Please help to summarize the main facts, issues, rule of laws, application and the conclusion of Case : Dow Jones & Co. Inc. v. Gutnick (2002). thanks.

41;. 74-: >- CHAPTER 4 ' THE MULTINATIONAL ENTERPRISE CASE 4-4 Dow Jones 8: Co. Inc. v. Gutnick High Court of Australia. December 2002. AUSTRALlA Melbourne V MAP 4.4 United States and Australia (2002) The October 28, 2000 edition of Barron's Online, published by Dow Jones, contained an article entitled \"Unholy Gains" in which several allegedly defamatory statements were made regarding Mr. Joe Gutnick, a resident of Melbourne, Australia. While only five copies of the print edition were sent from New Jersey (U.S.) for circulation in Australia, the internet version of Barron's had over half a million subscribers, with some 1700 online subscribers in Australia. The issue for the Court was whether the article was "published" in the United States in a way that did not provrde Australian courts with personal jurisdiction over Dow Jones. The trial and appellate courts had found that Australian courts had personal jurisdiction over Dow Jones, which appealed to the High Court of Australia. All seven High Court justices determined that Gutnick could bring suit in Victoria, the place where damage to his reputation occurred. Defamation did not occur at the time of publishing, but rather when some third party read the publication and thereby thought less of Gutnick. The respondent is a businessman. He is involved in philanthropic, Political, sporting and religious affairs. His business activities have extended beyond Australia. He lives in Victoria and has many friends and associates there. He is the chairman of a corporation. shares in which are traded in the United States. He has sought investment in that corporation from investors in the United States. it is unnecessary to set out the whole of the article. The first three paragraphs sketch some of the interests of the respondent. The fourth states that some of his business dealings with religious charities raise "uncomiortable questions." The author then uses some language that the media have appropriated from the law courts, implying that a balanced trial wrth equal opportunity to partitipate by all concerned has taken place: that a "Barron's investigation found that several charities traded heavily in stocks promoted by Gutnick" (emphasis added). The article associates the respondent with Mr. Nachum Goldberg who is apparently a convicted tax evader and another Person awaiting trial for stock manipulation in New York. . . . 187 211 l 212 CHAPTER4 0 THE MULTINATIONAL ENTERPRISE The respondent brought proceedings against the appellant in defamation in the Supreme Court of Victoria. After an amendment of his statement of claim he alleged publication both online and by hard copies sold in Australia. He pleaded that the article meant, and was under~ stood to mean that he: a. was a customer of Nachum Goldberg who had recently been imprisoned for tax evasion and money laundering; and / b. was Nachum Goldberg's biggest customer; and c. was masquerading as a reputable citizen when he was, in fact, a tax evader who had laun- dered large amounts of money through Nachum Goldberg; and d. had bought Nachum Goldberg's silence so as to conceal his identity as one of Goldberg's customers. On service of the writ and statement of claim in the United States, the appellant entered a conditional appearance and applied to have service of the writ and statement of claim set aside, or alternatively, to have the respondent's action permanently stayed. The appellant undertook, in the event of a stay of the Victorian action, to raise no limitations or jurisdictional objections there if the respondent were to sue in the United States. . . . The primary judge summarized the appellant's arguments: that publication was effected in New Jersey and not Victoria; that no act was committed in Victoria to ground sen/ice of Victorian proceedings out of Victoria without an order of the Court pursuant to 07 of the Rules of Court of that State; and, thirdly that Victoria was not a convenient forum for the trial of the respondent's action. *** In this Court, the appellant repeated the arguments rehearsed in the courts below. The Internet, which is no more than a means of communication by a set of interconnected comput- ers, was described, not very convincingly, as a communications system entirely difterent from preexisting technology. The nature and operation of the Internet and the World Wide Web were explained by two highly qualified experts, Mr Barry Hammond BSc, Internet consultant to lead- ing Australian companies, and Dr Roger Clarke, Visiting Fellow (formerly Reader in Information Systems) in the Computer Science Department, Australian National University. They described the Internet as a set of interconnexions among computers all over the world to facilitate an exchange of messages. Using their computers, people can communicate with one another, and gain access to information. They claimed that it was a unique telecommunications system defying analogy with pre-existing technology. The description, however, by the appellant of the server as passive is inaccurate. *'kic A publisher, particularly one carrying on the business of publishing, does not act to put matter on the Internet in order for it to reach a small target. it is its ubiquity, which is one of the main attractions to users of it. And any person who gains access to the internet does so by tak- ing an initiative to gain access to it in a manner analogous to the purchase or other acquisition of a newspaper, in order to read it. *** The most important event so far as defamation is concerned is the infliction of the damage, and that occurs at the place (or the places) where the defamation is comprehended. Statements made on the internet are neither more nor less "localized\" than statements made in any other media or by other processes. Newspapers have always been circulated in many places. The reach of radio and television is limited only by the capacity of the technology to transmit and hear or view them, which already, and for many years, has extended beyond any one country. 