Kirby J's opinion in Dow Jones v. Gutnick
I have just posted a "story" (in the Radio Userland parlance) about the Dow Jones v. Gutnick case recently decided by the High Court of Australia to almost universal condemnation in the blogosphere. In it I've abridged Kirby J's concurring opinion. It's a lengthy post, but the decision itself is much longer.
I wanted to show that this particular judge is quite aware that it's an unfortunate decision with potentially very negative and far-reaching consequences. One of his concluding points is that the problems in the law of internet defamation need to be fixed by the legislative branch of governments and by international agreement, not by an Australian court.
If the Court had decided in favour of Dow Jones, what would there be to stop "libel-havens" from developing - countries with no local defamation laws where the multinational media companies could locate all of their web servers? I'm sorry, maybe I'm just too disillusioned by corporate culture, but if there's convenience to be had or a dollar to be saved in doing something like this, it would inevitably happen. After all, we already have tax havens.
The gist of the High Court's decision is that the Australian law on the topic was quite settled. Dow Jones was asking the Court to make radical changes in the Australian common law. Usually widescale law reform of this nature is a matter for Parliament, not the Courts - unless extraordinary circumstances exist (as occured in the Mabo and Wik cases).
Maybe I shouldn't be deliberately confusing the issues, but I'm a lot happier with the High Court stepping in to help out Eddie Mabo or the Wik People on matters of human rights than I would be about extending the same courtesy to make life easier for Dow Jones and the other huge media companies.
Just for the record, I think it would have been better if the High Court of Australia had gone out on limb and decided something constructive rather than passing the buck - which is essentially what they did. Had they done this and decided something which govenments didn't like, corrective legislation would have appeared quickly, to the benefit of everyone. By doing essentially nothing in changing the applicable law, the proponents of change will need to convince govenments why they should make changes. This will prolong things.
On the other hand, I am quite confident of the ability of large multinational media companies, through the clout of their campaign contributions, to lobby the U.S. Government to help them out. It would be very easy for the U.S. Government to sign a bilateral treaty with Australia on this issue. John Howard, the current conservative Australian Prime Minister is always willing to do whatever he can to demonstrate his undying-obedience to his good friend, George W. Bush. If Australia signs a treaty in this area, John Howard will get the constitutional power to legislate this Gutnick case out of existence, and he will.
Of course, a multilateral treaty would be the better way to solve this problem. Whether the rest of the world will be as compliant as the Australian government is another matter. "Let's see - they're not interested in limiting greenhouse gas emissions, they're actively undermining the International Criminal Court but they want the rest of the world to help them preserve the profit margins of some of their campaign contributors in the media industry ..."
I think that this is only a small setback for Dow Jones. They will prevail in the end.
12:36:48 AM 
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