High Court of Australia Transcripts

Dow Jones & Company, Inc v Gutnick M3/2002 (28 May 2002)

Melbourne No M3 of 2002

B e t w e e n -

DOW JONES & COMPANY, INC

Appellant

and

JOSEPH GUTNICK

Respondent

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 28 MAY 2002, AT 10.16 AM

Copyright in the High Court of Australia

MR G.R. ROBERTSON, QC: If your Honours please, I appear for the appellant with MR T.F. ROBERTSON, SC. (instructed by Gilbert & Tobin)

MR J.L. SHER, QC: May it please the Court, I appear with my learned friend, MR M.F. WHEELAHAN, for the respondent. (instructed by Schetzer, Brott & Appel)

MR B.W. WALKER, SC: May it please the Court, with MS S.E. PRITCHARD, I seek leave to appear on behalf of Amazon.com, Inc, Associated Press, Association of Alternative Newsweeklies, BloombergLP, Cable News Network LP, LLLP, Guardian Newspapers Ltd, Knight Ridder, Inc, Media/Professional Insurance, The New York Times Company, News Limited, Online News Association, Reuters Group PLC, Time Inc, Tribune Company, The Washington Post Company, Yahoo! Inc, Internet Industry Association, and John Fairfax Holdings Ltd as interveners. (instructed by Blake Dawson Waldron)

GLEESON CJ: Is that opposed, Mr Sher?

MR SHER: It is, your Honours. Would your Honours wish to hear me?

GLEESON CJ: Yes, Mr Sher.

MR SHER: There are two points we wish to make in opposition to the intervention. The first is a short point and it is simply this, that this case does not concern free access to the Internet. That is the basis for the application of intervention. That is to say - - -

KIRBY J: The argument is that if your argument is correct, that that will have a freezing effect on what people are willing in different countries of the world to put on the Internet. That is an argument we are going to have to deal with, so why should we not hear those who wish to express that point of view and indicate how it is correct?

MR SHER: If the Court rejects the interveners and the appellant's argument in relation to free access to the Internet, it would undoubtedly be advantageous to the plaintiff in this case, but it is not necessary to the decision - that is simply the point we make - because this is a subscription service in respect of which all the names and addresses of the subscribers was known to the publisher. It will not have a chilling effect, is what we say. But that is the short point. There is a more substantial point which has only arisen as a result of information we received late yesterday afternoon.

I would like to ask your Honours, if you would, to look at a document that we have had distributed this morning which is a document that was picked up on the Internet by researches that my junior undertook late yesterday afternoon when we received certain information. Do your Honours have the document headed, "AAN Joins Amici in Tribune Co Case"?

GLEESON CJ: Yes.

KIRBY J: You got this through the advantages of the Internet?

MR SHER: Certainly, your Honour, and I will tell your Honours exactly what happened - perhaps not now but later - and your Honours will be surprised and probably amazed. In short, what we discovered yesterday afternoon was that six of the interveners and the appellant are in fact participating in an American case in which the same point arises and which will be heard by the Federal Court of Appeals Fourth Circuit Court next Monday in Virginia.

We have actually now obtained through the assistance of my learned friend, Mr Walker, actually a copy of the first instance decision which I also hope has been distributed to your Honours. It is the case of - - -

GLEESON CJ: Is that the case of Young?

MR SHER: Young v Newhaven Advocate.

GLEESON CJ: We knew about that.

MR SHER: Very well. Your Honours, our point - - -

KIRBY J: Is that not rather against you, because it indicates that this issue is an issue that is arising in the United States, Australian and no doubt French and other courts and the more we are assisted to come to a conclusion that is informed, the better.

MR SHER: The advantage your Honours will have of hearing Mr Walker is undoubted but the point we make simply is that the appellants, and we would assume the interveners, are making the point that US courts do not follow overseas authority because it does not pay any regard to the freedom of speech requirements of the First Amendment. Indeed, in the cases cited by the appellants in note 36 on page 11 of their submissions they refer to two cases, one of which is the decision in Telnikoff v Matusevitch where it is made clear that American courts basically will not follow British, and we would therefore say, Australian authority. The persuasive effect, therefore, of any decision of this Court on this topic in America is likely to be virtually nil.

KIRBY J: You make that point in your submissions. You say this is part of an American hegemony in the law.

MR SHER: That is so.

KIRBY J: That is a good point but we are surely entitled to hear the other point of view and especially because there is litigation on, apparently, a very similar question before United States courts about which the intervener would be able to help us.

MR SHER: It is the identical question and our point simply is that the interveners are having their day in an American court next Monday and there is therefore no need for most of them - there are I think three exceptions only - to have their day here. That is simply our point, your Honours.

GLEESON CJ: By majority you have that leave, Mr Walker. Yes, Mr Robertson.

MR ROBERTSON: If your Honours please, we have agreed time between us, if it is convenient to the Court. Mr Walker and I will detain your Honours until 12.15. Mr Sher will have half an hour before lunch and an hour and a half after, and I will reply in the last half hour.

GLEESON CJ: Yes, thank you, Mr Robertson.

MR ROBERTSON: Your Honours, the words which are the subject of this action comprise a few paragraphs in a long article entitled "Unholy Gains". It appears many times, I am afraid, in the appeal bundle. At page 63 you will find it in numbered paragraphs. The paragraphs of which complaint is made are essentially paragraphs 31 to 36, in the middle of that article. That is the Internet article that was obtained online. It was first published in the appellant's business journal, Barron's, on Saturday, 28 October - - -

KIRBY J: Just before you go into the article. I saw that an application was made before Justice Hedigan, and I think allowed, to enlarge the statement of claim to permit the plaintiff to rely upon the actual publication of the newspapers in Victoria. Now, in your written submissions you seem to, as it were, bypass that and say the only tort is by virtue of the Internet publication, at 57.

MR ROBERTSON: Yes.

KIRBY J: What is the position now? Is the plaintiff relying both on the Internet publication and on the newspaper publication, because they may present different questions?

MR ROBERTSON: They do and the judge in his decision put to one side the few publications - I think there were five - that had come in, albeit not via Dow Jones, that were proven that the plaintiff was suing upon and he said, in effect, "My decision on the Internet point settles the question, in substance, in the case". But I think the plaintiff is still pursuing those few print publications.

KIRBY J: Is not that an alternative foundation for jurisdiction, whatever may be the forum non conveniens question or the force of - - -

MR ROBERTSON: Yes, it is, but we were only served with the process relating to the Internet. At page 3 your Honour will see the statement of claim which refers to the - the writ is at page 1 and the statement of claim is at page 3 and the service of process related only to the Internet publication, as your Honour sees at page 3, at paragraph 3 of the statement of claim:

the defendant published or caused to be published in Victoria by means of the internet and in permanent form an article entitled, "Unholy Gains" - - -

KIRBY J: I do not have a notice of contention in my appeal book. Is there no notice of contention, as it were, seeking to support jurisdiction on the basis of the newspaper publications within the jurisdiction?

MR ROBERTSON: No.

KIRBY J: So, we can ignore it, subject to anything Mr Sher says?

MR ROBERTSON: Yes, subject to what he said, our position is that this appeal relates only to the Internet publication and concerns the place and, indeed, the place of commission of the Internet tort. Your Honours, the print publication is found in the fourth bundle, that is, the print journal that went on sale in America on 28 October. Shortly after it went on sale on that Saturday, the contents were placed on the appellant's website which is wsj.com, comprising six servers located at its business establishment in New Jersey. The article was written, researched and edited at Liberty Street in New York and was then piped, as it were, across the Hudson to the servers which are located in the business establishment across the Hudson in New Jersey.

Your Honours, at page 77 your Honours will see the letter before action that came from the plaintiff's American New York and New Jersey lawyers on 30 October, on the Monday. At page 77 they complain about allegations made in the entire article, not the allegations that they finally sued upon, and in the second paragraph in the second sentence:

The world-wide dissemination of these accusations substantially increases the damage to Mr Gutnick, and increases your responsibility under the laws of many nations.

The appellant does not, of course, deny its increased responsibility in damages for world-wide publication if these allegations cannot be justified, but it contends that the justification should be decided by the law of the one nation by which its business operated under which the article was prepared and put up on the Internet which was the act which gave the plaintiff, in substance, his cause of complaint.

GUMMOW J: You mean laws of one State, do you not?

MR ROBERTSON: I am sorry.

GUMMOW J: You said nation; you mean State?

MR ROBERTSON: Yes.

GLEESON CJ: What was the nature of the appellant's business?

MR ROBERTSON: The appellant's business is to publish information.

GLEESON CJ: To communicate information.

MR ROBERTSON: To communicate information, yes.

HAYNE J: And which State do you say is the relevant State?

MR ROBERTSON: New Jersey, because that was the State where, in this case, the appellant had its main Internet business operation. That was where its six servers were located.

HAYNE J: Thus the fact that it was, as you said, researched, written and edited in New York is irrelevant.

MR ROBERTSON: No, it is relevant. In this case the appellant is prepared to be tried in either State. There is very little difference in their laws. There is this unusual bifurcation of function. We say that the act which gave the plaintiff his cause of complaint, the critical act of the defendant, was the uploading and that occurred where a business establishment was in place in New Jersey.

KIRBY J: Am I misremembering it, when a subscriber clicks on, do they not agree to be bound by the law of New York?

MR ROBERTSON: They do, by a US law, and the contract that they make with Dow Jones is notionally placed in New York.

KIRBY J: I just do not quite understand how New Jersey gets into it. It is written, it is researched, it is investigated and the law that, by clicking on, a subscriber in the United States or Australia, for whatever effect that has, agrees to be bound by as the law in New York and you say, as it were, piped. I do not understand that.

MR ROBERTSON: The evidence of Mr Sichler at page 30 explains what the - and there is a diagram, I am reminded, at 33. Perhaps if your Honours would look at the diagram at 33. One sees the way it goes. The routers that take it from New York to the harbour-side in New Jersey and then to South Brunswick and then it is put up on the web servers at South Brunswick. In effect, the laws are the same. The States are contiguous. The operation has a foot in both camps. The appellant is prepared to be dealt with under either New York or New Jersey law. New York law would be appropriate certainly for the print publication, if that were to be part of the action.

KIRBY J: In the United States they do not have a national common law. Would the law of a court in New Jersey have to apply the law of New York, having regard to the agreement of the parties to be bound by that law?

MR ROBERTSON: Certainly if there was a suit on the contract between a subscriber and Dow Jones, my understanding is that would be the case.

KIRBY J: This may be a minor matter. I just did not quite understand why New Jersey got in on the act.

MR ROBERTSON: Your Honour, because the six servers are located there at what is called a corporate campus. Mr Sichler describes it in his affidavit at page - - -

HAYNE J: Page 30, paragraph 4.

MR ROBERTSON: I am obliged. Yes:

I am one of approximately 1,500 Dow Jones employees who work at the South Brunswick campus where many of the company's financial, accounting and information technology staff also work.

There is also a printing plant on that site. Your Honours, the letter before action was answered by the appellant's counsel at page 136 - it was answered the next day - who pointed out that the allegations had been put to the plaintiff before publication, offered to correct any false statement that had been made and to publish any proffered reply, but a few weeks later the plaintiff chose to sue in Victoria and your Honours have seen the writ at page 1 and the statement of claim at page 3 issued out of the Victorian Supreme Court.

That process was served on Dow Jones in the United States under the two limbs of the Supreme Court Rules, and those rules are, as your Honours see from the writ at page 1, they take long-arm jurisdiction where the action "is founded on a tort committed within Victoria" or in (j), that damage was suffered within Victoria from, we say, a foreign tort. The claim was confined to an allegation of damage suffered by a Victorian tort. That is made clear by the statement of claim, paragraph 3, at page 3. One notices at 7(d) on page 5 - this is the claim for punitive damages - that the plaintiff in this case alleges at (d) that:

The defendant published the words without any honest belief in the truth . . . recklessly, not caring whether the imputations were true or false.

That we just note at this stage to say that the allegation being made in Victoria parallels the allegation of actual malice that is required in America under the Sullivan test.

Your Honours, at page 10 you see that the appellant entered a conditional appearance and sought to set aside the process - that is at page 13 - or to stay the action under rule 8.09 and the stay, or the setting aside, were on the grounds made available by rule 7.05(2)(a) namely, that service was that authorised because it was a foreign tort and (b) that Victoria was, as the rule says, "not a convenient forum".

