://it.mycareer.com.au/breaking/2001/06/06/FFX2G9FZLNC.html


Gutnick court case hears publication a centuries old question
Wednesday 06 June, 2001 10:35 GMT+10:00
By MIKE HEDGE, AAP

A 19th century law suit involving a British nobleman, his servant and a
London newspaper was cited yesterday as a precedent in a landmark case
on Internet publishing. 

Prominent international lawyer Geoffrey Robertson, QC, told the court
the 1848 case involving the Duke of Brunswick carried important
implications in the shaping of laws concerning the Internet. 

It could also help determine whether a defamation trial brought by
Melbourne entrepreneur, sporting and religious identity Joseph Gutnick
against an American publisher is staged in Australia or the United
States. 

Robertson is defending the US-based business information organisation
Dow Jones and Co. against a claim that it defamed Gutnick in an article
in one of its publications and on the Internet.

The hearing before the Victorian Supreme Court is to determine in which
country the trial will be held. 

Gutnick is claiming that the article's appearance on the Internet
enabled it to be accessed by people in Victoria, thereby defaming him
where he is best known. 

As a result, he wants the case to be heard in Melbourne.

Dow Jones says that because the article entitled Unholy Gains was
written in America, by an American for American consumption the case
should be heard in the US. 

The article claimed Gutnick had been involved in various questionable
financial dealings. Gutnick denies the allegations. 

But Robertson claimed the location of any future defamation trial hinged
partly on establishing where the Internet version of the article had
been published and what constituted an act of publication. 

Citing the Duke of Brunswick's case, and another relating to the Duchess
of York, the celebrated host of the television series, Hypothetical,
maintained that publication on the Internet occurred at the point where
the material was uploaded onto a Web server. 

He described a "get message" sent from the user's computer to a website
as "the embodiment of the searcher" who was seeking information from the
site. 

The information sought by the "get message" was then downloaded at the
source and was therefore published at the same place. 

He said much the same thing had happened in 1848 when the Duke of
Brunswick sent his servant to a newspaper office for copy of a
publication which contained a libel against him. 

The court duly ruled that the act of publication occurred when the
servant took delivery of the paper. 

Yesterday's hearing also heard a sustained attack on media reporting of
the opening day of the proceedings. 

Gutnick's counsel, Jeffrey Sher, QC, said the detailing of claims made
in the Dow Jones article should not have been made in the press. 

He said the present hearing did not seek to establish the truth of the
article, merely where any subsequent defamation trial would be held. 

The trial before Justice John Hedigan continues today.