## Facts

- Dow Jones operated WSJ.com, a subscription news service with servers located in New Jersey, United States, and published “Barron’s Online.”
- An article titled “Unholy Gains” on Barron’s Online referred to Joseph Gutnick, a Melbourne businessman, in ways he alleged were defamatory.
- Only a handful of print copies reached Australia and none were shown to have been received in Victoria; Gutnick relied on access to the online article in Victoria.
- Gutnick sued Dow Jones in the Supreme Court of Victoria for reputational harm suffered in Victoria, where he lived and was known.
- Dow Jones sought to stay or dismiss the proceeding, arguing publication occurred where the article was uploaded (New Jersey) and that Victoria was an inappropriate forum.

## Issues

1. For defamation via the internet, whether publication occurs where material is uploaded to a server or where it is downloaded and comprehended by a reader.
2. For choice of law, whether the substantive law is that of the upload location or the place where reputational harm is suffered (lex loci delicti).
3. Whether service out of jurisdiction was valid and whether Victoria was a clearly inappropriate forum warranting a stay.

## Decision

- The High Court unanimously dismissed Dow Jones’s appeal with costs, permitting the Victorian proceeding to continue.
- The Court held publication of the online article occurred in Victoria to the extent it was downloaded and understood there by third parties.
- The Court held Victorian law governed, as the place of the tort was where reputational damage was alleged to occur.
- Service out of jurisdiction was valid under Victorian rules for torts committed in Victoria or damage suffered there.
- Victoria was not a clearly inappropriate forum, particularly because the claim was confined to reputational harm in Victoria.
- The Court made no determination on whether the article was defamatory; it decided only jurisdiction, publication, and related procedural questions.

## Legal Principles

- In defamation, “publication” requires communication to a third party in a comprehensible form; for online material, this occurs where the material is downloaded and understood, not where it is uploaded or stored.
- Reputational harm is tied to the community where the plaintiff lives or is known; the place of the tort in defamation aligns with where that harm is alleged to occur.
- A “single publication” approach locating internet publication solely at the server/upload location was rejected; each local comprehension can constitute a local publication for jurisdictional purposes.
- Under lex loci delicti principles, the substantive law applicable to an internet defamation claim is ordinarily the law of the place of publication and alleged reputational damage.
- Service out of jurisdiction is available where the proceeding is in respect of a tort committed within the forum or damage suffered there, and a stay is not granted absent a showing that the forum is clearly inappropriate.

## Conclusion

The High Court held that internet defamation is published where the content is downloaded and understood, making Victoria a proper forum and Victorian law applicable for a claim limited to reputational harm in Victoria, even though the publisher’s servers were in the United States.


Dow Jones & Co. v. Gutnick, [2002] HCA 56 (Austl. 2002)