KIRBY J: Just pausing, you say the plaintiff has not really prosecuted a claim under (j) which in a sense is an easier head for it to rely on? It is long-arm jurisdiction copied from the United States which says, "It is enough, if there is damage, wherever the tort occurs."

MR ROBERTSON: Indeed. We would have no - - -

KIRBY J: So are we not concerned with (j), in your submission?

MR ROBERTSON: Your Honours are concerned with (j) in the sense that we would not have any contention about being brought in under (j) because quite clearly the damage has been suffered in Victoria from what we say is a foreign tort.

KIRBY J: But that would be enough for (j), would it not?

MR ROBERTSON: It would.

KIRBY J: So that would cure the jurisdiction question?

MR ROBERTSON: The plaintiff in this case frames his action as a local tort. He does not contend that - - -

KIRBY J: There is no notice of contention supporting it on that basis, although that was stated in the writ?

MR ROBERTSON: In the statement of claim, it is quite clear that he frames his action as a Victorian tort. Your Honours, we contended that the place of the commission of the tort, for both the purposes of jurisdiction under (i) and choice of law, was New Jersey. Your Honours, the essential facts that enable the characterisation in respect to jurisdiction and a choice of law, are firstly, the fact that this was a site on the World Wide Web.

His Honour, at one or two points in his judgment, says this was not a World Wide Web site. In fact it was. It was a subscription web site, the largest in the world with some 535,000 paid subscribers - and that appears at page 30 - but it could also be accessed free of charge by anyone who wished to by going through a process known as a trial subscription. All they would do was to give a user name, which may not be their real name and an address, which may not of course be their real address, and they would get through to this site within a matter of minutes. That was done by Mr Hammond, the expert whose evidence is at page 150.

There were over a million pages available on that wsj.com site. So that was the first fact about the web site. So far as Victoria was concerned, it was admitted that there were several hundred subscribers to wsj.com in Victoria, including prominent business persons, some of whom it could be inferred, accessed or downloaded the article.

So far as the parties are concerned, the plaintiff, of course, is a prominent Victorian with business, sporting and philanthropic interests in Victoria, but he also has very important connections with the United States. He is chairman of an American public company whose shares are publicly traded on the United States Exchange, and he had for many years, actively solicited American investments in his Australian companies through - his Australian companies sold interests to US investors through what are called ADRs - American Depository Receipts - which are share equivalents. So his Australian company shares were being publicly traded in the United States.

He had been on what were called, "road shows" in America, to urge American investors to buy them, and he had announced before publication - and it is mentioned in the opening paragraph - that he was moving half his business to the United States to take advantage of the strength of the US dollar, in effect to make money in the US from Americans. So he had those important American connections. So far as the appellant is concerned, it has no place of business in Victoria.

KIRBY J: That is challenged, is it not? The respondent says that was never proved, it is simply a matter on which there is no evidence.

MR ROBERTSON: It was something that the judge accepted and, of course, we would have been served in Victoria, if there was a place of business there, but it was said there was no corporate presence and there was no challenge to the fact that we had no place of business in Victoria. The article itself was researched, written and edited in New York and the business administration, as I have said, was at the corporate campus in New Jersey where the web servers were.

There was no challenge to our position that Dow Jones had taken no action in Victoria to advertise or promote "Barron's Online" or the article itself. What it had done and what the plaintiff relies upon is the fact that it had accepted several hundred subscribers from Victoria over the years since 1977 when the wsj.com started under agreements that were governed by US law. That is at page 312 in volume 2. Your Honours will see the subscriber agreement which is an agreement which is accepted by a click whether you are a subscriber or trial subscriber. After the disclaimers and warranties at the top of page 314 - - -

KIRBY J: I wonder how many subscribers actually read all this?

MR ROBERTSON: It is there for them to read on their PCs and they may notice that at the top of page 314, two lines down:

This Agreement, your rights and obligations, and all actions contemplated by this agreement shall be governed by the laws of the United States of America and New York State, as if the Agreement was a contract wholly entered into and wholly performed within New York State.

So that, in effect, what the accessor in Victoria is doing by sending his request messages to obtain pages that are on the web site is obtaining - the pages are obtained by way of performance of this agreement which is governed and entered into in New York.

HAYNE J: What consequence do you say follows from that fact for this litigation?

MR ROBERTSON: There is no privity, obviously, between the plaintiff and Dow Jones, in that respect, although, presumably, he obtained his copy via this agreement. However, we say that the relevance is to show yet another foreign connection with New York, New Jersey, with US law, which makes it unrealistic to characterise these downloadings as local torts that, for the substance test, looking back at the defendant's acts, this is one of the circumstances that one takes into account, but access to the web site was pursuant to a contract made in New York.

HAYNE J: What is the consequence that you attach to characterising, or failing to characterise, the tort as a local tort?

MR ROBERTSON: The consequence is that Dow Jones is brought in under (j) rather than (i), that it is brought in with, as it were, its American law because that is the law of the place of the commission of the tort, and that in so far as the forum question is concerned, that is decided in the discretion of the trial court bearing in mind or giving weight to the factor that the lex loci delicti is US law.

HAYNE J: These are consequences that you identify as being relevant to the inquiry about forum non conveniens.

MR ROBERTSON: Yes.

HAYNE J: They are not, as I would understand your submission, consequences that you say go to - rather, they proceed from an identification of the governing law of the action.

MR ROBERTSON: They are circumstances which are relevant to the identification of the governing law, because if the test for identifying the governing law in a multi-State defamation is the test which we say is mandated by Voth, namely you look back on all the events and all the circumstances that led to the downloading of the publication and you see where the critical acts of the defendants occur. That is the place of the commission of the tort. One of the factors to be taken into account when one is looking at the acts of the defendant is that the defendant made this web site and its material available to Victorians pursuant to a contract that they entered into in New York.

GLEESON CJ: Is that quite right? What are the provisions of the contract that impose any obligations on Dow Jones? I just have not been able to pick them up at the moment.

MR ROBERTSON: Your Honour, the obligation on Dow Jones is to supply the electronic data.

GLEESON CJ: Whereabouts is that?

MR ROBERTSON: I think it is assumed on page 313 under "COPYRIGHT AND LIMITATIONS ON USE" and the second sentence:

The content available through WSJ.com is the property of Dow Jones -

You may disseminate it. Then it describes what the web site contains, wsj, includes facts. In the previous page, halfway down under "FEES AND PAYMENTS":

Your subscription will continue and renew automatically - - -

GLEESON CJ: Just at the moment I cannot find any express terms in this agreement that bind Dow Jones to do anything. Any obligations of Dow Jones seem to be implied.

MR ROBERTSON: Your Honour, they certainly are implied. Whether we can pick up a specific reference, can I return to that in my reply.

GLEESON CJ: Yes.

MR ROBERTSON: We would say that the whole tenor of the agreement is that the access to the web site shall be provided. So Dow Jones, in return for the $59 of the actual subscriber, makes the web site available to him or her.

GUMMOW J: You may get something from line 50 on 313.

MR ROBERTSON: I am obliged.

Dow Jones may discontinue . . . and you may always terminate your subscription at any time.

GLEESON CJ: It just occurred to me that if we could find an expression of what Dow Jones agrees to do, it might help characterise its conduct.

MR ROBERTSON: Your Honour, I am obliged and I will return to that, if I may, when we look more closely at the subscription agreement.

CALLINAN J: Mr Robertson, Voth says nothing about misrepresentation cases or defamation cases.

MR ROBERTSON: Your Honour, I will show your Honours Voth, if I may, in a short time but our submission is that the rule that it applies, the substance test, is appropriate for multi-State defamation, although Voth itself is not a defamation case.

CALLINAN J: No, I know. I think I adverted, perhaps in a dissenting judgment, to different sorts of situations from Voth which arise in relation to misrepresentation and defamation.

MR ROBERTSON: Yes. It is your Honour's judgment in Hyde v Agar that we actually rely upon. I think it is paragraph 116 where your Honour draws attention to the importance of looking not at the consequences but at the critical acts of the defendant.

CALLINAN J: Yes, but I think in that later case - and again I emphasise it was a dissenting judgment, but I do not think the dissent has anything to do with this issue, where I do draw a distinction between misrepresentation and defamation.

MR ROBERTSON: Is that Pfeiffer?

CALLINAN J: I think that is in Regie, is it not - Renault?

MR ROBERTSON: In Zhang, yes, if I may come to Zhang again shortly. Your Honour may be thinking of paragraph 116 in Agar v Hyde.

Your Honour, so far as the United States law is concerned, the judge had before him an affidavit from an expert in US defamation law, Laura Handman - that is in bundle 2 at page 317 - and that identified as a matter of substantive law the distinctions between Victorian defamation law and United States defamation law which were the subject of analysis and comment in this Court in the case of Theophanous. Essentially, the juridical advantages to the speaker under US law is that the plaintiff bears the burden of proving falsity and that liability is dependent upon proving fault to a lower standard of negligence if the plaintiff is not a public figure. Those are constitutional rights in the United States which American publishers have by virtue of their First Amendment. They are precious in the sense that Justice Harlan quoted in Sullivan, described them as maybe folly to others, but on this we have staked our all.

Every advanced country will or seems to treat aspects of speech as precious in the sense this Court has given a limited immunity to speakers on political and governmental matters subject to a fault test that is based on reasonableness. In Britain now there is, thanks to the courts in the Reynolds Case, a much wider privilege to speak subject to reasonableness on matters of public interest and importance. New Zealand too, in Lange v Atkinson, has provided a slightly different test, but the point that we make - - -

KIRBY J: They refused to follow Reynolds, did they?

MR ROBERTSON: They did. They adopted a much firmer test or privilege in relation to governmental - political matters, political speech.

KIRBY J: So as far as I know, we have not had an argument in this Court about Reynolds. It is mentioned in the written submissions but I do not know whether or not it looms in any way - - -

MR ROBERTSON: There is a recent decision in the New South Wales Court of Appeal which refuses to follow Reynolds on the basis that Reynolds was decided pursuant to the European Convention of Human Rights which became adopted by the United Kingdom. It came into force in October 2000. We would question that argument on the basis that the Court of Appeal decision in Reynolds made clear that it was developing the wider public interest privilege from the antecedents of the common law in Toogood v Spyring and the early cases which were simply generalised to cover print publication to the public rather than to individuals.

KIRBY J: Is this an issue which would arise later if you are, as it were, fixed in this jurisdiction?

MR ROBERTSON: Absolutely.

KIRBY J: Then the question of what the law and whether there is a larger - qualified privilege would arise, but is it relevant at the stages of governing law or forum non conveniens, or not?

MR ROBERTSON: I only mention it for this reason, your Honour, that these advanced common law countries treat aspects of speech as special, as privileged. They do it in different ways so as to strike the balance between the right to reputation and the right to free speech. What we say is important as a matter of comity is that in selecting an appropriate "choice of law" rule the Court should respect the fact that other countries give rights to their citizens and that publishers in those countries work and publish and put the products of their work up on the web for their own citizens but, of course, inevitably for others and that a "choice of law" rule should recognise and respect the fact that the substantive law by which the publishers work is prima facie appropriate to judge whether their work is at fault.

GUMMOW J: You use the word "choice" and you have used the phrase "choice of law rule", that is not apt, is it? We are not talking about a "choice of law" rule, are we?

MR ROBERTSON: In this context we are talking about private international law and where the place of the - - -

GUMMOW J: We are talking about jurisdiction which is quite distinct from choice of law, surely?

MR ROBERTSON: Your Honour, the first issue is jurisdiction.

GUMMOW J: Yes.

MR ROBERTSON: The second issue is choice of law and as - - -

GUMMOW J: The "choice of law" rules are settled.

MR ROBERTSON: The rule may be settled. The question of its application in this case is distinct. As your Honour pointed out in David Syme v Grey, there is no necessary connection between the jurisdictional issue of where was the tort committed and the "choice of law" issue, the lex loci delicti issue because there has to be one and only one place of commission of the tort and so there may be a distinct - in a sense, one may be applying two separate tests, one to jurisdiction, one to choice of law, but as his Honour Justice Kirby pointed out at paragraph, I think it is [101] in Zhang, the same issue may present under both jurisdiction and choice of law, namely, where is this Internet tort committed.

