Re: The Macquarie Bank Case thrown out

On Thu, 10 Jun 1999, Paul Geller <pgeller[_at_]law.usc.edu> wrote:
>
> On Wed, 9 Jun 1999, Michael Lean <m.lean[_at_]qut.edu.au> wrote:
> >
> > The Sydney Morning Herald reported that the judge said the most
> > significant factor was the nature of the Internet itself. Here is
> > some of the judgement:
> >
> > "It is reasonably plain, I think that once published on the
> > Internet, material is tranmitted anywhere in the world that
> > has an Internet connection. It may be received by anybody,
> > anywhere, having the appropriate facilities.
> >
> [snip]
> >
> > "It may well be that [in another country] the defendant has an
> > unfettered right to publish the material. To make an order
> > interfering with such a right would exceed the proper limits of
> > the use of the injunctive power of this court."
>
> Should the court have at least taken a sampling of laws in
> the major countries in which the alleged defamation would
> have been likely to reach significant audiences? If these
> laws would have allowed for relief under the facts of the
> case, and assuming personal jurisdiction over the defendant,
> should the judge have then considered dealing with the case?
> If all judges acted with the arguably excessive restraint
> of this one, where would claimants obtain relief against
> global cyber-torts, including copyright infringement?

While the legal points raised in this discussion are interesting, I am surprised that no one is dealing with the basic factual error in the judge's opinion. Not only is it not "reasonably apparent" that works published on the Internet are available worldwide, that postulate is simply wrong. As a factual matter, it is possible to limit territorially the reach of one's Internet postings and publishers who fail to do so have found themselves suffering the consequences of this in other courts. The Chinese and Singaporean governments have led the way in demonstrating how efficient territorial limits can be, but we also have the very clear example of Compuserve Germany which, based on the news reports, seems to have developed technology to limit Internet postings into and out of a single province (Bavaria) in order to comply with court orders.

So, I would suggest that the court would have been entirely accurate to say that "it is reasonably apparent" that one who posts to the Internet without specifiying any limits to the posting anticipates that the message may be accessed worldwide. But the court's attempted reductio ad absurdum argument does not hold up. There is nothing inherent in Internet technology to compel the conclusion that courts should simply throw up their hands because nothing can be done. It would be as nonsensical to relieve satellite broadcasters of all responsibility for everything that they transmit because "it is reasonably apparent" that sending a signal into the ether allows anyone with a dish to pick it up anywhere in the world. But of course this is not the result, because satellite broadcasters do not usually send their signals without technological limits on who may receive them and when. And those satellite carriers who do, suffer the consequences.

While the limiting technologies employed and available for use on the Net are less familiar, there is simply no technological reason why the same principles should not apply, as a matter of fact, to the Internet as to satellite transmissions and other forms of electronic communication. A decision to publish worldwide on the Net is a conscious decision of the publisher; it is not dictated by the technology.

Darrell Panethiere
London
<darrell.panethiere[_at_]ifpi.org> Received on Thu Jun 24 1999 - 09:24:55 GMT