Wednesday, December 11, 2002

According to another lawyer-blogger:

Predictions by publishers and Internet industry spokesmen of dire "chilling" effects on worldwide Internet publishing caused by today's High Court decision in the Joe Gutnick defamation case are greatly exaggerated.

You can read the rest of Ken Parish’s article for yourself; I see things rather differently.

For a start, the case has been widely misunderstood as an attempt by evil American multinational Dow Jones/Barrons to force Joe Gutnick off his home soil and into “their” presumably one-sided playing field. While everyone agrees that American defamation law is usually less generous to plaintiffs than is Australia’s, I don’t see this at all as being the main point. The offending article about Gutnick was written by Americans, for Americans. Ergo, Gutnick is very much an American public figure (as well as, of course, an Australian one), in direct contradiction of what Ken Parish says.

Don’t just believe me on this. As should really come as no great surprise, the offending article, “Unholy Gains”, itself is available on the Internet – as I found for myself today. So check it out:

(thanks to for the link, although Google found it anyway)

I emphasise here that some of the imputations which may be found in the specifically- offending seven words in the long article “Unholy Gains”: “Gutnick has had dealings with Nachum Goldberg” are false, and that in particular, Gutnick has had no business dealings with Goldberg and has not been a customer of the convicted money-launderer.

There are many, many sides and angle to this case. One rather interesting point, which necessitates delving somewhat into the nitty-gritty of why Nachum Goldberg’s name came briefly up in a long article on Joe Gutnick, is a presciently pre-September 11 note in the Dow Jones/Barrons article, on the misuses of religious – Jewish and Islamic – charities, for money-laundering, or worse.

For the benefit of the general readership out there, however, I’ll confine my main take on the case to the High Court’s actual legal reasoning, and even more specifically, their Honours’ reliance on an 1849 English precedent, The Duke of Brunswick v Harmer. The facts, and summarized law, of this case (the raw case is unable to be sourced on the Internet, BTW) were:

The Duke was defamed in an article in the Weekly Dispatch (as small newspaper). Seventeen years after the article was published, a back copy of the article was bought from the offices of the Weekly Dispatch, by none other than the Duke’s manservant. Another copy was obtained from the British Museum. The Duke sued on these two distributions. The Weekly Dispatch argued that the cause of action was time barred, relying on the original publication date of the article. But the Court held that the delivery of a copy of the newspaper constituted a separate publication, in respect of which an action could be brought.

- key source:

Having dusted off a hardcopy of the case for myself this afternoon, I can generally vouch for the above summary of law. The case was, like Gutnick’s, an appeal, although they seemed to do appeals quite differently in the Duke of Brunswick’s day. The Chief Justice had presided over the first instance finding in the Duke’s favour, and the three puisne judges who sat on the appeal (although only one put their name to the written judgement) were clearly reluctant (to put it mildly) to overturn the Chief Justice’s awarding of a massive 500 pounds to the Duke. In fact, the Chief Justice would ordinarily have been there in person to supervise over such matters, but as the case report notes, he was ill, and therefore absent for a whole “term” of the court. As it happened, however, they went on to grant a retrial to the publisher, but only on a technicality (an unsigned affidavit).

My own, alternative summary of The Duke of Brunswick v Harmer is:

A laughably wrong verdict, coupled with a manifestly excessive award of damages, results in such a severe case of judicial timidity, that it could better be termed judicial paralysis. (But no harm ends up being done, really)

Which would make the case all of a very minor, novelty footnote today – but for the fact that the same judicial paralysis has re-emerged, in the High Court’s reasoning in the Gutnick case. Not only was ancient case of The Duke of Brunswick v Harmer explicitly followed and applied (although with Kirby J wavering), there is the same sense of sang-froid, in the face of ludicrous injustice, emanating from the Bench.

Perhaps Kirby J should not be tarred with exactly the same brush as the other Justices, on this account, but even he braked far too hard on the right with the following:

Such caution is reinforced by the consideration that recently, when invited to do so, the House of Lords rejected the global theory of defamation liability. One of the reasons of the majority was that any such change would be incompatible with the long established principle in the Duke of Brunswick's Case which, by inference, their Lordships felt to be beyond judicial repair – Berezovsky v Michaels [2000] 1 WLR 1004 at 1011-1012, 1024, 1026-1027; [2000] 2 All ER 986 at 993, 1005, 1007-1008; cf Robertson & Nicol at 103. See also Loutchansky v Times Newspapers Ltd (No 2-5) [2002] QB 783 at 814-818


The state of being “beyond judicial repair” may indeed put the ball squarely in parliament’s court (and so outside the proper reaches of judicial law-making), as Kirby J emphasises. Personally though, I don’t think that the House of Lords in Berezovsky indeed saw things quite that way:

There was a good deal of interesting discussion at the Bar about whether an internationally disseminated libel constituted a number of separate torts in each country of publication or whether it should, at least for some purposes, be viewed as a "global tort." In this country the point is settled in the former sense by the decision in Duke of Brunswick v. Harmer (1849) 14 Q.B. 185. Dean Prosser has described the rule, which may lead to a multiplicity of suits, as possibly appropriate to "small communities and limited circulations" but "potentially disastrous today": Interstate Publication (1953) 51 Michigan L.Rev. 959, 961. In the context of the present case, this discussion is entirely academic. There is no question here of a multiplicity of suits. It is the plaintiffs who are for practical purposes treating the publication as a "global tort" by calling upon the English court and only the English court to vindicate their reputations.

Thus, what the English call “academic” (or, in legalese, “obiter dicta”), more intellectually-inclined Australians term “beyond judicial repair”. You may think that less intellectually-inclined Australians would therefore simply state that The Duke of Brunswick v. Harmer is “wrong”, or even “dumb”. But no, Justice Kirby’s High Court brethren seem to have completely missed the haughty dismissal contained within the word “academic”.

“Beyond judicial repair”, indeed – The Duke of Brunswick v. Harmer is more like a stinking corpse; an actual one, not an “academic” one. It is a great shame that the High Court majority in Gutnick saw fit to dig such a corpse up, and then mooch lamely around it, like a pack of dogs only half-aware of what they had just done.

Fascinating find there, will surely make for great discussion in our next IT law class.

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