If someone in the USA publishes potentially defamatory remarks about someone in Australia, and that publication takes place on a website which is read by many residents of Australia, where should the potentially-defamed party take the publisher to court? That's the tricky question which has been posed to the High Court of Australia in a recent case, and the court ruled that it was acceptable for the case to be brought to an Australian court.

This has made a lot of journalists terribly unhappy. Dan Gillmor, a columnist whose writings I usually respect, wrote an embarrassingly hot-headed rant about it. An article in Australian IT presents a slightly more level-headed view, but still fails to give the matter the treatment it deserves, so it looks like I'll have to pick up the slack.

One of Dan Gillmor's remarks on the matter was, "to say that defamation occurs where something has been read, as opposed to where it was posted, is an invitation to abuse." Dan's obvious omission in this case is that the converse is also true: if defamation occurs where something is posted, as opposed to where it is read, then this is an invitation to post defamatory material in areas which do not care about the person being defamed. Ought I to assume that broad impunity is better than the alternative? I'm not immediately persuaded that either alternative is ideal, but that's life.

In any case, the whole question of "where" something is published becomes quite arbitrary in the case of the Internet. What do we mean by "publish" in any case? Is something published on the Internet at the time it's made available, or does publication involve the actual dissemination of the information? Are these questions even relevant? The law in Victoria (the state of Australia where the suit is being filed) does not consider the act of publication itself to be the actionable issue, but rather the damage to reputation.

In this instance, the damage to reputation occurred in Victoria when people there read the publication. Thus it was determined that the court of Victoria was an appropriate forum for the case; that it had appropriate jurisdiction. And that, in fact, is all that has been determined here, despite what some alarmists would say. The court may yet decide that the laws of some other domain ought to apply to the case, in which case it will probably rule that the case be tried in New Jersey or New York (where the act of publication is supposed to have taken place, depending on how one defines "publication").

The author of the article in Australian IT compares the case with that of spacecraft orbiting the earth in the early days of the space program. The legal doctrine of the time was that the territory of any nation extended from a point at the earth's core, through its terrestrial boundaries, ad infinitum into the heavens. Thus, an orbiting spacecraft would technically invade any country over which it passed. This was eventually reformed as a matter of practicality.

But is the case at hand anything like this? A passive space vehicle passing overhead does not have any real impact on the territory it technically invades. A defamatory article, on the other hand, does have an impact on the defamed party. If it does not, then the court will rule it not defamatory. The analogy breaks down for this reason: the act of publication has quite real and potentially damaging consequences for the offended party. This isn't much like the "space" situation.

The Internet has opened many cans of worms with regards to the communication of various things. How the matter of defamation is handled in this instance will be interesting. It's a shame that some parties have chosen to attack the ruling rather than reflect on the issues it raises. If you have the time and the interest, I encourage you to read as much of the ruling as you can, since it is well-written and much more thought-provoking than any of the media commentary I have seen. If you can cope with Nutters.org, you can cope with some of this.