Ruling could be adopted by English courts

Clare Dyer, legal correspondent
guardian.co.uk, Wednesday December 11 2002 16.52 GMT

The ruling by Australia's highest court that an Australian mining magnate, Joseph Gutnick, can sue for libel in the courts of his home country over an article published on a website owned by US-based Dow Jones sends an unnerving message to internet publishers around the world.

They could be forced to defend themselves at huge expense in courts on the other side of the world, possibly over remarks that would not even attract legal liability at home.

The judgment gives a whole new dimension to the forum-shopping which has made London, noted for its pro-claimant libel laws, the libel capital of the world. For printed publica tions, the distribution of only a few copies is enough to open the English courts to foreign libel claimants. The Russian tycoon Boris Berezovsky, for example, has been allowed to sue Forbes, the US business magazine, at the high court in London.

With the internet, publication happens worldwide, wherever the words are viewed online. An English nuclear physicist, Laurence Godfrey, has sued in the UK, Canada, the US and New Zealand and won out-of-court settlements for defamatory comments about him posted in internet chatrooms.

While the Australian judgment is not a precedent for the English courts, it would be "highly persuasive" here, said Dan Tench, of the media law firm Olswangs. English courts regularly adopt rulings from the courts of other common law countries where no similar English case has reached the courts.

Mr Tench added: "I would certainly expect the same result here."

David Hooper, a libel lawyer with the London firm Pinsent Curtis Biddle, said: "It is obviously a great worry. The Australian judges said if this man is a businessman from Victoria why should he have to go off to some far-off state of the USA to a hostile climate and sue there?

"English judges will, I think, be prepared to say to English citizens 'you are entitled to sue in this country.' Relying on judges to curtail it seems to have failed, and I'm sure it will fail in this country.

"There's still some residual feeling that people are jolly lucky to be able to use the English courts."

But not everyone will be able to sue in any particular country. Lawyers said there would still be arguments about which country's courts were the appropriate venue and libel claimants would still have to show some links with the country where they wanted to sue. Dow Jones had claimed it would have to consider libel law "from Afghanistan to Zimbabwe" before posting anything on its website.

In the Australian case, the remarks claimed to be defamatory were about Mr Gutnick's business activities in Australia, the place where he is best known and where his reputation matters most.