Dow Jones and Company, Inc v Gutnick M99/2001

The High Court of Australia considered an appeal from a decision of the Supreme Court of Victoria in a defamation proceeding brought by Mr. Joseph Gutnick against Dow Jones and Company, Inc. Mr. Gutnick alleged that he had been defamed by an article published on the Dow Jones website, which was accessible to users in Victoria. The core of the dispute concerned whether the publication of the defamatory material on the internet constituted publication in Victoria for the purposes of Australian defamation law.

The primary legal issue before the High Court was to determine the place of publication of a defamatory article uploaded to a website accessible globally. This involved considering the application of traditional defamation principles, particularly the concept of publication, to the novel context of internet dissemination. The Court was required to ascertain where the tort of defamation occurred when a defamatory statement was made available online to a potentially worldwide audience, with a specific focus on whether that location included Victoria, where the plaintiff resided and carried out his business.

Hayne J, in his reasons, focused on the nature of publication in defamation law, which requires communication of the defamatory material to a third party. His Honour reasoned that when a website is accessed by a user, the material is downloaded and displayed on that user's computer. Therefore, publication occurs at the place where the material is downloaded and read. Applying this to the facts, as the article was accessible and downloaded by users in Victoria, it constituted publication in Victoria. This approach affirmed that the internet does not create a borderless jurisdiction for defamation, and publication can be established in any jurisdiction where the defamatory material is accessed and understood.