Your Honours, finally on the facts, the Internet and the web was explained by expert evidence of Mr Hammond which is at page 150, and Mr Clarke which is at page 174 and at page 328. We say, in a nutshell, that that evidence establishes that the web is a means of communication unlike any other for three reasons. Firstly, it abolishes territorial boundaries in that speech placed on the web is almost instantaneously accessible from every jurisdiction in the world. Secondly, it is directionless. The publisher does not send information to a particular place; does not know with any confidence where the requests for access are coming; access is obtained by "get" messages or request messages sent from the PC user whose physical location is unknowable and those messages are sent to the server at the server's physical location and operate electronically by pulling a copy of the requested page from the server. Every other form of communication has a direction, even notices put up on the club noticeboard are directed to members of the club, but - - -

KIRBY J: The respondent in his submissions suggests that that is an overly naïve view. The respondent was physically present in Victoria. He had most of his interests in Victoria, he would have had most of his friends to whom his reputation was precious in Victoria, that you would have known that he was in Victoria and that, therefore, if you put it on the web in respect of a real live human person, when that person is in another jurisdiction, you have to expect that it will become potentially inflamed in that particular jurisdiction and that that is something that a person like you just has to take into account.

MR ROBERTSON: A respondent in this case, of course, was very much in America, was active in America, and that was why he had attracted the attention of this American financial magazine. But so far as dealing with the distinctions between the Internet and other forms of communications, a question why is it different to CNN, is that it is directionless because nothing is beamed, there is no path of it and, thirdly, a web publication cannot be effectively controlled, unlike any previous form of publication.

McHUGH J: What do you mean it cannot be effectively controlled? Why cannot your client use a software screening program which scans messages for certain key words such as "Victoria" and then directs that the message be reviewed according to some protocol or by some other person?

MR ROBERTSON: Your Honour, we can do three things. Dow Jones could refuse to accept subscriptions that appear to come from Victoria, but names and addresses are not key because nothing is sent to an address in Victoria. So that will not limit the web site. Victorians who wish to subscribe will simply give addresses in New South Wales and will still access the web, so refusing - - -

KIRBY J: In that case, when you receive the subscription may not be contemplating your article about somebody in Azerbaijan.

MR ROBERTSON: Of course. That is the second stage I think Justice McHugh was putting to me, the concept of the electronic barrier, the firewall. That will certainly block some access, but the firewall is very easy to get around simply by a telephone call.

McHUGH J: I hope not. This Court has one.

MR ROBERTSON: It is a security firewall, I am told. But the firewall is simple to get around in the sense that one simply dials an ISP in New York and gets the article that way. The firewall has other problems because if you put a firewall round an article - - -

McHUGH J: There is no need to spend any time on this point.

MR ROBERTSON: - - - you identify it and it has the spy catcher effect that everyone wants to see it. But whether we are talking about subscription denials to Victorians or firewalls that make it more difficult for Australians to access, we are, with respect, inviting or encouraging a policy that cannot be in the interest of Australians in blocking them from obtaining valuable information for their businesses that is available presumably on the site.

HAYNE J: The fundamental tension in your case is this, is it not, that the web abolishes territorial boundary, you say contains no direction, is difficult if not impossible of control, and you respond to the consequent breadth of dissemination by a universal rule of singular location, that is, you respond to breadth by singularity?

MR ROBERTSON: Yes.

HAYNE J: Why should you? Why should you respond to breadth by narrowness? That is the fundamental tension in your case, is it not?

MR ROBERTSON: We respond to that by saying that the only way in which we can avoid liability which may be very unfair, because we have prepared the article so it is fireproof by American law and suddenly we find there is a law of some place in the world that will hit us with punitive damages because we - - -

HAYNE J: That is to say, it is a rule of convenience to the publisher.

MR ROBERTSON: No, it is a rule - - -

HAYNE J: That is the only justification thus far advanced, Mr Robertson.

MR ROBERTSON: Let me try and advance another. It is a rule of convenience but it is a rule of importance to the public because the only way the web owner can avoid liability is not to put the material on the web at all, to confine publication of the material to the jurisdiction in which it is justifiable. The jurisdiction by which it is written, researched and so forth is the jurisdiction where the publisher ensures that by that jurisdiction's laws he is safe from suit.

It must be in the interests, first of all of comity, of giving effect to the right of sovereign States to protect their speakers within those States and it must be in the interests of the Australian public, and indeed the social utility, of this particular form of instantaneous communication to have a rule which does not deter foreign publishers from putting information on their web sites.

GLEESON CJ: Mr Robertson, suppose the danger against which a publisher was seeking to protect itself was not defamation but terrorism. Could it respond to that by uploading information in two places?

MR ROBERTSON: The terrorism being the - - -

GLEESON CJ: Destruction of a campus.

MR ROBERTSON: Yes.

GLEESON CJ: Might somebody in a business such as your client respond to a problem like that by uploading the same information at New Jersey and India?

MR ROBERTSON: Yes, indeed, having a backup site.

GLEESON CJ: Yes.

MR ROBERTSON: The substance test, we say, would get to the heart of the matter where the editorial decisions are made, where the principal establishment is, where the place where the decision has been taken to upload. This is, if you like, the attraction of applying the substance test. As Dicey and Morris says, it does weed out - I mean, the plaintiffs take another example of the unscrupulous publisher who sets up in the defamation haven in Liberia. Again, the substance test gets to where the critical decision which has given the plaintiff his cause to complain is made. It is not the Cook Islands defamation-free law that the publisher is going to be able to survive by. It is, by application of the substance test, where that publisher is effectively located and where the critical decision was taken that gives the plaintiff his cause of complaint.

GAUDRON J: But what is that critical decision that will lead you to the substance?

MR ROBERTSON: The decision to publish and put - - -

GLEESON CJ: Was that made in New York or New Jersey?

MR ROBERTSON: The decision to publish is probably made in New York but the actual placing on the web is made in New Jersey.

GLEESON CJ: Why does the substance test lead you to New Jersey rather than New York?

MR ROBERTSON: Your Honour, simply because there is an establishment in New Jersey which services the web site. The business and administration is conducted there. It may be - and I do not shrink from the fact - that this is one of those, we say, few cases where there may be a difficulty. It is a difficulty that does not - because there is no difference, in effect, between the law of New Jersey and the law of New York, it is not a - and the respondent is prepared to deal with the case in either jurisdiction but I accept - - -

GLEESON CJ: Yes, but we are not in a state of negotiation with the respondent or with the appellant.

MR ROBERTSON: No.

GLEESON CJ: The difficulty of demonstrating why it should be New Jersey rather than New York, in the present case, illustrates that the substance test itself is far from clear, does it not?

MR ROBERTSON: It demonstrates that there may be difficult decisions, and your Honours say that in Zhang and in Pfeiffer, that there may be close calls. Here we accept and have always argued that the place of the print publication is New York and the place of the web publication, because of the 1,500 employees and the business set-up there, the web business set-up, is New Jersey. Usually, there will be no difficulty in the substance test because the place of the - and I think this appears, if one looks at the interveners and where they have their web sites, there is no difficulty in the case of most of the interveners in identifying the place where the critical decision is made.

McHUGH J: How does this theory operate in a "passing off" case, where the reputation for goods is only in a particular jurisdiction? Supposing Time magazine has no reputation in Liberia and I set up a web site there, and I purport to publish publications by Time magazine which can be uplifted in Victoria. Now, Time has no reputation, on the hypothesis, in Liberia, so there is no cause of action for passing off, even though all the damage is done to it in Victoria.

MR ROBERTSON: It depends where "you" are. If "you" the proprietor and perpetrator of this fraudulent web site are located in Victoria then there would seem to be no difficulty in suing you in Victoria.

McHUGH J: No, but your theory - the damage in a "passing off" action is done where the reputation for the goods are.

MR ROBERTSON: Yes.

McHUGH J: And that does not necessarily coincide with the place where the decision to publish is made, and on your theory of the case it would seem that in many situations you may have no cause of action at all, even though you suffer damage.

MR ROBERTSON: Your Honour, it may be that the "passing off" rule would involve a search for a different place, but if Time magazine has no reputation in Liberia, the web site is in Liberia and the proprietor of the web site is in Liberia, then it has no cause of action in Liberia, that would follow, but it may, if the proprietor of the web site has a presence in another country or promotes the web site in another country, it might be difficult to see why Time magazine should be concerned unless the mock Time and its web site were actively promoted by the publisher going to Victoria and placing advertisements in Victoria and papers and so forth, and that would entail liability in Victoria, on my theory, which makes express allowance for cases where the publisher has turned its back on the protections of its local law and has entered the plaintiff's jurisdiction in order to promote or advertise its web site and so instigate downloadings.

If that were the case, as it was in a sense in Distillers where the failure had been the sending of information which did not include a warning to New South Wales, if that were the case, then the act of which the plaintiff complains would be the defendant's act in Victoria in instigating the downloadings and looking at it from as it were the State interest comity position that we set out in our case, the publisher would waive or abandon the protections of the law under which he operates by virtue of the fact that he had gone abroad and was active in the plaintiff's State, or any State in which the plaintiff had a reputation.

GAUDRON J: But comity surely, Mr Robertson, cannot just be restricted to the countries whose legal systems we respect, Now, it is quite conceivable that people can put on the Internet material which on being released in one of the countries whose legal systems we respect, is criminal by the laws of that country. A terrorist in Azerbaijan or like place may do the equivalent of calling fire on the Internet in Azerbaijan. We have to give them comity too.

MR ROBERTSON: Criminality is territorial, at criminal jurisdiction.

GAUDRON J: Exactly. Although the law of conspiracy has extended that somewhat.

MR ROBERTSON: But the Azerbaijan web site that - - -

GAUDRON J: We will say Azerbaijan - it could be anywhere - says "There will be a further bombing in New York tomorrow at 10 am American time" which causes panic in New York.

MR ROBERTSON: Yes.

GAUDRON J: It is intended to have its consequences in New York, it has its consequences in New York, and it is put on the web site elsewhere.

MR ROBERTSON: If your Honour is postulating the Azerbaijan web site that, by putting up false, albeit not defamatory, in the circumstances, information, creates panic and injury in New York and a damages claim is brought in New York against the proprietor of the Azerbaijan web site who is in New York.

GAUDRON J: No, who is not in New York.

GUMMOW J: That is the problem for you.

MR ROBERTSON: Seeks to bring in to New York - - -

GAUDRON J: Well, ceases to have a writ ready to serve the minute that man does arrive in New York, or woman arrives in New York. I mean, there is potential at least, is there not, for vast economic damage to be perpetrated on the Internet?

MR ROBERTSON: Yes.

GAUDRON J: And one may assume that there are people who would like to cause such damage in developed countries like the country in which the appellant carries on business.

MR ROBERTSON: Yes.

GAUDRON J: Well, how do we look to the substance then?

MR ROBERTSON: Well, the same test applies. Civil liability depends on the intention to cause damage in the jurisdiction. The example that your Honour gives will be met by application of the substance test and by finding by which law the - - -

GAUDRON J: Well, that brings you to the question: what is it that determines substance? I should not have thought it was simply where decisions are made, whether they be in the realm of defamation or deliberate intention to cause economic harm or conspiracy to cause economic harm.

MR ROBERTSON: If made with the intention to cause injury in New York, that obviously is a factor. It may be - - -

GAUDRON J: Well, now, here, it may be hard to impute intention, but what is the difference between intention and without regard to whether it causes harm to the reputation in Victoria?

MR ROBERTSON: There is a difference between intending to cause harm in Victoria and really not knowing whether harm is going to be caused or not knowing whether it is going to be caused in Victoria or America or whatever. The issue that the substance test looks to is the critical act of the defendant and it finds a location for that act - - -

GAUDRON J: Well, you keep talking about the critical act. What you seek to do, do you not, Mr Robertson, is get away from the elements of the tort?

MR ROBERTSON: Yes.

GAUDRON J: And why should we move away from the well-understood elements of the tort any more than we should from the well-understood elements of a crime, or what is involved in breach of contract or breach of confidence or the like?

