Dow Jones & Co Inc v Gutnick

The High Court of Australia considered an appeal by Dow Jones & Co Inc from a decision of the Supreme Court of Victoria concerning alleged defamation of Mr. Joseph Gutnick. The dispute arose from an article published on Dow Jones' website, which Mr. Gutnick claimed was defamatory and published in Victoria, thereby giving the Victorian Supreme Court jurisdiction. Dow Jones argued that the publication occurred in the United States, not Victoria, and that the Victorian court lacked jurisdiction.

The primary legal issue before the High Court was whether the publication of the allegedly defamatory material on the internet constituted publication in Victoria, and consequently, whether the Supreme Court of Victoria had jurisdiction to hear the defamation claim. This involved determining the geographical location of publication in the context of online content accessible globally.

Hayne J, in chambers, focused on the nature of internet publication. His Honour reasoned that a defamatory article is published when it is communicated to a third party. In the context of the internet, this communication occurs at the point where the material is downloaded and made accessible to a user. Therefore, if the article was downloaded and read by someone in Victoria, it was published in Victoria. This principle established that the internet is not a single geographical location for publication, but rather a medium through which publication can occur in multiple jurisdictions simultaneously, including where the reader accesses the material. The court affirmed that the traditional understanding of publication as communication to a third party applied to online content, and that the location of the reader was determinative of the place of publication.