Unfortunately, Steve, I think Dow Jones would beg to differ with you.

Libel Down Under

Big media is not immune...

Brian, I probably should have used the "sarcasm on/off" commands on the last line.

It was absolutely dripping.

This is a tough legal and thorny political question.

But it strikes me that the reasoning offered by the 4th Circuit Court of Appeals (See link to "Libel Down Under" in Brian Ernst's post) is disingenuous. There, the court ruled that a Virginian could not sue an on-line Connecticut publication that allegedly libelled him because if the publishers "did not manifest an intent to aim their websites or the posted articles at a Virginia audience," the proper venue is Connecticut. (The question of choice-of-law -- does Virginia's or Connecticut's apply -- is separate from venue, but let's leave that aside for the moment.)

If you are publishing a web-based newspaper, or writing it a blog, then by definition, aren't you intending to "aim it" everywhere? The distinction between web-based publishing and paper-based publishing is significant in terms of the idea that a paper publisher can and does control the distribution and sales locations of the publication. If the New York Times wanted to stop selling papers in, say, Mississippi, it could yank them tomorrow. Without filtering controls -- and I don't know how feasible this is -- a web-based publisher cannot easily prevent me from reading VodkaPundit in Chicago. This is a simple distinction, it seems to me, that a number of decisions in this area fail to recognize.

The result of such recognition is that web publishers would be subject to suit everywhere they can be accessed, and that is not an appealing legal consequence. (Yes, I think these decisions are results-oriented.)

Maybe there's an easy solution. To download software, or even access certain publications' websites, you have to abide by contracts. Perhaps Dow Jones and even bloggers like V.P. should have a feature on their sites requiring those accessing them to agree to waive their rights to sue for libel or other causes of action in all but the venues chosen by the web publisher (ditto the substantive law). This might be the best way to protect on-line publications, and it's surprising that Dow Jones did not have such a precaution in place.

Maybe

> If you are publishing a web-based newspaper, or writing it a blog, then by definition, aren't you intending to "aim it" everywhere?

No.

Web stuff isn't aimed at anything/anywhere/anyone. It is requested.

The opinion of the court was that a web page is publised AT THE BROWSER and not at the server. Hence the content is subject to the laws of the country in which it is viewed not served.

Which raises the issue then of who is doing the publishing. Is it the author, the provider of the http server, or the browser? There is no reason why a browser of someones service provider couldn't make the <b> tag print out some inflamitory comment about the monarchy of England. Under the current rulling, every author of a web page with bold text would be subject to libel in the Commonweath. So then who is guilty of libel, the author with the <b> tag or AOL Time Warner or Microsoft for publishing the meta data in that way.

And don't think this doesn't happen...it happens every day at the top of all of the blogspot pages. I didn't publish information with an X-10 add for a "security" camera in case a scantaly clad woman lives next door, but in some countries that could be illegal to publish.

And the idea of a EULA for viewing a blog probably wouldn't hold water. Most of the text in EULAs today are scare tactics in there to allow companies to try to do things they are not legaly allowed to do (like Microsoft saying you cannot publish anything dispariging of Microsoft with FrontPage).

Den Beste, and maybe Volokh wrote on this and concluded that after all was said and done, the aggrieved party would still need to enforce their judgement in the country of origin from square one, unless you own some property in Australia. Something to think about for Dow Jones, but probably not most bloggers.