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Gutnick Internet Defamation Article - CASE NOTE Gloom doom...

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© Megan Macgregor and Mark Vincent 2003 CASE NOTE Gloom, doom and Gutnick: Dow Jones & Company Inc. v Gutnick 1 Megan Macgregor, Senior Lawyer and Mark Vincent, Managing Partner of Griffins Information Technology and Intellectual Property Lawyers 2 Published in C & L Computers and Law – February/March 2003 The Internet is a remarkably effective tool for expressing dissatisfaction with public figures. Publication on the Internet has the potential to cause much greater damage to a person’s reputation than the dissemination of traditional printed statements. Accordingly there has been a steady flow of defamation suits through the courts in a number of jurisdictions. The defamation action raised by Joseph Gutnick, an Australian mining magnate, against Dow Jones and Company Inc. ( Dow Jones ) has received considerable media attention world- wide. A fair amount of that media attention has been of the apocalyptic variety including more than a few panic stricken predictions that days of freedom of speech on the Internet have gone forever. It is not surprising that the Gutnick decision offends the sensibilities of journalists, publishers and informed commentators in the United States. The First Amendment has provided considerable safeguards to protect their rights to investigate and report on the activities of prominent people. The legal issues visited in the Gutnick decision are not, however novel, nor is it novel that a American publisher can be sued for defamation in another jurisdiction. 1. FACTUAL BACKGROUND Joseph Gutnick is well-known in Australia for his business, religious and philanthropic activities. He is the chairman and managing director of eight publicly listed mining companies and the President of Melbourne Football Club. Dow Jones publishes The Wall Street Journal, Barron’s, the Dow Jones Newswires and a number of other publications. Barron’s weekly magazine is available in print and Internet editions. The Internet edition can be accessed by subscribers to Barron’s, the Wall Street Journal and wsj.com. Dow Jones had published a 7000 word article in the online edition of its weekly magazine, Barron’s, entitled “Unholy Gains” ( the article ) on 29 October 2000. Barron’s online magazine was, at the time the article was published, accessible by 1700 wsj.com subscribers in Australia. These subscribers gained access by entering a user name and password assigned to them by Dow Jones on the Barron’s Online Web site. 1 [2002] HCA 56 (10 December 2002) Accessible at http://www.austlii.edu.au/au/cases/cth/high_ct/2002/56.html 2 Griffins Lawyers <http://www.griffins.com.au> is a boutique commercial law practice with branches in Adelaide, South Australia and Sydney, New South Wales.
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Page 2 Case Note: Gloom, doom and Gutnick: Dow Jones & Company Inc. v Gutnick 1 © Megan Macgregor and Mark Vincent 2003 The article discussed Mr. Gutnick’s business and religious interests in depth and contained allegations that Mr. Gutnick was involved in money laundering, fraud and stock swindling. For example, the author of the
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