MR ROBERTSON: Because, with respect, your Honour, the elements of the tort do not give other than an artificial answer. They do not give a realistic answer. The elements of the tort of defamation may merely be publication causing damage, but the actual action of defamation is very much affected by the defendant's acts. They are relevant in terms of a privilege defence. They are relevant in terms of malice. They are relevant in many respects in considering questions of - fair comment is another example where the defendant's act is relevant. We say that to look only at the - - -

GAUDRON J: Well, they are relevant to defences.

MR ROBERTSON: Yes.

GAUDRON J: It seems to me that your cause of action is one thing in this area; your defence is quite another. There may well be scope within the existing field of law for the elaboration of defences to take account of the development of Internet services, but why go to the cause of action as distinct from defences?

MR ROBERTSON: Your Honour, even looking at the cause of action in Victoria as the judge found comprised by the multiple publication in Victoria through different downloadings, it would be artificial, in our respectful submission, not to see the foreign element, the foreign origin, of the publication.

GAUDRON J: Exactly. So when it comes to notions of reasonableness, recklessness or the fairness of the comment, it may well be appropriate to have regard to the fact that it was reasonable by reference to the laws of the place where the publication is centred, if you like, but that is a different issue from what you contend for, it seems to me, Mr Robertson.

MR ROBERTSON: With respect, we contend for that position and the only way we can reach that position is by having the choice of law as US law, because otherwise - - -

GAUDRON J: You say that is the only way. I am putting to you that there are other ways. You are suggesting you could only get that by forum and/or by - - -

MR ROBERTSON: Choice of law.

GAUDRON J: Well, location of the tort in a way which will give you a law of that kind. I do not see that that is right. It may well be that the law of defamation does have to develop to take account of these developments and it might be that it develops through notions of reasonableness having regard to the place of uploading or to the laws of the place of uploading, but it does not seem to me that picking location of the tort is the only way to take account of the development of the Internet.

MR ROBERTSON: It may not be the only way if local law were to develop, but if I can just give your Honour an example - - -

GAUDRON J: Your argument would stultify local law though, would it not, at the inception? Any development would be stillborn.

MR ROBERTSON: It may be that requiring Victorian courts to apply American law rather than stultifying it may assist its development.

GAUDRON J: No, I did not say apply American law.

KIRBY J: That is a very American viewpoint which is not shared by the rest of the world. The whole rest of the world does not share. It has to be very clear. The international covenant on civil and political rights does not share the American, as others see it, obsession with free speech. There are countervailing human rights, including reputation and privacy.

MR ROBERTSON: We accept that entirely. If I could give a practical example that emerges from this case: every balance of free speech and reputation by a court has an effect in the newsroom. Under American law the result of Sullivan has been that investigative journalists put all their allegations to a potential public figure plaintiff before they publish. One can see that in operation in the questions that the respondent was asked at pages 138 to 140. This is the result of the Sullivan test but, to avoid a finding of express malice and the colossal damages that are their result, the American investigative journalist has to put the questions precisely to the person he is about to publish. If that individual then responds saying, "You're barking up the wrong tree; this is false", then if he goes ahead and takes the risk of publishing, the risk of colossal damages results.

This is not something that under Victorian law resounds at all but it is what one might call a form of reasonable approach or professional practice that follows from the local defamation law.

Coming back to your Honour Justice Gaudron, that is the way the American journalist has operated professionally to obtain the protection of American law, but that does not - - -

GAUDRON J: What protection do you say you are obtaining? You are getting the benefit of a defence?

MR ROBERTSON: Yes.

GAUDRON J: I see no reason why it would not be possible to argue in Australia we did it this way because that is how it is done in New York, or what have you, and we believed that was the proper way to act and the responsible way to act, having regard to our laws. I have no reason - why it could not be held as a matter of fact in this country that to so act was reasonable.

MR ROBERTSON: That would be the case were Victorian law to accept a form of Reynolds privilege, but at the moment - - -

GAUDRON J: Not entirely. Reasonableness, ultimately, is a question of fact, is it not - - -

MR ROBERTSON: Yes.

GAUDRON J: - - - in the United States as much as in Australia?

MR ROBERTSON: Yes, but unless we can bring ourselves within Lange qualified privilege here - and the argument vehemently made against it is we cannot because we were not writing about a government or political matter - then the issue of reasonableness does not figure in a defence because the common law defamation is a tort of strict liability.

GLEESON CJ: Mr Robertson, the rule for which you contend is that which appears in the first sentence in paragraph 31 of your written submissions, is that right?

MR ROBERTSON: Your Honour, yes.

GLEESON CJ: That rule contains two qualifications which I would like to understand a little better. The first qualification is that the rule only applies assuming the place of uploading is "neither adventitious nor opportunistic".

MR ROBERTSON: Yes.

GLEESON CJ: What do you mean by "adventitious or opportunistic"?

MR ROBERTSON: Opportunistic is the tax haven example, the unscrupulous publisher, the spectre of whom is conjured up by the respondents, who sets up the server in a defamation-free zone. The substance test, we say, requires him, if he is going to Liberia, to put his editorial and administrative establishment there as well.

GLEESON CJ: Would the same kind of qualification apply in relation to the tort of passing off?

MR ROBERTSON: I would have thought so, without having - - -

GLEESON CJ: There are some intellectual property law free zones.

MR ROBERTSON: Yes, but again the substance test would require the establishment to be there, something other than a server. If I could show your Honours the way Dicey and Morris approached this point, it perhaps will bring out the arguments for and against. It is Dicey and Morris at page 1568 at 35-137. I think this is the most authoritative consideration of the point which has not arisen in the courts. It begins by admitting that:

the place of publication approach gives rise to practical difficulties in cases where defamatory material is disseminated through the internet, not least because of the potential number of countries in which access may be had to that material. Nonetheless; it has been maintained -

and it refers to other textbook writers -

that the tort is to be taken to have been committed in the country where the material is "downloaded" or retrieved.

And then gives the arguments that have been made for that:

defamation over the internet is not, perhaps, conceptually different from defamation by other media: rather it merely increases the number of countries where the offending material can be accessed -

and we say the Internet is different -

Secondly, the potential of the internet in this context is relatively well-known and those who make use of it in a manner which is likely to involve the law of defamation should bear the risk -

we say that result is to reduce the amount of information available on the Net -

Thirdly -

is an English-specific point and -

Fourthly, as pointed out above, the claimant is not compelled to rely on the law of every country where publication takes place, and is free to limit the claim to one such place if he or she so wishes.

That has, in effect, been done by the plaintiff in this case by limiting the claim to Victoria and, indeed, limiting the ambit of what is sued on.

On the other hand, localising a defamatory statement on the internet is somewhat unrealistic. It might therefore, be more appropriate to regard the place of commission in such cases, as the country in which, in the light of all the circumstances of the case, the substantial events which give rise to the claim have occurred.

CALLINAN J: I do not understand that, Mr Robertson. In the past "The Times" newspaper would have gone to every colony in Australia. It might have got there rather late, but it would have gone to every colony in Australia, every province in Canada, it would have gone throughout the whole of that part of the world which was coloured red. I do not see the Internet as introducing anything particularly novel, you just get it more quickly.

HAYNE J: Sometimes.

MR ROBERTSON: You get it more quickly, you get more of it because you can - - -

CALLINAN J: It just means it is more penetrating and it has a greater capacity to do harm.

KIRBY J: It can be searched with a particular name and thereby you can get a lot of material on a particular person which once would have been hidden in a vast mass of the hard copy.

MR ROBERTSON: Yes, the researcher's potential is remarkable, but the essential difference is "The Times" can be stopped, of course. The publisher controls which parts of the world coloured red he puts "The Times" in.

CALLINAN J: But there is a profit imperative in wide penetration anyway, is there not? The more your client's publication online can penetrate, then the more profit it is likely to make. Also, if in fact there is less access in a particular place to what goes online universally, as it were, then that goes to damages.

MR ROBERTSON: Yes.

CALLINAN J: If there are only 1,700 readers, then the jury or the judge will no doubt take that into account. I do not see any of the difficulties, frankly, or any of the particular novelty with which the current authors of Dicey and Morris seem to be concerned, not at the moment, anyway.

HAYNE J: The attribution of unreality which the authors make depends, does it not, upon the question that is asked? If you ask the question, "Where was it published?", that may be a difficult question in relation to the Internet. But if instead of asking, "Where was it published?", you asked, "Was it published here?", the answer is self-evident. Unreality depends entirely on what question you ask and does your question assume a singularity of answer which the former form, "Where was it published?", made.

MR ROBERTSON: The question, "Where was it published?", is in a way simply a threshold question by which law ought it to be judged because where punitive damages are claimed by use of a law that does not reflect the law under which the information has been produced and crafted, then the issue of injustice - I mean the central injustice that the publishers complain of here and it is an injustice that can be claimed by Australia web publishers hailed into court in Asia or, indeed, in America - is that they are being judged by a standard under law that they did not produce their articles by reference to.

HAYNE J: But that injustice, if that be the appropriate characterisation of the consequence, flows from rules about jurisdiction, flows about rules determining choice of law.

MR ROBERTSON: But those rules, we say, can be made to provide substantial justice by applying the "substance" test as set out in Voth to the reality of Internet publication, even if you say, "Well, there are 300 separate torts in Victoria". If you look back on where is the defendant's act that gives the plaintiff his cause for complaint, looking back in a commonsense way, as Voth says, you find that in America and not in Australia.

McHUGH J: But why?

HAYNE J: But the fundamental tenet of the common law is that jurisdiction is assumed as a result of service, not as a result f the subject matter of the suit. Rail against that or no, that is the fundamental tenet and once you have started down that path - - -

MR ROBERTSON: Sure. But, your Honour, the question of service decided by rule (i) is the question of where is the tort committed which is the same question as one has to ask on a "choice of law" inquiry. Now, if we are wrong, as far as the jurisdiction issue is concerned, it may be that a different answer is given when one turns to choice of law. It may be that the result which is appropriate is that the publisher, the foreign web publisher, is brought in from long-arm jurisdiction because of the individual torts here is - but is judged by the law by which he has, in effect, composed the publication and the forum issue which is there for the judge at the end of the day is, bearing in mind that the Victorian court will have to apply American law, is the Victorian court a clearly inappropriate place for the action.

KIRBY J: That is the third step, but do you see it, therefore, as three steps? First of all, to find whether jurisdiction attaches by virtue of the Victorian rules?

MR ROBERTSON: Yes.

KIRBY J: Secondly, if it does attach, to identify what law, once jurisdiction attaches, is applied in the jurisdiction, and, thirdly, once knowing that, to ask, with that in mind and other matters in mind, whether or not the jurisdiction is a convenient or a not inconvenient jurisdiction?

MR ROBERTSON: No, not inappropriate. Clearly, an appropriate jurisdiction.

McHUGH J: But your argument seems to concentrate on the "choice of law" aspects and cleverly seeks to avoid the policy implications of the tort of defamation because the basis of the law of defamation is the protection of reputation, not the protection of publishers. In a very real sense, the law of defamation is hostile to freedom of expression.

MR ROBERTSON: Yes.

McHUGH J: It makes certain exceptions but so far as defamation is concerned, it is concerned its concern was protecting the reputation of the person where the publication is read or received, not where it is sent from. It is sent in a foreign language, there is no defamation until somebody is capable of reading it, who understands that language. Take, in this country, there are a number of jurisdictions where truth alone is not a defence. Now, why should a State which requires truth and public benefit to be proved, why should its citizens whose reputation is damaged by publication on the Internet in that State not have the protection of that State?

MR ROBERTSON: Can I make my final address in answer to your Honour? Your Honour is absolutely right. Defamation as developed by the English courts was entirely concerned with reputation, and a very harsh law it was, too. We have taken the step of inviting your Honours to disapply the Duke of Brunswick's Case which is the foundation - we say a very insecure foundation - for the "multiple publication" rule and adopt the "global publication" rule.

We do so firstly because - and we cite the passage in Lange where your Honours accepted that defamation rule now has to strike an appropriate balance between reputation and free speech and we invite your Honours to do so because there is a very close parallel in the development of British defamation law to the evolution or the development that we ask your Honours to make. Your Honours will recall Emmens v Pottle and Vizetelly, how the harshness of defamation law was threatening the social utility of universal education that had developed in the 19^th century and you had subscription libraries and booksellers and the whole library business was at risk because of the harshness of the rule. In Emmens v Pottle and in Vizetelly and in those common law cases, what the courts did was to change the common law. They invested the defence of innocent dissemination.

