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CASE NOTES GUTNICK * A N A DEQUATE R ESPONSE TO T RANSNATIONAL I NTERNET D EFAMATION ? Case Note — Dow Jones v Gutnick CONTENTS I Introduction II The Facts and Decision in Gutnick III Analysis A Jurisdiction: Damage in the Forum B Jurisdiction: Tort Committed in the Forum C Jurisdiction: Appropriate Forum D The Problem of Multiple Suits E Choice of Law IV Conclusion I INTRODUCTION The recent decision of the High Court of Australia in Dow Jones & Co Inc v Gutnick 1 has inspired much controversy. The reaction from media and technology groups has been particularly critical as they see the decision representing a threat to freedom of expression on the Internet and a deterrent to online publication. 2 It has also been suggested that the High Court judgments reflect a peculiarly nationalistic approach to resolving problems with respect to a medium that is fundamentally borderless and aterritorial. 3 More generally, the decision is also highly significant because it represents the first major opportunity for an Australian court to examine the application of the rules of private international law to Internet conduct. While in the United States and Europe there now exists a large body of judicial decisions 4 and legislative * (2002) 194 ALR 433. 1 (2002) 194 ALR 433 (‘ Gutnick ’). 2 Kevin Balshaw, Gutnick and the Internet: Too Many Jurisdictions (2002) <http://www.crikey.com.au/media/2002/12/13/20021213gutnick.html> at 1 May 2003; Peter Coroneos, Think Global, Act Local: The Gutnick Decision and the Internet (2002) <http://www.iia.net.au/gutnick_op_ed.html> at 1 May 2003; Sally Jackson and Caitlin Fitzsimmons, ‘Gutnick Decision Spooking Internet’, The Australian (Sydney), 11 December 2002, 4. 3 Coroneos, above n 2. 4 In the US there have been over 300 decided cases dealing with jurisdictional issues in relation to the Internet. The most commonly cited is perhaps Zippo Manufacturing Co v Zippo Dot Com Inc , 952 F Supp 1119 (WD Pa, 1997), which introduced the ‘sliding scale’ test for jurisdiction based on the quantity and intensity of a defendant’s contacts with the forum. In Europe there have been fewer cases, mainly concerning the territorial reach of local trademark law in respect of allegedly infringing activity taking place on a foreign based website: see, eg, [2000] EWHC Ch 179 (Unreported, Jacob J, 25 July 2000); Carpoint SPA v Microsoft Corporation [2000] European Trade Mark Reports 802.
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Melbourne Journal of International Law [Vol 4 activity 5 on the topic, in Australia, until Gutnick , the issues of jurisdiction and choice of law in relation to the Internet remained largely unexplored. 6
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