This is the first editorial I’ve seen so
far about the libel suit from Down Under re: global jurisdiction.
Arguments here are well written and not
surprising. It seems that relying
on phrases such as “To an American” are going to be either unfortunate code
words or deep wells of illusion as we continue the path of global commerce,
exchange of ideas and information via the Web.
It will be interesting to read what
international editorials say.
What has been said elsewhere?
What do you think so far?
Karen
Washington
Post Editorial: Libel Down Under
Monday,
December 16, 2002
LET'S
SAY you live in Australia and believe you've been libeled by an American
newspaper - but an American newspaper easily accessible on the Internet in
Australia. Where do you sue?
That's the question that the High Court of Australia considered last week. It
came up with the wrong answer in the view of many free-speech advocates and in
our view as well. But we don't
pretend the question is easy. The
penetration of the Internet has cast many old questions of national
sovereignty vs. freedom of speech in a new light, and nations are just
beginning to figure out how to respond.
The
Australian court allowed a libel suit to go forward in Australia against Dow
Jones & Co. concerning an article published in Barron's magazine and
placed on the Wall Street Journal's Web site. Like
other Commonwealth countries, Australia has far harsher libel laws than does
the United States,
where the First Amendment sets a high burden of proof. The Post - along with other media
organizations - filed a brief supporting Dow Jones's case. If Australian courts can hear a case
involving American speech merely because an Australian could read the article
on the Internet in Australia, much domestic speech suddenly becomes hostage to
norms in Australia and other countries.
Australia and England make libel suits easy; in the Netherlands,
offending the royal family is illegal, and several countries prosecute
Holocaust denial. In the
nondemocratic world, writing the truth is often considered a crime.
To
avoid liability,
newspapers and others with assets or personnel abroad would either have to
block access to their content in many countries or would have to censor
themselves. Both options are
repugnant to anyone whose business is disseminating information and
ideas. Fixing this problem won't
be easy. Americans rightly resist
the idea that other countries might serve as safe harbors from which the
Internet could be used to subvert American domestic law. The government does not regard
Internet gambling aimed at Americans as beyond the reach of prosecutors just
because the Web sites might be housed on servers in Caribbean islands. But if a gambling Web site accessible
here is subject to American law, why shouldn't Australia be able to apply its
libel laws to a site accessible in Australia?
To
an American,
the answer to this question is simple: Speech is different from crime or other
punishable behavior. The rule
ought to be that libel suits for Web-based material proceed under the laws of
the country in which the offending statements were written and where they were
placed on the Internet. That's
the course indicated by an opinion Friday by the U.S. Court of Appeals for the
4th Circuit in Richmond, which held that two Connecticut newspapers could not
be sued for libel in Virginia by a prison warden merely because their content
was accessible there. If the
newspapers "did not manifest an intent to aim their websites or the posted
articles at a Virginia audience," the proper venue is Connecticut, the judges
wrote.
The
same principle ought to apply internationally. In the long run, the principle would
serve all democratic countries by preventing their domestic speech from being
limited by the laws of less-open societies. Speech deserves better than a race to
the bottom.
http://www.washingtonpost.com/wp-dyn/articles/A59773-2002Dec15.html
Outgoing Mail Scanned by NAV
2002