McHUGH J: We dealt with it by statute for the most part.

MR ROBERTSON: Yes, but the English common law judges, in order to protect and preserve the value of education and information, saved the library service and saved book publishers from the onerous duty of employing lawyers to read every book that they put on sale - booksellers, yes, as secondary publishers. So we invite the Court in this case to make a similar - - -

GUMMOW J: Emmens v Pottle though, Mr Robertson, developed a defence, did it not?

MR ROBERTSON: It created, I think with respect, a defence.

GUMMOW J: Does that not bring into play what Justice Gaudron was putting to you? If you rely on Emmens v Pottle, that seems to me what flows from it.

MR ROBERTSON: The defence, we say, does not exist in Australian law at the moment and it does not exist in a number of other laws.

KIRBY J: Yes, but the law normally takes these things step by step unless it is done by legislation. Lange responded under the discipline of the Constitution of this country to a particular issue that was presented. Now a new issue has presented and, at least arguably, there may be a need to consider whether by analogy to Lange there is a need, for some of the same reasons, to develop a new principle, just as Lord Mansfield started the process of qualified privilege. But at least when we are asked to deal with a global problem, one would want to keep in mind what is happening elsewhere.

Now, I have a recollection that in France there was a question of publication on the Internet concerning Nazi memorabilia and the French applied their own law in that case. There must be analyses of these things in the law reviews as to how different countries - I mean, Dicey and Morris is not going to be the last word on this as far as I am concerned.

MR ROBERTSON: I think it is the first word, which is why - - -

KIRBY J: There would be a lot of other words since because there have been cases in many countries responding to the phenomenon of the Internet. But if courts are going to play a part, we at least have to try to do it in a way that is consistent.

MR ROBERTSON: Yes, your Honour, and that is why we have suggested that the appropriate step is to treat the Internet as a single publication as creating a global tort. Thank you, your Honours, my time has finished. I hand over to Mr Walker.

GLEESON CJ: Thank you, Mr Robertson. Yes, Mr Walker.

MR WALKER: Your Honours, I appear for a number of persons.

GUMMOW J: I thought you were going to say "God-fearing limited liability companies".

MR WALKER: It is the first epithet that I would not venture, your Honour.

CALLINAN J: Strongly driven by the profit imperative.

MR WALKER: Some of them exist solely as the apotheosis of that, your Honour.

HAYNE J: Not always to great effect with some - - -

MR WALKER: Some make great losses in their attempts as well but others, and importantly, are most certainly not for profit and include, for example, this country's CSIRO, whose use of the Internet is precisely for the kind of scholarly enterprise that, in our submission, properly engages the most favourable sentiment about it in terms of the marketplace of ideas.

CALLINAN J: And therefore it is very unlikely to publish damaging statements about - - -

MR WALKER: Your Honour has what can only be described, with great respect, as a very benign view of the way in which scientists conduct controversies among themselves.

CALLINAN J: No, I understand fully how they conduct controversy.

MR WALKER: In which case, defamation, your Honour, in our submission, is a very constant risk within the academy.

KIRBY J: It has already now surfaced in a case in Western Australia, as I recall.

MR WALKER: Yes. The point I wish to make about the breadth of our clients is this. The first thing is that they are not confined to jurisdictions within the United States of America. The second thing is that they are not confined to profit-making concerns, let alone to gargantuan profit-making concerns, although some of them would fall into that category. The third thing is that they include, and represent as to some of them, the very kind of persons, namely not for profit, who with virtually no financial resources are able to place material on the World Wide Web for downloading at the behest of others whose numbers and locations they will never be able to know, and thus compete in the marketplace of ideas with the largest of my clients.

They are the very kind of people who will be least able ever to afford legal precautions in advance in terms of research as to the defamation laws or lack of laws in the world; as to the technological elaborations, constantly checked and rechecked, which would be necessary, if one was ever to find a firewall which was even briefly fireproof - and the evidence would suggest that none is yet - and, thirdly, the least able to withstand litigation.

So for those reasons, in our submission - although, of course, I appear before your Honours briefed on behalf of a number of persons whose motive is profit and whose business is information and selling those opportunities which come with a supply of information - that is not the whole of the story and the common law, in our submission, ought to be shaped by the spectrum of possibilities rather than by that sliver of it which would present when my learned friend Mr Robertson's client is sued.

The particular issue upon which we present somewhat alternative approaches, to exactly the same end as my learned friend, arises because of the last sentence found in volume 3 of the appeal book at page 561, paragraph 127 of his Honour Justice Hedigan's reasons, particularly at lines 40 to 42.

McHUGH J: What is the page, Mr Walker?

MR WALKER: Page 561, your Honour. It is in paragraph 127 of the reasons. It is on the page at lines 40 to 42. It is the last, and some might say, if not a clincher, certainly a significant finding by his Honour in the catalogue of matters which added up to the particular decision about jurisdiction.

Now, your Honours, there are, of course, three quite distinct inquiries which, depending upon the way in which the issue might be presented, fall or require consideration of where what might be called locational aspects in this case of the tort of defamation should be placed by the law.

There is, first of all, jurisdictional questions, and most acutely the various and varying long-arm rules which apply around the world. Second, there are the applications that might be called forum non conveniens stays and, third, there is "choice of law" simpliciter, but the third, for the reasons which are highlighted by the sentence which I have identified in Justice Hedigan's reasons, is one which will in any event, as again recently noted by this Court in Zhang, be relevant certainly to a stay question and, in our submission, depending upon the long-arm rule, may or may not be relevant in a pure jurisdiction question.

It is the "choice of law" aspect because of the use that may be made of it, for reasons which might include jurisdiction, will certainly include stay of proceedings, that my clients seek to assist your Honours with a view different from the respondent, opposite to the respondent, and somewhat alternative to some of the ways in which the appellant is putting the case.

I should start with an apology about our written submissions. I was imprecise in the distinctions I failed to draw in paragraphs 10, 11 and 12 of those written submissions, where the terminology adopted is to talk about publication culminating in a phrase, tendentious I accept, "single point of publication". I should withdraw that language and change it so that our concern, your Honours, is with using the act of publishing in order to locate the jurisdiction which provides the law to be chosen, as opposed to the fact of publication which of course may, depending upon the particular long-arm rule, provide an answer for jurisdiction and which, on any view of it, will always be critical to questions of stay because the fact of publication will of course be meaningful in precisely those places where the plaintiff enjoys his or her reputation.

GUMMOW J: Perhaps at some stage we better have a revised text of 10, 11 and 12.

MR WALKER: May it please your Honours.

GUMMOW J: That we can substitute.

MR WALKER: It is an important distinction. I apologise for the conflating of the two concepts which I wish to distinguish.

KIRBY J: Apart from the fact that the plaintiff has his reputation, or much of his reputation in say Victoria - - -

MR WALKER: Yes, Your Honour.

KIRBY J: - - - there is also a question as to what the purpose of the law of tort is. At least one purpose, in my conception, is to still controversy, to settle legitimate social claims and to provide compensation where people have suffered wrong. Now, all of that seems to favour the respondent.

CALLINAN J: Plus I might say - and in Victoria this is so - to deter. That is why exemplary damages can be claimed there unlike in New South Wales for example.

MR WALKER: May I take both of those questions and combine them in an attempt to harness them for our side, in this way. Yes, we accept what your Honour Justice Kirby has said, and would add to it by way of a respectful paraphrase that the law of tort is one of those ways in which the civil law governs the relations between parties, and we have used the language of "actor" and the person acted upon or the person affected. Yes, in particular, we embrace what your Honour Justice Callinan said. If the rule of law, particularly in the zone of civil law, is to have any social meaning then, in our submission, it will include the capacity to know it in advance so as to be able to shape your conduct in light particularly of the deterrent example held out by people who have been ordered to pay damages, perhaps in a large exemplary sum, in the past.

So that clarity or predictability is a premium which I accept ought to be applied as a yardstick against the rule for which we contend. The second thing in our submission is that the territorial principle upon which we depend crucially, at the heart of our argument, is the territorial principle which is that it is the law of the place in which the human being is located, the physical body, not the corporation, who does the act which causes the consequences giving rise to the plaintiff's claim which ought, for reasons of rule of law, deterrence, predictability and prospective effect of law, not merely retrospective vindications through litigation, be that system of law which ought to supply, prima facie, always the choice of law for tort.

GLEESON CJ: But if the act is an act of communication, it can take place across large distances.

MR WALKER: Yes, and that is why we have volunteered, indeed we would assert as part of our argument, that the act of communication will practically always but for the example which we wish to develop about the Internet in its present state - and I stress in its present state - the World Wide Web in particular as a subset of its use, normally an act of communication will comprise conduct, a sharp end of which occurs in the place to which the communication is directed. So that when I speak to your Honours my conduct is not confined to behind the lectern but reaches, in that sense, over the Bench. The same is true of the law school example of the act of communication lethally of the bullet fired across the Murray.

In our submission there is no difference at base between those examples, but communication has the extra fact that its very essence is in the making of the connection intellectually and, in our submission, for those reasons all the old cases are intact and totally undisturbed by the principles for which we contend because they accept that where a destination is selected, whether by speech to a person, whether by a telephone call to a number, a letter addressed on the envelope, an e-mail sent to an e-mail address, a radio transmission within the radio wave footprint, a satellite transmission within the satellite's larger footprint; all of those, in our submission, involved selected destination so that in law and in reality as a matter of fact our conduct starts in one place and does not finish until it reaches another place.

GLEESON CJ: This makes the case turn on the difference between pushing and pulling?

MR WALKER: It makes that difference of some moment but, in our submission, it is not pivotal. The pivotal difference is this: the first thing is that I do not stand before your Honours to say that the Internet is, as it were, as dazzling in its advent as the printing press was, assuming the printing press really was a standing start, nothing-beforehand development. Rather, at first sight, what your Honour Justice Callinan has said appears, with respect, to be axiomatic, it is a question of degree but there, in our submission, we would respectfully suggest there is something qualitative, a very important difference of kind. The expression we would urge on your Honours is of indefinite ubiquity. It is ubiquitous not in the sense that it reaches every human being because none of my clients would wish to be associated with the unrealism of suggesting that everybody on the globe has access to the telephone system and to a personal computer, but it is ubiquitous in the sense that nobody has dreamt up a law district which does not have access to the telephone system and a personal computer and "ubiquity" means every law district.

GLEESON CJ: But what Dow Jones is trying to reach is people who earn money and who are willing to pay money in order to get access to information. If you look at the subscription agreement, it is not easy to see in it anything that Dow Jones agrees to do. But presumably the only reason somebody would pay money under a subscription agreement like that is because they think that Dow Jones will tell them something they did not already know.

MR WALKER: Yes, commercial propagators are always going to have to face the question whether they have selected a destination. The Zippo Case in the United States to which your Honours have been referred suggests a continuum of a sliding scale from the interactive site that invites and, therefore, selects destinations by invited interaction with people in particular places, through to the passage site where it is merely put up, as the jargon has it, to be downloaded at later times and, indeed, from different places by reason of intermediate cashing, as it is called.

GAUDRON J: Mr Walker, that sounds good, as to your arguments always. The reality is - - -

HAYNE J: Here comes the knife.

MR WALKER: I can feel a "but", your Honour, yes.

GAUDRON J: - - - it avails no one to talk about indefinite ubiquity in the context of an article the focus of which was a person who was known to reside in Victoria, who was known according to the article to have business, philanthropic and sporting interests in Victoria, who was known to have his family residing in Australia. When you are talking in the field of defamation, there may be cases where, by happenstance or bad luck, you manage to defame somebody by a true innuendo or a false one, I have forgotten how that works. There may be rare cases in which that happens. You may perhaps defame a whole lot of people in rare circumstances, but 99 per cent of the time you are going to be talking about a person about whom you either know a lot or, indeed, should know a lot if you are going to publish it, is that not right?

