AUSTRALIAN publishers will be tempted to move their businesses and assets to the US in the wake of a new law shielding US journalists and publishers from defamation from outside the country, a Sydney lawyer says.
Barrister Tim Robertson, SC, who represented US newswire Dow Jones when it was sued by Australian mining magnate Joseph Gutnick, said the law, signed by President Barack Obama overnight, would be seen as “a line in the sand”. “The law simply reflects the constitutional position in the United States where there is freedom of speech, and there isn’t in most other countries,” Mr Robertson said.
“The US courts, as a matter of public policy, have always refused to enforce defamation verdicts from countries which don’t respect free speech rights, and that would include Australia.”
He said the law, which prevents US federal courts from recognising or enforcing a foreign judgment for defamation that is inconsistent with the first amendment of the American Constitution, has serious long-term implications for Australia.
“Unless Australia cleans up its act it will find publishers, such as Australian-based Crikey, relocating to the US, so that their website is published in the US and their assets are in the US,” Mr Robertson said. “This will be the incentive for publishers to move there because people won’t be able to enforce verdicts against them.
“It’s the line in the sand for protection of web publishers.
“It means many web publishers who publish controversial material critical of politicians and business people are going to gravitate to the United States.” Mr Robertson said that the long-running Gutnick case never went to trial and was settled out of court in 2004. Mr Gutnick had sued Dow Jones because of an article it ran in Barron’s magazine website falsely accusing him of associating with a man who had been jailed for tax evasion and money laundering.
Mr Robertson said 99.9 per cent of Barron’s readers were in the US yet Mr Gutnick chose to sue in Victoria. “This law is a reaction to the long-arm jurisdiction of Australia and British courts in defamation cases – the imperialistic jurisdiction asserted by Australian and UK courts over what is essentially US subject matter,” he said.
Supporters of the new law said that so-called “libel tourists” were undermining free speech rights in the first amendment.
Be the first to comment