Should the U.N. Intervene in a Transnational Internet Defamation Case?
An American Journalist Sued in Australia Files a Petition Seeking Help

A few years ago, Australian mining magnate Joe Gutnick sued American reporter Bill Alpert for defamation in Australia. Now, in an unprecedented move, Alpert has taken his case to the U.N. - filing a petition with the Human Rights Committee. The case itself, and the disposition of the petition, are likely to be landmarks in the law regarding international jurisdiction with respect to Internet publications.

Alpert claims in his petition that a decision by Australia's High Court, forcing him to face suit there, denied him the right of free speech. For this reason, he argues, it breached Article 19 of the United Nations' International Covenant on Civil and Political Rights (ICCPR).

In this instance, the nation in which the case is tried is likely to make a significant different to the outcome. Defamation laws in Australia are stricter than in the US, where the First Amendment generally permits comments such as those made in the article. And if Australian defamation law applies, Internet publication may have to be tailored to the country whose laws are most restrictive - a blow to free speech.

The issue the case raises is of crucial importance: Will words that appear on the Internet be subject to defamation (and perhaps other) suits wherever they may be read - that is, in any of the world's 300-plus jurisdictions? And if not, where can suits be brought, and not brought? What is the dividing line?

I will argue that the U.N. is not the right forum to resolve these key questions.

The Article At Issue, and the Argument Over Jurisdiction

The article at issue, entitled "Unholy Gains," was first published in October 2000 in Barron's, an American business magazine. Later, the article was published on the Internet for Barron's subscribers.

The article recounted allegations that Gutnick committed a series of offences, stock manipulations, classic stock scams and frauds, and was connected with money laundering.

Gutnick sued both Alpert and Dow Jones in Victoria, Australia, claiming the article was false and defamatory. Alpert and his publisher, Dow Jones, contested jurisdiction.

Gutnick argued Victorian jurisdiction was proper because he resides there; his reputation was damaged there; and the article was published there in that it was downloaded there.

No one could establish with certainty how many people in Victoria had downloaded the story. Although a small number of copies of the actual print version of Barron's were delivered to Australia, there appears to have been a larger Internet readership. The Gutnick article went on the defendant's Website on October 29, 2000. Dow Jones maintains a subscription based Website, "wsj.com," where it posts Barron's articles. There are 550,000 subscribers worldwide. Of those subscribers, 1700 paid with Australian credit cards.

Ultimately, Dow Jones made a formal admission that it had several hundred Victorian subscribers to wsj.com. Dow Jones also admitted that its Victorian subscribers included persons from finance, business and stockbroking.

Gutnick also contended that Dow Jones must have intended that its article be accessible in Victoria, for it knew it had Victorian subscribers; controlled their access; and did not forbid them access.

Alpert and Dow Jones countered that the article was published in New Jersey, where the information was stored in a computer, and thus the suit should be brought, if anywhere, there - or in jurisdictions in which Dow Jones had an active intention to publish (which, they say, did not include Victoria).

Otherwise, they argued, a website would necessary be treated as being published everywhere it is Internet-accessible. And if that were the case, the law of the most restrictive jurisdiction would apply, to the detriment of the free speech rights of all citizens of less restrictive jurisdictions.

Gutnick won his right to appear in Australian court. Earlier this year, the Victorian Supreme Court ruled that the case should be heard in Victoria. The Australian High Court reaffirmed that decision on appeal. The next hearing in the case is scheduled to occur in November.

The ICCPR, The Protocol, the Committee, and The Right to Petition

What law authorized Alpert to petition the United Nations? It may be surprising, but the law has existed for decades.

On December 16, 1966, the General Assembly adopted the ICCPR and its corresponding Optional First Protocol ("the Protocol"), and opened them for signature. On March 23, 1976, the ICCPR and the Protocol came into force. One hundred and forty-seven states are now parties to the ICCPR; a subset of the states is also party to the Protocol.