MR WALKER: Yes and no. It is true that the subject matter of a text, your Honour, may well indicate all the things your Honour has pointed out, but your Honour has not taken into account this very important example in an argument where the respondent either explicitly or implicitly says, "If you are going ubiquitously then take care to tailor your conduct to the places where you may be going, that is, everywhere".

GAUDRON J: That is not entirely true. Certainly, if you work on the assumption that a defamation is committed everywhere that it is downloaded, there are a lot of problems, but if you work on this basis, that the true location of the tort is the place in which it was downloaded and in which the person has a reputation to protect, then you are limiting things very significantly. It seems to me to be a wholly false premise to talk about policy options on the basis that people could, therefore would, sue everywhere.

MR WALKER: Your Honour, the spectre of suits simultaneously everywhere is not the one I am seeking to raise; it is the question of how does one select the system of law by which one should shape one's conduct in order to be a responsible publisher. Your Honour seems to raise that the obvious factor which should be used is where does the person have their reputation? That will not, with precisely the kind of champion litigant that is important in this area, necessarily be simply answered by reference to one, or even two or three, law districts. That is the first thing, and particularly with international business, it will not even be represented - - -

GAUDRON J: Then, when the article deals with events in a particular - - -

MR WALKER: May I respond this way, your Honour. Let it be assumed that in the place where an important person, perhaps even a person involved in government of that place, has their reputation, there is a law which makes it very difficult indeed for a defamation defendant to answer a claim that you have been disrespectful of someone - formerly senior in government perhaps, in any event, a "big" person. Does that mean that everywhere around the word one may not put on the Internet something about that person, though that person may be of international interest though their reputation may be mud elsewhere, perhaps precisely because of the conditions which lead to the kind of law which makes the defamation wins more or less automatic?

Your Honour, in that case we know that the subject matter and indeed the real interest abroad would be because of the reputation being different in different jurisdictions and we would know that the subject matter was highly specific to the jurisdiction which was so friendly to that plaintiff. What your Honour is putting is that because of that subject matter there would be no avoiding the consequence of the Internet publisher until firewalls can be fireproofed because the principle or rule for which we contend depends on that.

GAUDRON J: I just do not see what is different. You are postulating really a situation in which a person you say enjoys an undeserved reputation because of the laws of that country. What is so different about that from the tort of injurious falsehood? If you are intending to have effect in a particular country, and that is what you are postulating, why not say you are subject to those laws?

MR WALKER: Your Honour, if it was an intentionality so that one could prove that as a matter of fact, it would come out by either words or conduct attributed to the defendant, and my rule does not contend against that necessarily. That is, if there is a selected destination, the rule for which we contend in writing would not be different.

GAUDRON J: Why do you not infer that? There may be three or four.

MR WALKER: My answer to that question - your Honour has pulled me up about indefinite ubiquity but that is my answer. You do not infer it because the question of degree becomes a difference of kind at the point where, unlike "The Times" going to every red-coloured part of the map, with the Internet you cannot know, on the evidence before the Court, that there is any place to which the message will not go. Furthermore, you cannot know after you have made your initial publication how long it will continue in circulation because you can no longer control it.

GAUDRON J: Take this message, where was the message significant?

MR WALKER: Your Honour, it will be significant in different ways in different places.

GAUDRON J: It may have been doubtless significant in the US and in Australia, perhaps Israel.

MR WALKER: Yes, your Honour, and perhaps England.

GAUDRON J: Perhaps England.

MR WALKER: Perhaps anywhere his financiers might be located.

GAUDRON J: We do not know about that.

MR WALKER: Financiers are international.

GAUDRON J: But if we have to look for a location - and I do not really see why it has to be a single location in area like this.

MR WALKER: But for choice of law it should be single.

GAUDRON J: I do not understand that in defamation. If it is significant, reputation is different in different places, then why not say, "There are four places whose laws one should have regard to in determining, for example, what is reasonable or whether to publish, but we can forget about Afghanistan, St Kitts, St Helena and so forth"?

MR WALKER: Yes, your Honour. The example you have given is of four defamations. I am not embracing that there is only one defamation. I am talking about a "choice of law" approach based upon the place where the conduct took place which provided the last opportunity to disseminate or not the locus poenitentiae of the Internet publisher. That will be always, and only, upload - and this is an alternative to the appellant's argument. We are not, with respect, urging something which would involve the perhaps nebulous possibility, in some cases, of finding a centre of gravity for an Internet publisher's activities, just the point of upload. I will come to opportunism and defamation havens in a moment.

In answer to your Honour's question, in our submission, our law, Australia's law, should have only one choice of law, that is only one law chosen, when in our law one looks at defamation on the Internet. In our submission, that will be best supplied, as a matter of clarity and certainty and in a way which accords with the basal policy of the law that it should enable shaping of conduct in the future, by reference to where the human being is, who uploads? It is simple. It is clear.

KIRBY J: That is one purpose of the law but the other, as I pointed out, was settling civil disputes in courts, not by violence or individual action.

MR WALKER: Yes. Then, in court the plaintiff sues and if the defendant does not raise the question of choice of law, then lex causae is lex fori. That is the first thing. If the defendant raises that lex causae is lex loci delicti, see Zhang, and that, see Gutnick, one hopes, is to be located while ever the Internet cannot make firewalls fireproof at the place where the uploading took place, then, of course, the defendant has to plead that in Judicature Act 1984 pleadings as a material fact, where did it take place?

It then becomes a fact in issue between plaintiff and defendant, onus being on the defendant with the plaintiff with a full armoury of fact-finding and investigative procedures available in our courts - and this is an Australian decision about Australian courts - and, in our submission, there is no prejudice to a plaintiff in having that fact, like any other fact between a plaintiff and a defendant, particularly one on which the onus lies on the defendant.

McHUGH J: Your argument, like the appellant's arguments, seems to me to refuse to face up to the necessity to determine, first, where is the publication for the law of defamation.

MR WALKER: Your Honour, may I face it now. The publication is where the comprehension of the reader or viewer takes place. That is the publication. That is why I had to correct my written submission. That is publication, of course.

McHUGH J: So the publication in this case took place in Victoria?

MR WALKER: The publication did but the act of publishing, which we urge should become the test for choice of law, that took place in New Jersey - not New York, New Jersey.

KIRBY J: Has that been accepted as the principle by any common law country or jurisdiction?

MR WALKER: No, your Honour, this is the first ultimate court of appeal to look at this matter.

McHUGH J: So how is the case then determined? Let us work out the practicalities of this. A judge says, "This was published in Victoria but for choice of law purposes it was published in New Jersey. I'm going to send the case off to New Jersey". What is the - - -

MR WALKER: Can I respond both to your Honour Justice Kirby and Justice McHugh as follows. There are cases of course which do not distinguish, as I have tried to distinguish by correcting my written submission, between fact of publication and act of publishing. There are cases about publication on the Internet taking place for certain purposes, mostly of long-arm jurisdiction, at the place where it is downloaded. That is the importance of the push/pull thing that your Honour the Chief Justice raised but, leaving push/pull aside for the moment, there are decisions about that, though none of an ultimate court of appeal.

In answer to your Honour Justice McHugh, as Zhang itself illustrated and as this case with the powerful factors connecting Mr Gutnick with New York, for example, and perhaps therefore with its neighbouring New Jersey, about which we say nothing as interveners, those cases illustrate that the law chosen will be only one element in a much broader tapestry of matters to be considered according to the particular and individual circumstances of each case as to a stay of proceedings. Obviously the difference in law perhaps of its language of promulgation may be an important factor when it comes to an Australian court considering what would happen.

KIRBY J: Could you help me on this: why you and Mr Robertson, who did not really address the point orally, have put so much of your argument into the issue of "choice of law" jurisdiction instead of the issue of an inconvenient forum. Is it because we have adopted in Australia this rather peculiar and rather nationalistic test of clearly inappropriate forum when the rest of the common law world has adopted a different one? Is it such a weak reed that you have to try to win at the first basis, or is it a different - - -

MR WALKER: Your Honour, it certainly means that for my group of clients, who come from a number of different jurisdictions and are not all in the United States by any stretch of the imagination, some British, some American, some Australian and some multi-located, obviously enough the jurisdiction question is not one that we can touch as such directly, but choice of law becomes a very important matter for jurisdiction by reason of the sentence that I locate - identified in Justice Hedigan's reasons. That is why I am addressing it. I will have to leave my learned friend, Mr Robertson, to answer your Honour's question for himself.

KIRBY J: It seems to me - leave aside the Voth test - that that is the place in which the Internet problem is going to be solved in the world. Countries are going to say, "Of course we've got jurisdiction. The damage happened here or some other - we can serve here but it is much more convenient that this matter be litigated in another place".

MR WALKER: Your Honour, could I simply say that the convenience issue will be a case-by-case determination in accordance with well-established principles, of which Voth is but an example.

KIRBY J: It is the example that governs us.

MR WALKER: But I am confining my intervention to choice of law, may it please your Honour. Second, as to indefinite ubiquity, can I put this in relation to our territorial principle which is at the heart of our argument. The point about indefinite ubiquity is even when the person you are talking about may be identified mostly with only one place, even then but not only then, because you will not know and cannot know and cannot presently screen effectively, the Internet, unlike any other form of mass media, including multi-transmitted radio, will not enable you to know any difference between everywhere or anywhere as to the place of publication. All that will be known is the place of the act of publishing. For those reasons, if you are going to use law as one should prospectively to shape one's conduct, the only rational, perhaps prudent, way of proceeding is to find out in jurisdictions that matter in terms of likelihood of being sued for money that matters that which has the most savage anti-defendant defamation law and to shape your conduct accordingly.

However, that is a place which would only by a tiny chance of a coincidence be any of: (a) the place where you committed your act of publishing, uploading; (b) the place of the reputation of the person you are talking about - after all, that is one you would have legalled anyhow, one would think; (c) the place where other actual publications did take place, which may be multifarious and may be in places where the person in question has no reputation to speak of. Now, if it is none of those three, it surely cannot supply, for example, anything that Australian common law would supply as the law to be chosen. It would not be choice of law. Yet, unless the law is to move very slightly, oh so slightly as we seek it to move because it is not changing "choice of law" rule but applying the locational inquiry to the Internet in the Internet's present technological state, to say "act of publishing" rather than "selected destinations" because no destinations are selected, except everywhere and the everywhere and anywhere is what I mean by indefinite ubiquity.

KIRBY J: You say it is an ever so slight move but, in terms of legal concept, it is quite a significant move within the whole purpose of the law of tort?

MR WALKER: Yes. In this case it is really only defamation though, of course, the act of - - -

KIRBY J: You cannot just look at torts individually, we have to look at things conceptually.

MR WALKER: May I emphasise, your Honour, we are talking about World Wide Web utterances and because we are talking about World Wide Web utterances, we are talking about principally defamation, injurious falsehood, but there must also be commercial misrepresentations and perhaps other matters from other systems of law which have more or less resemblance to it.

GUMMOW J: Mr Walker, I am just looking at paragraph 10 of your written submissions again. Are you construing 7.01(i) of the Supreme Court Rules of Victoria?

MR WALKER: No, not in that.

GUMMOW J: You are not making any submissions about that?

MR WALKER: No, we are making submissions about choice of law as used in that paragraph of Justice Hedigan's reasons. That is the paragraph where his Honour equates automatically place of publication with the law to be chosen and that is - - -

GUMMOW J: So, in other words, assuming that Dow Jones was carrying on business in Victoria so there was no 7.01 problem, you would submit that the lex causae was not Victoria?

MR WALKER: If it was carrying on business and thus well caught jurisdictionally, no long arm necessary, but the uploading took place anywhere else, then I do submit that, yes, your Honour.

As to defamation havens, it is not to the point to pick shipping in, say, Liberia or tax in, say, Cook Islands, in our submission. You would need more than speculation before one talked about defamation havens. There is, as left in Zhang in paragraph [60] and paragraphs [122] and [123], there is always the possibility of a true public policy exception, for example, if human rights anti-discrimination standards to which Australia is party were breached by the foreign law - - -

CALLINAN J: Mr Walker, was there any evidence of the "choice of law" rules in New Jersey? Perhaps I should have asked Mr Robertson this.

MR WALKER: No, I would have to leave that to my friend, Mr Robertson. I am conscious of my friend Mr Sher's requirements for time.

