Gutnick - QUT Digital Repository: http:/

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QUT Digital Repository: Fitzgerald, Brian F. (2003) "Dow Jones & Company Inc v Gutnick [2002] HCA 56: Negotiating American Legal Hegemony in the Transnational World of Cyberspace". Melbourne University Law Review 27:590. © Copyright 2003 Brian F. Fitzgerald
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Negotiating “American Legal Hegemony” in the Transnational World of Cyberspace: Dow Jones & Company Inc. v Gutnick [2002] HCA 56 Professor Brian Fitzgerald Head of School of Law Queensland University of Technology (QUT) Brisbane Australia B Fitzgerald Dow Jones & Company Inc v Gutnick [2002] HCA 56: Negotiating American Legal Hegemony in the Transnational World of Cyberspace” (2003) 27 MULR 590 Cyberspace is the epitome of the “transnational” 1 . Never before have we seen a space in which individuals, corporations, communities, governments and other entities can exist within and beyond the borders of the nation state in such an instantaneous, contemporaneous or ubiquitous manner. At a conceptual level the Gutnick decision provides an interesting scenario upon which to postulate a constitutionalism for transnational society or more modestly a constitutionalism for cyberspace. At the doctrinal level the decision brings into play interesting questions of cyberlaw 2 and defamation law. (i) Background There is sufficient litigation 3 and academic writing 4 dating from at least the mid 1990s to confirm that increasing use of the Internet has vigorously challenged traditional approaches to jurisdiction based on the territorial nature of sovereignty. 5 Jurisdiction as a principle of (public and private) international law operating in a context of 1 B Fitzgerald, “Software as Discourse: The Power of Intellectual Property in Digital Architecture” (2000) 18 Cardozo Journal of Arts and Entertainment Law Journal 337 p 353 f/n 52 2 On this term see: L Lessig, Law of the Horse: What Cyberlaw Might Teach (1999) 113 Harvard LR 501 3 See generally: B Fitzgerald and A Fitzgerald, Cyberlaw: Cases and Materials on the Internet, Digital Intellectual Property and E Commerce (2002) Lexis Nexis Butterworths Sydney, Chapter 5 – updated online at 4 For example, see, David Johnson and David Post, “Law and Borders – The Rise of Law in Cyberspace” (1996) 48 Stan. L Rev 1367 5 The bases of jurisdiction pursuant to International law are: territorial sovereignty (territorial principle), nationality (nationality principle), protection of nationals (passive personality principle), protection of the state from outside events that may have an effect within the jurisdiction (protective principle) and universality of the crime (the universal principle): Louis Henkin, Richard Pugh, Oscar Schacter and Hans Smit, International Law: Cases and Materials 3 rd ed (1993) West Publishing St Paul Minn, 1049. See also American Bar Association, Achieving Legal and Business Order in Cyberspace: A Report on Global Jurisdictional Issues Created by the Internet pp26ff.
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Gutnick - QUT Digital Repository: http:/

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