The decision upholds a previous ruling by the Supreme Court of Victoria which held that an online article is published in the jurisdiction where it is downloaded, regardless of where it was uploaded or where the publishers server resides. It is expected to influence decisions in jurisdictions worldwide.
"It's not binding on any other country, but other jurisdictions might consider it to be of persuasive value, or might adopt similar arguments," Brendan Scott, a lawyer with Gilbert and Tobin, told ZDNet Australia.
"It's very important in that it says that publishers have to look to the place where the document is read/received when determining jurisdiction, not the place where the servers are hosted or some other place," said Scott in an e-mail interview. "Otherwise everyone would locate their servers in Antarctica or wherever in an effort to escape defamation laws."
The landmark ruling was made in the case of Dow Jones & Company Inc v Gutnick, in which publisher Dow Jones appealed to the High Court to allow the defamation case bought against them by Australian mining magnate Joe Gutnick to be heard in the United States, where the servers hosting the disputed article reside. The appeal was dismissed with costs.
"Victoria is a clearly appropriate forum for the litigation of the respondent's claim to vindicate his reputation which has been attacked in Victoria, as well, plainly as elsewhere," read the ruling. "For myself I would see no immediate reason why, if a person has been defamed in more than one jurisdiction, he or she, if so advised might not litigate the case in each of those jurisdictions."
In this case the issue does not arise because Gutnick has indicated he is only interested in re-establishing his reputation in his home-state of Victoria.
According to Scott, publishers residing in relatively liberal publication regimes are more likely to be affected by this judgement. "For example, in the US there is a constitutional protection of freedom of speech, which is absent in Australia," he said. "So the same statement can be legal in the US but illegal in Australia."
And to the US the Australian High Court means what?.....
NOTHING.