CALLINAN J: Because one might think that the application of Australian law in New Jersey would be quite repugnant to the freedom of speech rules in the United States.

KIRBY J: Just as their laws in this country are repugnant to many Australians

MR WALKER: Yes, one of the paradoxes, perhaps, at least as seen by - I do not know how to say this politely - non-practising lawyers about "choice of law" so-called conflicts is that the "choice of law" rules may not exhibit, what shall I call it, the kind of comity with which many of the discussions commence. But that, in our submission, is too large or at least too vague a topic to be informative of the issue before your Honours today.

As to defamation havens, the other possibility, of course, is that like all common law, each jurisdiction may enact legislation to affect, if there ever is a mischief that falls to be denigrated by expressions like "defamation haven". I mean, a defamation haven may turn out to be, as it were, a Savoy for libellers, it may turn out to be that, totally unmeritorious; but it may equally be simply a place that has struck the balance differently between so-called freedom speech and so-called preservation of reputation.

In our submission, just as in the anti-trust area, the Parliament of this country passed the Foreign Proceedings (Excess of Jurisdiction) Act to deal with what would otherwise arise. In our submission, if there is ever a mischief, we have either a Zhang public policy residuum not yet explored, does not have to be explored - no one has suggested that New Jersey or New York would run foul of such a value - or we have legislation which is an ideal way of dealing with the possibility of abuse. Abuse, in our submission, speculative and hypothetical, should not be used as a foundation to shape how the common law should proceed with a high premium on certainty and clarity. May it please your Honours.

GLEESON CJ: Thank you, Mr Walker. Yes, Mr Sher.

MR SHER: May it please your Honours. Could I just point out something a little odd about part of the discussion that the appellants engaged in concerning the laws of New Jersey and New York. In note 47 of their written submissions on page 12 they refer to the fact that:

There is little difference in the defamation laws of these contiguous States: New York supplies the lex causae for the print publication and the law which governs the Internet subscription agreement; although New Jersey, as the location of the server, might be characterized as the lex loci deliciti for purposes of the Internet tort.

Then note 100 at page 26 it is asserted that:

The states of New Jersey and New York, separated by the Hudson river, have identical defamation laws.

Both notes cannot be correct. Even if they are correct, that is to say even if the second one is correct, can I draw your Honours' attention to a publication which I have discovered since we made our point in our written submissions about the Court being asked to change the law without knowledge of all the different jurisdictions. There is a very useful analysis of some of the laws of some of the jurisdictions in Carter-Ruck on Libel and Slander, 5^th edition, in paragraphs 29 to 34, including the USA at page 436. Interestingly, the author does not talk about Australia or Canada, although he does talk about New Zealand, but he has lots of countries he discusses here. But of the US he says this:

It is not possible in an account of this nature to give more than a brief summary of the law of defamation in the USA. This branch of the law is of some complexity and varies considerably between state and state.

Now, assuming that to be correct and there was the terrorist threat suggested by, I think, your Honour the Chief Justice and they decide to locate their web server in another State of the United States, the position would be no different than if they located it in India. The laws would be different. Then you have the difficulty facing a plaintiff going to a barrister for advice as to whether he or she has been defamed and who to sue and where, and nobody knowing which law applied.

KIRBY J: They say we have a new phenomenon and Lord Mansfield pressed it forward to deal with the printed press and the newspapers. We are asked to push it forward and change the law slightly, conceptually within the paradigm, to deal with this new phenomenon.

MR SHER: It is not a slight change, your Honours, it is a massive change.

KIRBY J: The worry is that it is a change that we are being asked to make without a full knowledge of all of the relevant considerations. For example, Mr Walker footnotes quite a lot of very interesting cases, including one in the Court of Cassation of Italy and France, but we do not have access to those. There were a lot of articles there. There are books that I am not sure are in our library. I just feel anxious about being asked to change the law when I do not have all the relevant data.

MR SHER: Well, your Honours, Carter-Ruck is the only place we have found where there is a description of defamation laws in a number of countries and Italy may well feature in that and so may France, I am not certain, but there is another problem - - -

KIRBY J: This is all happening very quickly?

MR SHER: It is, indeed, but there is another problem and it is even more acute than the one your Honour Justice Kirby has identified and that is that this is a law that they want to change for all causes of actions emanating through the publication on the Internet. It is not confined to defamation.

It would include breach of contract over the Internet, breach of copyright, injurious falsehood, passing off, probably breach of section 52 of the Trade Practices Act 1999 , and it would include also criminal acts and that is made clear - - -

KIRBY J: Well, in Australia we do have new statutes - - -

MR SHER: I was just about to mention the - - -

KIRBY J: - - - in certain States in criminal Acts.

MR SHER: I was about to mention the federal legislation in relation to the publication of X-rated material on the Internet. There is specific legislation - notwithstanding the difficulties of endeavouring to stop this - there is legislation at the Federal level in the additional material which we have made available to your Honours. The relevant Act is Schedule 5 of the Broadcasting Services Act 1992 which has been amended in 1999 to prohibit the publication in Australia of material which has been effectively banned. There is a whole scheme to be found in Schedule 5, but if your Honours have that publication you will see that it deals in Schedule 5 with "online services".

KIRBY J: There is an Act with a title like that, the Online Services Act?

MR SHER: There is an Act called the Broadcasting Services (Amendment) Online Services Act . It is Act No 90 of 1999 and that enacted Schedule 5 inter alia as a new law for Australia. And the relevant provisions relating to broadcast on the Internet of prohibited "content hosted outside Australia" is clause 40. There is a very useful simplified outline of this Schedule on the first page of it in clause 2. Perhaps if I could take your Honours to that outline firstly. It is on the second page of the document. It is clause - your Honours will see the third bullet point in the material enclosed in the box. It says:

If the ABA is satisfied that the Internet content hosted outside Australia is prohibited content or potential prohibited content the ABA just:

(a) If the ABA considers that the content is of a sufficiently serious nature to warrant referral to a law enforcement agency - notify the content to an Australian police force; and

(b) -

and for present purposes this is more relevant -

notify the content to Internet service providers so that the providers can deal with the content in accordance with procedures specified in an industry code or industry standard (for example, procedures for the filtering, by technical means, of such content).

GLEESON CJ: But the second bullet point indicates that they fasten onto "Internet content which is hosted in Australia" and it is the "Internet content host" that is an Australian.

MR SHER: No, it is not, with respect, your Honour. It is hosted overseas but accessed by a local Internet service provider.

GLEESON CJ: What is the meaning of that expression, "Internet content hosted in Australia"?

MR SHER: I am sorry, your Honour, I think, may be reading from a different part.

GLEESON CJ: Second bullet point.

GUMMOW J: That is a reference to Division 3, is it not, starting at clause 30, and the next bullet point is a reference to Division 4, starting at clause 40.

MR SHER: That is right and I think your Honour the Chief Justice might be reading from the first page of the outline rather than the second page.

GLEESON CJ: No, it has clause 3 in the top left-hand corner, is that right?

MR SHER: Yes, that is the one, your Honour.

GLEESON CJ: Second bullet point, "If the ABA is satisfied - - -

MR SHER: That is not the one I read, it is the next one, your Honour.

If the ABA is satisfied that Internet content hosted outside Australia is prohibited content - - -

GLEESON CJ: So it then fastens onto Internet service providers in Australia?

MR SHER: That is right, and it refers there to "procedures for filtering".

GLEESON CJ: In the present case let us suppose that Barron's included some offending material of the kind this is aimed at. How would the legislation work?

MR SHER: There would be an Internet service provider to every person who downloaded the article. It may be Telstra who have an online service, it may be Optus. There are a number of very large Internet service providers and a few small ones.

GLEESON CJ: So it is Telstra that would get the notice?

MR SHER: That is right, your Honour, but the point is that this legislation recognises the possibility of criminal acts being committed on the Internet from outside Australia communicated into Australia. That is the first point we make, and that is particularly clause 40. The second point we make is the federal Parliament has recognised the possibility of filtering. In a rapidly developing technology, in our submission, it is inappropriate to change the law because today it may be difficult when tomorrow it may be relatively easy. The admissions made in the hearing before Justice Hedigan about firewalls, which we have referred to in our outline, make it clear that largely firewalls are effective. It is only on a rare occasion that somebody who is desperate to try and get around a firewall can take steps to do so.

GLEESON CJ: Would your client have a cause of action against Telstra in respect of this material?

CALLINAN J: Of the basis of Webb v Bloch it would, would it not?

MR SHER: Yes, it might.

CALLINAN J: All enablers, at page 364, volume 41, the judgment of Sir Isaac Isaacs - - -

MR SHER: That is subject to the concept of innocent dissemination as a defence and I think, your Honours, there is also legislation that touches on this question. I cannot give your Honours a reference to it immediately but will try and do so this afternoon.

In the same way as authors, printers, publishers, distributors are all in one way or another liable for defamation, then I suppose, theoretically at least, the ISP - the Internet service provider - may fall into that camp provided they do not have a defence to it.

KIRBY J: Yes, the Court was urged in Zhang, I think, not to take any steps because there was a Law Reform Commission report. We do not even have a Law Reform Commission report here, yet the Court clarified the law. Now, what is being urged on us, we have a new problem, we have a particular case, and unless the law does step forward Australia may find itself blanked out from access to the Internet. That may protect your client but that is a very undesirable thing, as you have demonstrated this morning by giving us material from the Internet.

MR SHER: Well, we understand the point but if I can take a guard from Justice Callinan's observation, and we say this ourselves in our submissions, there is nothing new about this. It is just the medium that is new. The fact is that since - - -

KIRBY J: You say there is nothing new about the Internet and the World Wide Web.

MR SHER: No, no. I am saying nothing new about the issue; that is to say publication by a medium which transmits messages to a wide and diverse audience. Justice Callinan used the example of the Time newspaper printed in London, sent out to the colonies throughout the world when the map was largely red, or large parts of it were. That is not even last century. It is the century before.

Our submission is that the fact that the new means of communication leads to more rapid and more profuse publication is a good reason to ensure that defamation does not become the order of the day or, alternatively, it becomes impossible to sue anyone for defamation because the practical realities are that if the law is changed, as the appellants and the interveners suggest, people seeking advice from barristers in chambers as to whether they have been defamed would not be able to give them any advice at all if the publication was on the Internet until they had made a series of complicated and expensive inquiries, some of which may be entirely impossible to achieve the desired result.

McHUGH J: In a case of cable television providers, you may have two systems of law. It is very common these days for television stations to have web sites which you can download material, even enter into discussion on the web site. So, if CNN make a broadcast, decide to broadcast from Iraq or Iran, on one view, the television medium is subject to the ordinary laws of libel but the same story on its web site is governed by a completely different set of laws. It is the same story.

MR SHER: When your Honour says it is governed by a different set of laws, it is the same - - -

McHUGH J: That is the argument against you.

MR SHER: It is the same law, that is to say that you are liable where you publish the defamatory material. The question is a factual one: where did you publish your defamatory material? If you published it in more than one place, you are subject to the laws in the more than one place. That is common in Australia with national publications with newspapers.

McHUGH J: Yes, but what I am putting to you is that on the appellant's argument you have two systems of law governing the publications.

MR SHER: But you do today. If I am defamed in the Australian newspaper and it is published throughout the Commonwealth and I bring proceedings for damages, there are eight lex loci delictis.

GUMMOW J: Yes, by Justice McHugh is postulating all in the one jurisdiction, you see, as a consequence of what has been put against you. Now, I do not see why you are resisting that at the moment.

MR SHER: Well, I must have missed the point that your Honour was making. I suspect that is why I am resisting. I thought your Honour was making a different point. In any event, your Honours, our submission is that the starting point for any consideration of this matter has to be a consideration of the concept of the place of publication for the law of defamation and that is well-understood law. It is dealt with in detail, with reference to most of the relevant authorities, by Justice Hedigan in his judgment at pages 506 to 520 of the appeal book and his conclusion is expressed in paragraph 60.

I do not wish to take up the time of the Court by traversing all those authorities and that ground, although I had intended, if time permitted, to take your Honours to four, now five cases, in particular three of which deal with the Internet, but I will not do that at the moment.

