Dow Jones and Company Inc v Gutnick

The High Court of Australia, in chambers, considered an application by Dow Jones and Company Inc. for special leave to appeal a decision of the Supreme Court of Victoria. The dispute concerned allegations of defamation brought by Mr. Joseph Gutnick against Dow Jones, arising from an article published on an internet website accessible in Victoria. Mr. Gutnick claimed the article, which discussed his business dealings and alleged links to a rabbi involved in a criminal investigation, was defamatory of him in Victoria. Dow Jones, an American company, argued that the Victorian Supreme Court lacked jurisdiction over it, contending that the publication of the article on the internet did not constitute publication in Victoria for the purposes of Australian defamation law.

The central legal issue before the High Court was whether the Supreme Court of Victoria had jurisdiction to entertain Mr. Gutnick's defamation claim against Dow Jones. This required the court to determine where, for the purposes of defamation law, a publication on the internet occurs. Specifically, the court had to consider whether the act of making the defamatory material available to a user in Victoria constituted publication in that jurisdiction, thereby grounding the court's territorial jurisdiction.

The High Court granted special leave to appeal, effectively allowing the case to proceed to a full hearing. In its reasoning, the Court affirmed the traditional understanding of publication in defamation law, which requires the communication of defamatory material to a third party. Applying this to the internet context, the Court held that publication occurs at the place where the material is downloaded and read by the recipient. Therefore, by making the article accessible to Mr. Gutnick in Victoria, Dow Jones had published the defamatory material in Victoria, and the Supreme Court of Victoria possessed jurisdiction to hear the case. The Court rejected the argument that publication on the internet was a single, indivisible act occurring only at the server's location.