The ICCPR guarantees, among other rights, the right to freedom of expression. Specifically, Article 19 states that "everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

Alpert apparently is seeking to protect his write to impart information and ideas in print and electronically, including through the medium of the Internet. Thus, his case seems to properly invoke Article 19.

Article 19 also states, however, that the exercise of these rights" carries with it special duties and responsibilities" and thus may "be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; and (b) For the protection of national security or of public order (order public), or of public health or morals." This language has been invoked by, for example, European nations that have banned certain types of hate speech both on- and offline.

The Protocol provides for the confidential consideration, by the U.N. Human Rights Committee, of petitions from individuals who claim to be victims of a violation of any of these rights, including the right to freedom of expression.

The Committee was established to monitor the implementation of the Covenant and its related Protocols for the States that are parties. Its 18 members - independent experts - are persons of who are recognized experts in the field of human rights. They serve for term of four years. The Committee meets three times a year for three-week sessions.

For an individual to petition, a state must be a party to both the ICCPR and the Protocol; Australia is a party to both. After the petition is filed, the state has six months to provide any written explanation or clarifications in response.

The Committee then makes recommendations and/or findings. It is unclear what sanctions Australia would face if the findings were adverse to it, and it chose not to comply with the recommendations.

The U.N. Human Rights Committee Is the Wrong Forum

Regardless of what one thinks of the merits of the case, the U.N. Human Rights Committee is not the place it should be decided.

This is a complex, technical case in which there is a dispute over which country's law is applicable. Typically, the Committee considers petitions by citizens claiming their own country violated their rights. They are experts in human rights - not in matters of international defamation jurisdiction and the Internet.

This petition is thus far outside the Committee's usual expertise. Thus, if the Committee does address the petition, it should be careful to familiarize itself with this new area - considering, among other issues, the implications of a holding either way, and the impact on new technologies.

Alpert may also find that the strategy of going to the U.N. may boomerang. Notions of freedom of speech under Article 19 are not as unfettered as under the U.S. Constitution's First Amendment - as the hate speech example above illustrates. Thus, the Committee may well find against Alpert.

How will the Human Rights Committee determine whether or not someone who publishes on the Internet has crossed a line, and is actually targeting an overseas market? If courts worldwide are struggling to find the right balance in Internet jurisdiction cases, it may be counterproductive for an international body to make a public determination of what would or would not trigger jurisdiction in defamation cases involving Internet publication.

The Possibility of Other Approaches

Then how should the issue be resolved, as an international matter? So far, it has been hard to get countries to agree to jurisdictional rules for cyberspace, as a matter of treaty. But unless such rules are agreed upon, it is unlikely that countries will be able to enforce their own rules against individuals and companies whose assets are located elsewhere.

Indeed, perhaps one of the most remarkable aspects of this case is that Dow Jones turned up to answer Gutnick's complaint. And what is the guarantee that a judgment in that case, or another, would be enforceable? Even if Alpert and Dow Jones lose, they may well seek and receive a U.S. court's declaration that the Australian judgment against them is unenforceable in the U.S. for First Amendment reasons.

By comparison, as I discussed in a previous column, a U.S. federal district court judge ruled last year that Yahoo did not have to block French citizens' access to online sales of Nazi memorabilia, which are illegal in France. (In France, such sales violate a criminal statute outlawing the exhibition of Nazi propaganda and artifacts for sale.)

Meanwhile, even within the United States, the issue of which State's law is applicable in Internet defamation cases has still not been definitively resolved.

Just last week, the Supreme Court refused to consider a Washington State case that raised the issue. (The issue arose, there, in a defamation suit against Healthgrades.com, a Colorado based company that offers ratings of health care providers on the Internet, by a Washington home health care agency that claims it deserved a better grade.)

In the midst of all this confusion and flux, what we need is not the intervention of a U.N. Committee that is not adept in the area. Such a decision would be premature, at best, and damaging, at worst. More international negotiation in this area, towards a set of treaty rules that include provisions for enforcement, is the better way forward.