BROOKE GLADSTONE: Australia's highest court has made a decision that gives prominent businessman Joseph Gutnick [sp?] permission to sue Dow Jones & Company for defamation over a 7,000 word article that was published in Barron's in October of 2000. What makes this a landmark case and the reason why media lawyers in this country are shaking their heads in disbelief is that Gutnick is going to be allowed to sue in his home state of Victoria, Australia even though Barron's operation is based in New York City. Now we like our First Amendment and for the most part we like the idea of the internet as a global engine for free expression. The Australia ruling sets a dramatic precedent that lawyers and publishers will be watching very closely. Every time a media lawyer makes a decision to hold a story or wave it through, they may have to consider not just the laws in this country but also the laws in any country with an interest in the story. Sandy Baron [sp?] heads the Libel Defense Resource Center and she joins me now. Sandy welcome to the show.
SANDY BARON: Thank you.
BROOKE GLADSTONE: Sandy, briefly, what does the Australia decision mean for publishers on the internet?
SANDY BARON:At its most narrow, what the Australian decision means is that any publisher who is writing about an individual or corporation that can claim to have a reputation in Australia has theoretically itself up to litigation in Australia.
BROOKE GLADSTONE:Well libel has been pretty much decriminalized in this country, hasn't it? What are the important differences between the U.S. approach to libel and defamation and the Australian approach, which I understand is based on English Common Law?
SANDY BARON:It is based on English Common Law, and in fact so was our law until 1964 when the Supreme Court of the United States in a truly landmark ruling decided that the First Amendment to our Constitution which allows for free press and free speech applied to libel and imposed some very strong restrictions on the ability of plaintiffs to win libel suits. And among those restrictions is a requirement that the plaintiff prove, for example, that what he claims is defamatory is also false. That's not required under English Common Law or in Australia. A plaintiff if this country has to prove that the defendant published whatever he claims is defamatory with fault! -- either negligently or knowingly falsely. None of that, again, would be true in Australia. Indeed, all an Australian plaintiff basically has to do is be alive and appear in court and claim that something defamatory was published by the defendant. At that point virtually all of the balls shift to the defendant to get himself out of the box.
BROOKE GLADSTONE: So do you think Gutnick has a case?
SANDY BARON:Oh, I don't necessarily believe that at all! I think Dow Jones probably did a very good job in its reporting. I have no reason to believe otherwise. And fortunately Dow Jones at least has the resources to do what it needs to do in order to fight the claim in Australia. I think the people who need to be more concerned are those without that kind of resource. What you find in English courts that you do not find to the same degree in American courts is that English press settled their cases a lot more frequently than American media do, and they do so not necessarily because they think what they printed was false or they think it was wrong or that they think it's not in the public interest. They may think all of that is true! It is because the costs of litigating are so high, and if they lose, they not only have to pay their own costs but they have to pay the plaintiff's attorneys' fees and costs. Can be staggering. It can be crippling. If something that you write in your newspaper that goes up on the internet winds up in Zimbabwe and you face a ruinous lawsuit, and people in Zimbabwe are able to bring you to court, that might cause you to pull your punches at least with regard to what you put on the web!
SANDY BARON:I think that's a very legitimate fear. And it may be that we will see that what is published on the web is decidedly less interesting, less vigorous -- less - period -- than what we now see published in print in the United States. But it's hard to imagine that new world. It is possible that technology will provide a solution -- a mechanism by which publications can limit the reach of readership on the internet. I think that's unlikely, however. I think a more likely scenario, and, and a good one, would be the adoption of an international treaty that would give some certainty to which law and whose law will govern cases like this; preferably I would think from the perspective of the media, the law of the country in which the media publishes.
BROOKE GLADSTONE: Well Sandy Baron, thank you very much.
SANDY BARON: It was my pleasure. Thank you.
BROOKE GLADSTONE: Sandy Baron heads the Libel Defense Resource Center based here in New York City. [MUSIC TAG]