Where Are Articles Published?

Following on from yesterday’s piece on Adscam some further links to what appears to be the law on such matters. Essentially, where is something on the internet published? Where we the publishers are? Where our server is? Where the download occurs? Different jurisdictions will have different views on these matters but it seems clear how the Common Law jurisdictions regard it. Articles are published, and thus subject to the defamation laws, where they are read, not where they are written.

Start with Dow Jones v Gutnick, where the issue first arose concerning the internet. The nub of the case? Was an article in Barron’s subject to the law in New Jersey where it was loaded into the net or in Victoria where it was read, and where the plaintiff lived? The answer, Victoria.

Dow Jones specifically raised the point that this meant that anything published on the net was now subject to all the laws of all nations. Indeed responded the court, it is:

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. 

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Thus for a publisher in New Jersey, the law in Victoria is the relevant one, when writing about a person and events in Victoria.

Common Law jurisdictions typically look at what the others are doing in a certain area to see what they should do when confronted with the same circumstances. Thus with Canada in Bangoura v Washington Post. Same general idea, where was an online article published, in DC, where the server was and it was uploaded? Or in Ontario, where it was downloaded and read, and where the plaintiff lived and thus had a reputation that could be defamed? Answer, Ontario:

The key argument advanced by the Post is based on a case known as New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the court refused to enforce British libel judgments on the ground that British libel law is repugnant to the policies of the U.S.A. Our courts do not share the American view that British libel law, which is similar to our own, is any less civilized than the American law. See Hill v. Church of Scientology, [1995] 2. S.C.R. 1130 at 1187 - 88, Cory J. The Supreme Court of Victoria (Australia) does not share the American view either. The following passages from the responding party's factum properly summarizes the Victorian view point and puts the whole issue in a proper perspective:

    

(a)         The High Court of Australia has very recently rendered judgment in a very similar factual situation. In Dow Jones  &  Company Inc. v. Gutnick, [2002] H.C.A. 56 (10 December 2002), a corporation registered in the United States, published material on the Internet that was allegedly defamatory of Mr. Gutnick, who sued in the Supreme Court of Victoria to recover damages to vindicate his reputation. In a unanimous decision, the High Court of Australia held that the Australian courts had jurisdiction over the matter, and that Australian courts were the most convenient forum ...     

(b)         The publication of allegedly defamatory articles via the Internet that were accessed in Victoria was the factor that persuaded the Court that it had jurisdiction. In cases of multi-state defamation, it is the publication, not the composition of the libel, that is the actionable wrong. Defamation is to be located at the place where the damage to reputation occurs. Ibid., per Gleeson CJ., McHugh, Gummow and Hayne J.J. p. 8.

    

(c)         The court noted that 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." Ibid., per Gleeson CJ., McHugh, Gummov and Hayne J.J. p. 7.     

(d)         Similarly, in a concurring judgment Justice Callinan stated:

    

A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet for it to reach a small target. It is its ubiquity which is one of the main attractions to users of it ... Publishers are not obliged to publish on the Internet. If the potential reach is uncontrollable then the greater the need to exercise care in publication.     

Ibid., per Gleeson CJ., McHugh, Gummov and Hayne J.J. p. 26 - 27.

    

(e)         This does not mean that publishers will be faced with uncertainty and the possibility of being sued in any jurisdiction in the world for each publication. The Honourable Chief Justice Gleeson noted that:     

Those who would seek to order their affairs in a way that will minimize 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.

So, we seem to have a system in which what is posted will be subject to review by foreign courts when what is posted has broken the (defamation) laws of those countries. We also have that point that:

New York Times Co. v. Sullivan, 376 U.S. 254 (1964), where the court refused to enforce British libel judgments on the ground that British libel law is repugnant to the policies of the U.S.A.

so perhaps US based bloggers can say what they like about foreigners because US courts will not enforce certain foreign decisions.

Which brings us to the current matter at hand. Given the above, various bloggers have quite clearly broken Canadian law by making available material, to Canadians, in Canada, material that was under a publication ban. And to two further questions.

1) Will the Canadian courts try to do anything about this? Will they launch a case or cases?

2) Will the US courts, if there is a decision against a US citizen, refuse to enforce it as being repugnant to the policies of the USA? Or, if you prefer, we know that certain libel laws are repugnant, what about laws forbidding publication so as to ensure a fair trial?

No, I’m not a lawyer and have no legal training. I have no idea how this is going to play out in the real world, but I do think it is going to be very interesting. Just what laws are we subject to when we blog?

There are, as you might understand, a number of people who are unhappy with this situation, people like Reporters Without Frontiers. Note the date on that post, 11 March 2005. This whole area of law is still up in the air.