- The Washington Times - Monday, December 16, 2002

Tuesday's Australian High Court ruling that New Jersey-based publisher Dow Jones can be sued for libel under Australian law because of an article available on the Internet is a grave setback for freedom of the press and illustrates anew the dangers of globalism. Siding with mining magnate Joseph Gutnick, the Australian High Court held that, although the offending article was published halfway around the world, because it could be downloaded in Melbourne, Mr. Gutnick's home town, he had grounds to sue in Australia. The ruling subjects journalists and publishers to the peril that they can be sued anywhere in the world where libel cases are easy to bring, even where the local judiciary lacks independence, if their work is accessible on the Internet.
Legitimate investigative reporting, exposes of corruption and the public right-to-know will suffer because of the Australian precedent. Consider the current flap over Ukrainian President Leonid Kuchma's role in selling advanced radar systems to Iraq. It is a legitimate subject for media inquiry, but the Australian justices have made it riskier for American journalists to pursue. Unlike the United States, Ukraine allows government officials to sue for libel. The lax law has resulted in novel tactics to control the opposition press and independent media. Politicians sue in jurisdictions with favorable judges, and are awarded huge damages. They then purchase the bankrupt news organization to silence it. In one astounding case, a newspaper editor was jailed for a "libelous" story about a Ukrainian oligarch, Grigory Surkis, that hadn't even been published. A draft of the offending article was leaked to parliamentarian Victor Medvedchuk, a business associate of Mr. Surkis, who turned it over to Ukraine's procurator general. He pursued the case although the draft had never been printed.
Ukraine's libel laws, and less-nuanced means of silencing journalists like intimidation, beatings and government-sanctioned killing, earned it the distinction of number six on the world's list of enemies of the press from the New York-based Committee to Protect Journalists in 1999.
The Australian ruling opens the door to global jurisdiction-shopping for libel suits in places like Zimbabwe. Anywhere an offending article can be downloaded can become a venue for a trial. Combined with the trend toward corporate acquisitions of news organizations, the result will stifle a critical press. Mega-corporate ownership of news media means the parent corporation often has assets in emerging markets like China, Russia, or Africa that could be at risk in local libel trials. Does anyone think Disney's management will let ABC air an expose about Chinese officials after it has invested hundreds of millions in a theme park in China?
Globalism poses two perils to the First Amendment. A reporter's work can be posted on the Internet even without the journalist's or publisher's consent, subjecting them to libel suits anywhere. The effect is globally chilling for journalists, especially those who aren't backed by deep pockets and corporate lawyers. The second peril is that the Australian ruling lowers the hurdle on libel suits to those countries whose laws afford the press the least protection. Despite our sovereign Bill of Rights, this will erode our First Amendment. Americans will read less about foreign corruption and Russian mafias if our media fear the risks.
In this collision of globalism and freedom, there are technological and legal remedies. The technological remedy is an Internet embargo. In response to the Australian High Court ruling, the Internet publishing community AOL Time Warner, Amazon, Yahoo, Bloomberg LP, and others who filed briefs in the Dow Jones case should use technology to block all Australian users access to their sites. The same high-tech blockade should be applied to other countries that adopt the Australian precedent.
The legal remedy is immunity. A priority for the upcoming congressional session is legislation immunizing American publishers and journalists from this spurious litigation. Now is the time to assert the primacy of our First Amendment and its protections, before the leveling hammers of globalism crush it.

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