Civil Liberties... Or Taking Liberties? Freedom of speech DOES NOT EQUAL freedom to lie.

Australia rules on where to sue for internet defamation

OUT-LAW News, 10/12/2002

In a landmark decision, Australia's High Court ruled today that in defamation cases, an article posted on the internet is considered as published at the point where it is downloaded and read.

The case was brought by Australian businessman Joseph Gutnick against US publishing group Dow Jones & Company. Dow Jones, publisher of the Wall Street Journal, operates WSJ.com, a news site where users can access the company's newspapers and the Barron's Online magazine.

Gutnick claimed that a Barron's Online article, published in October 2000, defamed him, and he sued Dow Jones in Victoria, where his business is headquartered. He argued that the case should be heard in Australia, because he was only interested to re-establish his allegedly damaged reputation there.

Dow Jones, on the other hand, argued that Australian courts did not have jurisdiction in the case. The publisher claimed that the allegedly defamatory article was published in the US, where the company's web servers are located, and therefore the case should be heard there.

It also claimed that the establishment of jurisdiction where internet material is downloaded would unreasonably expose web publishers to defamation suits all over the world and therefore restrict freedom of speech.

After its arguments were rejected by two lower Australian Courts, Dow Jones brought the case before the country's High Court.

The court considered submissions by 18 media organisations, including AOL Time Warner, the Associated Press, Reuters and Yahoo!. It upheld the earlier decisions, reasoning that "jurisdiction and the place of wrong are established in Victoria" and dismissed the appeal.

The court said in its decision: "Victoria is a clearly appropriate forum for the litigation of [Gutnick's] claim to vindicate his reputation which has been attacked in Victoria, as well, plainly as elsewhere."

It played down, however, the notion that those who publish defamatory material on the internet are answerable before the courts of any nation where the damage to reputation has occurred.

The court considered that this "spectre of 'global' liability" is moderated by "the costs and practicalities of bringing proceedings against a foreign publisher" which "will usually be a sufficient impediment to discourage even the most intrepid of litigants."

It continued:

"Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in the foreign trial. It may do this especially if that judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture."

Dow Jones expressed "disappointment." The defamation case can now continue in Victoria's Supreme Court.

The High Court's decision can be found at:
www.austlii.edu.au/au/cases/cth/high_ct/2002/56.html


Source:
http://www.out-law.com/page-3184

CHOICE Computer magazine puff piece

On 02 September 2009 CHOICE Computer magazine published an article prima facie concerning online censorship. The article appears to be an apology piece for Tony Brisciani and zgeek. The article reports incorrect facts, fails to report likely bias, and makes no attempt to discover the truth behind the events it claims to report. I will state the facts that correct this inaccurate reporting.

CC ARTICLE: "Tony Brisciani is being sued over comments posted by a member on the site's forum."

FACT: Tony Brisciani is being sued over multiple publications he made on his site, zgeek. There were several authors of the publications.

CC ARTICLE: "The issue relates to a war of words about a book that says the 9/11 terrorists attacks were a conspiracy."

FACT: The issue before the courts relates to Tony Brisciani publishing comments stating as fact that Greg Smith as a "scam artist" and a "fraud". Greg Smith first posted on the forum to give a brief review of an exert from the book 'The Third Truth'.

CC ARTICLE: "The defamation action has been brought by Sydney film producer Greg Smith because the subject of the documentary is the same as the conspiracy book."

FACT: The defamation action has been brought because damaging lies about Greg Smith were published by Tony Brisciani. The documentary 'MERCHANT OF DEATH' detailed the life and times of alleged arms-dealer Viktor Bout. The documentary had nothing to do with the 9/11 attacks in the USA or the book 'The Third Truth'. Greg Smith has nothing to do with the publication or sales of book, ‘The Third Truth’. No comments from zgeek members about the book, ‘The Third Truth’, are mentioned in Greg Smith’s legal pleadings.

CC ARTICLE: "[Smith] claims that the comments about the book and the subject, arms dealer Viktor Bout, have damaged his reputation and caused him to lose substantial funding."

FACT: The comments referred to in the law suit are the comments that refer to Greg Smith as a "scam artist" and a "fraud". The book is not referred to in Greg Smith's legal pleadings.

CC ARTICLE: "Tony Brisciani told CHOICE Computer magazine that Greg Smith was never mentioned in any of the posts."

FACT: Greg Smith was mentioned in the posts by name, business name and address on several occasions.

CC ARTICLE: [Tony Brisciani says] "I didn't know about it until later when a moderator noticed it."

FACT: Tony Brisciani wrote to Greg Smith in an email responding to Greg Smith's request to remove the posts. In this email Tony Brisciani says...
"Dear Madam,
After reviewing your threatening email, myself and my team would like to thank you for your feedback but would like to point out you're bat shit crazy and full of shit.
Please consult a real lawyer before sending out threatening emails or you may well be on the receiving end of a lawsuit yourself.
Also, I can't remember when Australian law because enforceable in the USA.
If you could refresh my memory that would be very helpful.
The ZGeek Management."

FACT: When asked again to remove the posts, Tony Brisciani replied with...
"I hope you have deep pockets. It's going to take a lot to sue the owner as they live in the US, not Australia. And they have different laws from us. I hope that gets through your thick head.
You haven't even contacted them properly! I'm not forwarding your shit to them. And I am not going to give you their details unless a court orders me too.
So eat shit sucka! Learn to internet, you come to a forum spamming your book and you get flamed. Your such a fucking poofter you have to sue people because you can't back your shit up.
Pathetic. Go die in a fire."

FACT: Tony Brisciani posted offensive material on the initial thread, and in other areas of his site, after the publications in question were made. Tony Brisciani had full knowledge of exactly what the alleged defamatory material was.

FACT: An initial request for an injunction on the zgeek site was denied due mainly to the fact that by then the material had been removed from public display. Three days after the request for an injunction was dismissed, Tony Brisciani republished some of the allegedly defamatory material on the zgeek site.

CC ARTICLE: "... generally a person and not a company can be defamed and it must affect someone's standing"

FACT: The comments published as fact referred to Greg Smith by name.

FACT: Greg Smith has been the subject of threats by members of the zgeek community as a result of this matter. The threats were published on the zgeek forum and referred to visiting Greg Smith's residential address. Sasha Shaw, an associate of Tony Brisciani, was interviewed by NSW police regarding his involvement in a telephone death threat directed at Greg Smith.