Dow Jones & Co Inc v Gutnick

Dow Jones & Company Inc. appealed to the High Court of Australia concerning a defamation action brought by Mr. Gutnick. The dispute arose from an article published by Dow Jones in its magazine Barron's and also made available on its website. Mr. Gutnick alleged that the article, which contained statements he considered defamatory, was published in Victoria, where he resides and carries on business. The core of the appeal concerned whether the publication of the article on the internet constituted publication in Victoria for the purposes of defamation law.

The High Court was required to determine whether the material complained of, housed on a computer server in the United States and accessible via the internet, was legally considered published in Victoria when downloaded by a subscriber in that state. This involved questions of where a tort of defamation occurs in the context of internet publication, the application of the single publication rule, and the principles of private international law regarding the choice of law and service of process when the alleged tort occurs across jurisdictions.

The Court reasoned that publication of defamatory material occurs where the material is downloaded and made comprehensible to a third party. In the context of the internet, this means that publication occurs in every jurisdiction where the material is accessed and read. The Court applied the principle of *lex loci delicti*, holding that the law of the place where the tort is committed governs the substantive rights. As Mr. Gutnick's reputation was primarily in Victoria, and the defamatory material was downloaded and made comprehensible there, Victorian law applied. The Court also found that service of the writ out of the jurisdiction was validly effected, as the action was brought in respect of a tort committed and damage suffered in Victoria, and Victoria was considered a convenient forum.

The appeal was dismissed, with Dow Jones & Company Inc. ordered to pay Mr. Gutnick's costs.