As a result, the Australian High Court's decision deprives Internet publishers of any control over where and under whose laws they can be sued... Clicked Into Submission?

A decision issued by seven judges sitting half a world away, interpreting another country's law, may have a greater effect on Internet publishing in the United States than our own First Amendment. According to a ruling from the High Court of Australia, individuals and media that post material online available in Australia must answer for their electronic speech in the courts "down under."

The High Court of Australia held that an Australian national and businessman could sue American publisher Dow Jones & Co. for defamation in a Melbourne court because the allegedly libelous article was accessible in Australia via the Internet. Thus, the legal reality is that an American writer or publisher can now be hauled before a foreign court applying its own law based upon an article wholly researched, written, edited, uploaded, and stored on computers within the United States.

The ruling places the entire power of jurisdiction at the fingertips of foreign "clickers" — if they click, they can file suit in their own backyard using their own laws — while U.S.-based Internet publishers lose the shield of the First Amendment and familiarity of American law at another's hand.

The global reach of the precedent is cause for concern, to say the least. After all, the Internet does not recognize geo-political borders. A click from here is really just the same as a click from there, electronically speaking.

As a result, the Australian High Court's decision deprives Internet publishers of any control over where and under whose laws they can be sued, at the same time creating the perverse incentive to remain electronically silent to eliminate any possibility of traveling to countries "from Afghanistan to Zimbabwe" to defend lawsuits in far less expression-friendly environs.

That, at its core, is the problem of the Australian precedent. It is patently unfair to take the power of jurisdictional destiny out of the Internet publisher's own hands by placing it, instead, in the hands of browsers who click onto the information superhighway from, well, anywhere.

The unfairness did not go unnoticed.

Aside from the editorials prominently placed in all leading media outlets, the U.S. Court of Appeals for the Fourth Circuit issued its own ruling, just three days later, setting forth where an Internet publisher is subject to suit and it did not follow in the missteps of the kangaroo court.

The Fourth Circuit made it clear that, at least in these United States, a defendant must "purposefully avail[ ] [him]self of the privileges of conducting activities in the forum state" before being forced into court there. Thus, jurisdiction "in the Internet context requires proof that the out-of-state defendant's Internet activity is expressly targeted to the forum," and "'a person's act of placing information on the Internet' is not sufficient by itself to 'subject[ ] that person to personal jurisdiction in each [s]tate in which the information is accessed.'"

For these reasons, the American court reached the exact opposite conclusion of the Australian court based on virtually identical facts. Specifically, the Fourth Circuit ruled that a Virginia prison warden could not sue two Connecticut newspapers, their editors and reporters for defamation in a Virginia-based federal court because the newspapers did not "manifest an intent to target and focus on Virginia readers." In short, "the newspapers could not have 'reasonably anticipate[d] being haled into court [in Virginia] to answer for the truth of statements made in their article[s]."

Clearly demonstrating the error of the Australian High Court's ways, the Fourth Circuit noted that "traditional [fairness] principles governing a [s]tate's jurisdiction over persons outside of its borders would be subverted" if "every person placing information on the Internet w[as] subject to personal jurisdiction in every [s]tate."

The Australian High Court was not ignorant of the concern. Justice Kirby, in the most detailed although not controlling opinion, noted that forcing foreign publishers into Australian courts based upon Internet expression created and directed elsewhere was "a result contrary to intuition" and "less than wholly satisfactory."

Nonetheless, the Australian decision stands because there can be no international appeal from a sovereign nation's court of last resort. Welcome to the information age -- the electronic barriers may be down but the legal borders are still up.

December 19, 2002
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