'X'k'k There is nothing unique about multinational business, and it is in that that this appellant chooses to be engaged. If people wish to do business in, or indeed travel to, or live in, or utilise the infrastructure of different countries, they can hardly expect to be absolved from compliance with the laws of those countries. The fact that publication might occur everywhere does not mean that it occurs nowhere. Multiple publication in different jurisdictions is certainly no novelty in a federation such as Australia. *** 188 CHAPTER 4 v THE MULTINATIONAL ENTERPRISE If a publisher publishes in a multiplicity of jurisdictions it should understand, and must accept, that it runs the risk of liability in those jurisdictions in which the publication is not lawful and it inflicts damage. on The appellant's submission that publication occurs, or should henceforth be held to occur relevantly at one place, the place where the matter is provided, or first published, cannot with- stand any reasonable test of certainty and fairneSs If it were accepted, publishers would be free to manipulate the uploading and location of data so as to insulate themselves from liability in Australia, or elsewhere: for example, by using a web server in a "defamation free jurisdiction" or, one in which the defamation laws are tilted decidedly towards defendants. Why would publishers, owing duties to their shareholders, to maximise profits, do otherwise? The place of "uploading\" to a web server may have little or no relationship with the place where the matter is investigated, compiled or edited. Here, the State where the matter was uploaded was differ- ent fr0m the State in which the article was edited. Matter may be stored on more than one web server, and with different web servers at different times. Different parts of a single web page may be stored on different web servers in different jurisdictions. Many publications in this country. whether by television. radio, newspaper or magazine, originate in New South Wales. The result of the adoption of a rule of a single point of publication as submitted by the appellant, is that C .nany publications in Victoria, South Australia, Tasmania, Western Australia and Queensland would be governed by the Defamation Act 1974 (NSW) which provides, in its present form, for a regime by no means commanding general acceptance throughout this country. Choice of law in defamation proceedings in this country raises a relatively simple question of identifying the place of publication as the place of comprehension: a readily ascertainable fact. I agree with the respondent's submission that what the appellant seeks to do, is to impose upon Australian residents for the purposes of this and many other cases, an American legal hegemony in relation to internet publications. The consequence, if the appellant's submission were to be accepted would be to confer upon one country, and one notably more benevolent to the commercial and other media than this one, an effective domain over the law of defamation. to the financial advantage of publishers in the United States, and the serious disadvantage of those unfortunate enough to be reputationally damaged outside the United States. A further consequence might be to place commercial publishers in this country at a disadvantage to com mercial publishers in the United States. . . _ The appeal should be dismissed with costs. Casepoint A US. company that publishes on the World Wide Web using a server in one state may well be held liable in Australian courts for a defamatory story about a resident of Australia.The Australian court is likely to find personal , jurisdiction even though the defendant is not physically present in Australia and has no ofces or agents in Aus tralia, as long as the defamatory story would forseeably cause damage to the reputation of a person in Australia. contract, trespass, nuisance, and other causes of action are not torts of negligence but are torts of intent. The plaintiff does not need to show that the defendant had a malicious state of mind; couns flill infer intent from the defendant's acts. In Case 4-4, Dow Jones dc Co. Inc v. Gumr'ck, the alleged intentional tort of defamation originated in New Jersey (United States) on an Internet Web server While the damage to reputation was done in Australia. Dow J ones tried to argue that Australia should not regulate Internet postings originating on a server in the United States. Products Liability Theories Products liability laWs attempt to discourage manufacturers from put- \"ng defective products into the marketplace by requiring them to assume liability for the injuries their products cause. Three theories are commonly relied upon to do this: (1) breach of contract, (2) negligence, and (3) strict liability. Most states (including Japan and most states in the developing WOT\") use only the rst two of these. The common law countries (i.e., the United States and the British Commonwealth countries) use all three. The EU now relies principally on the last. 189 products liability Liability of a manufacturer for the injuries caused by its defective products. 213 '-M_