Those four cases were in our list of authorities and were the decision in Jenner v Sun Oil, which has been cited many times in many places; Chinese Cultural Centre of Vancouver v Holt, because the facts of it are very similar to the facts of the present case; Digital Equipment Corporation v Altavista Technology, which is an Internet case involving publication from one State to another on the Internet and the court held that the downloading was where the publication occurred; Godfrey v Demon Internet which is an aspect of the Internet which deals with Usenet, which is where publications are placed on a web site and left there so they can be accessed.

GUMMOW J: What is the citation of that?

MR SHER: Godfrey v Demon Internet [2001] QB 201, especially at pages 208 and 209. The fifth case that we would now rely on is the case that we only discovered last night and received a copy of this morning, which is the case of Young v New Haven Advocate which is squarely on the point.

GUMMOW J: That is the case that is coming up next week, on appeal.

MR SHER: It is to be argued next Monday, yes.

GUMMOW J: Yes.

KIRBY J: Do you say there is a common thread through those decisions?

MR SHER: There is a common thread and that is that publication takes place where the materials comprehended - - -

KIRBY J: That would fit in with the purpose of tort which is to settle - to quell disturbances by law, not in the streets.

MR SHER: Yes, and to vindicate the reputation of the person in the place where it matters to them, as it did to Mr Gutnick in this case, because the part of the publication that he chose to sue on rather than get embroiled in a huge case in the United States and one where he can demonstrate the weakness of this whole article by demonstrating how false this part of it is, is a Victorian matter, the Goldberg allegations which was peculiarly Victorian.

GAUDRON J: Why could there not be a gloss on what you have just said limited to places in which the plaintiff has a reputation to be protected? I mean, in the sense that - - -

MR SHER: Well, your Honours, that gloss already exists in the practical sense because - - -

GAUDRON J: Yes, I know it exists in a practical sense but I am thinking, for example, this: accepting Mr Robertson's proposition, this country should develop really harsh defamation laws so it is advantageous for plaintiffs to sue here, but why should they if they have no reputation in this country to protect?

MR SHER: Well, if they have no reputation to protect, there would be no damage.

GAUDRON J: Well, exactly. That is why I am asking. You have picked where the material is understood. I am adding to it where it is understood in a manner that damages the reputation of the plaintiff, because ultimately there is the element of damage to reputation involved in the tort.

MR SHER: If you are not known in a jurisdiction and you have no reputation to be damaged there, it would not matter how many people comprehended the publication, you would not suffer damage and the practicalities are that you do not need a rule of law to protect people from being sued in that jurisdiction because, as a matter of practicality - - -

GAUDRON J: Well, you might. I mean, things might develop.

MR SHER: There are two cases in the United Kingdom that were based upon this sort of argument. Berezovsky - it was argued there was very little reputation in the United Kingdom and in the other case, the name which escapes me, but the person was a resident of the United Kingdom, had family there but did a lot of business in Israel. In each case the defendant suggested that a person had only one reputation and that they should sue in the place where the reputation was, in effect, more substantial.

KIRBY J: Was that on a non conveniens argument?

MR SHER: It almost certainly was.

KIRBY J: It sounds like it.

MR SHER: I was about to say, further to Justice Gaudron's proposition that what her Honour has put, really goes to the question of forum non conveniens rather than the question of publication.

GAUDRON J: I am wondering about that.

KIRBY J: Perhaps somebody will argue that.

MR SHER: Yes.

McHUGH J: After lunch I would like to hear you on a problem that worries me and that is the problem of publication for the law of copyright if your argument is accepted. If works are published electronically through networks in countries which fall outside the Bern Union then they are deemed or considered to have been published in all countries who are parties to the Bern Union and that has the strange result that members of the Union are thus obliged to protect those works, even in the absence of protection of their own works. Another problem that arises in the law of copyright is that when you have simultaneous publications in countries within the Union, the protection depends on which country has the shortest term of protection, so it would have the result that if you have 10 publications so to speak then the protection in terms of copyright is limited to the country with the shortest period of protection even though at the place where the publisher is, it may be a much longer term of protection.

MR SHER: Can I say this, your Honour. I did not come here today prepared - - -

McHUGH J: No, I know.

MR SHER: - - - to argue some of the intricate details of the law of copyright, but would a written submission suffice subsequently?

McHUGH J: Yes.

KIRBY J: There has been some new intellectual property legislation dealing with aspects of copyright on the Internet.

MR SHER: It would not be possible for me to make any useful contribution after lunch, I think, your Honour, and I prefer to devote my time to something on which I think I can make some sort of contribution.

KIRBY J: I hope you will keep a little bit of your time for forum non conveniens, which is an issue that interests me.

MR SHER: Yes. Well, we did intend to say something about it, your Honour, but I must say not at length - - -

KIRBY J: I am glad to here it.

MR SHER: - - - because it is discussed in detail by Justice Hedigan and we rely on what he says about it, but I will deal with that matter to some extent.

GLEESON CJ: We will adjourn until 2.15 pm.

MR WALKER: Your Honour, may I address a question that Justice Kirby raised? Would it be of assistance to the Court if we were to provide copies of the material, the non-judicial material, that is referred to in our - - -

KIRBY J: Well, you normally do, and that is the reason I commented. It would be helpful to me.

GLEESON CJ: Yes, please do that, Mr Walker.

MR WALKER: May it please your Honour.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Yes, Mr Sher.

MR SHER: Your Honours, the legislation that protects the innocent disseminator under Schedule 5 is clause 91 of that schedule. There is a specific provision dealing with the situation of people who might be caught otherwise.

Your Honours, can I take the Court to the appeal book page 520 in the judgment of Justice Hedigan to direct attention to a point which we would respectfully submit is a matter of major importance in this matter and that is the question of intention. Justice Hedigan voiced his conclusions at paragraph 60 as follows:

I have concluded that the law in defamation cases has been for centuries that publication takes place where and when the contents of the publication, oral or spoken, are seen and heard, (i.e. made manifest to) and comprehended by the reader or hearer. I reject the defendant's submissions that the Duke of Brunswick case or Burdett established then or now any different rule for publication for the purposes of civil defamation. My preference is for the long and steady line of authority referred to over these errant authorities, asked by Mr Robertson to bear a greater burden than they can support alongside the mainstream of long applied and respected cases. I therefore conclude that delivery without comprehension is insufficient and has not been the law. On this basis, then, I uphold the plaintiff's contention that the article "Unholy Gains" was published in the State of Victoria when downloaded by Dow Jones subscribers who had met Dow Jones' payment and performance conditions and by the use of their passwords. It is also absolutely clear that Dow Jones intended that only those subscribers in various States of Australia who met their requirements would be able to access them, and they intended that they should.

In our respectful submission, the question of intention is a vital issue in relation to the concept of publication and the evidence in this case clearly established that the intention of Dow Jones was to publish what was uploaded by them in New Jersey to persons who had downloaded the article when they did so either as subscribers or potential subscribers. Our submission is that it is the act of Dow Jones that resulted in the publication in the places where the subscribers downloaded the article and not some independent, unexpected or unintended act of the subscriber.

KIRBY J: It really involves two to tango, does it not? You need both. I mean, the Internet is available in outer Mongolia but nobody is going to download the particular article there but you need two, you need both. But that may be enough. It may not affect your proposition but you cannot just say that it is only the person who uploads because, absent downloading, it is innocent.

MR SHER: I agree entirely, your Honour. The point we are making is that when the downloading takes place, that is legally the act of the person who has uploaded the article for that purpose and with that intention.

KIRBY J: Now, that makes everybody who ever uploads anything liable anywhere in the world to a chance incident of downloading and implies that the law is that that person, in order to defend themselves, must be aware of that and if they are to be liable defend themselves against it or that we say that that is just part and parcel of this radical new technological development.

MR SHER: We do not need to go that far in this case and we limit our argument to the proposition that where you are uploading material for subscribers and potential subscribers you are intending for those people to download it otherwise there is no point to uploading it. Now, if the law be that any person who places material on an Internet site is going to become responsible for a defamatory publication anywhere in the world where that material is downloaded, then that is certainly further than we need to go, but that would - - -

KIRBY J: But it is the consequence of your logic, is it not? That has a potential to have a real chilling effect on the utility and the material that is put on the Internet. Americans will soon get the message that they are liable to be sued all over the world for - some of the most restrictive defamation laws. President Mugabe will sue them in Zimbabwe for things they publish.

MR SHER: We would not agree, with respect, that it is the logical consequence of what we say. We are talking here of a targeted audience selected against - and the publisher in this instance can prevent anyone who is not either a subscriber or provides material to them to enable them to send the message to a particular site - and one only has to look at the subscription form which is in the appeal book to see that. That is the target and it is not a logical consequence, in our respectful submission, that anyone, anywhere, is necessarily the target.

KIRBY J: So, your claim for damages will be restricted to the downloading by the subscribers to this service?

MR SHER: It certainly is. That is all we have sued for. We have sued in respect to publication in Victoria, to the persons who were subscribers or potential subscribers to the publication and to those persons who might reasonably have been foreseen, those subscribers would in turn communicate that material too, in the same way as in any defamation case a publisher is liable to the natural and probable consequences of a publication. And that is an alternative way of looking at it, although Gatley distinguishes between the two, as do some of the authorities, although some of them do not distinguish.

The concept of natural and probable consequence is another aspect, we say, of responsibility for a publisher in respect of a publication by whatever means.

McHUGH J: Well, it goes slightly beyond that, does not it, because a person is liable for a publication if the publication is either the direct cause or the natural probable consequence of the person's conduct or if that person should have reasonably anticipated publication?

MR SHER: Can I answer your Honour's question or proposition by saying we do not seek to make any changes to the law of defamation, and like our opponents, we say the law of defamation is applicable in accordance with well-established principles to publication on the Internet and particularly in the case of subscription services.

Some of the dangers to which your Honour Justice Kirby referred and the concept of the chilling effect are, in our submission, not real dangers in a practical sense, and they are discussed in some detail and very helpfully, in an article in the Sydney Law Review which was amongst our additional material that we had circulated to your Honours this morning, and I will not take your Honours to that article now.

That proposition that your Honour Justice Kirby put to me is discussed and the answers to it, as they have already, partly been provided in the textbook to which my learned friend, Mr Robertson, referred, Dicey and Morris where aspects of the publication on the Internet and the answers to complaints about them are given. Where I differ from my learned friend is that the English rule to which he referred is in fact an English rule but it is the equivalent of the second part of Order 7.01 of our rules upon which we relied. So the reasoning in relation to that particular rule, that is damage within the jurisdiction, is another answer.

The practical answer to your Honour Justice Kirby, and it is an answer to something Justice Gaudron put to me before lunch, and that is as a matter of practicality people are not going to sue for damages, for defamation, in jurisdictions in which they have no reputation. When they choose to do so they are met usually successfully, if they have no reputation, with an argument about forum non conveniens, as there were in one of the cases referred to by Justice Hedigan in his judgment, a case that my learned friend, Mr Robertson mentioned about a gentleman who sued in Texas where he had absolutely no reputation at all. The name of that case is Wyatt v Forbes. He sued in a jurisdiction in which he had no reputation, and the courts would not permit it.

The other case that immediately springs to mind is the case involving the Belgian, which is Kroch v Rossell. It is on the list of authorities that has been provided to your Honours. Two cases in which the attempt was made to prevent the trial taking place in an inappropriate forum but failed were Berezovsky and the other case that I mentioned before lunch, the name of which I did not have, but it is Schapira v Ahronson. These cases are all discussed by Justice Hedigan in his reasons for judgment.

Now, the issue your Honour Justice Kirby referred to is really a forum issue. It is not a publication issue. I am trying to focus attention for the moment on that issue which is that the publication in this case, and we submit in any case involving subscribers to the Internet, takes place as part of the act of the publisher when it is downloaded by the subscriber, because that is what the publisher intends to happen otherwise there would be no point in publishing.

It is probably useful even at this stage to take your Honours to part of a document which we tendered in evidence following cross-examination of the only Dow Jones witness that was called - it is at page 408 of the appeal book in the same volume as the judgment - to show what it is that Dow Jones does and to answer another point that my learned friend made this morning about doing business. This is the document at 408 headed "Privacy Policy". Can I take your Honours to the heading at about line 32, "How We Use Information Collected". Dow Jones tells everyone who subscribes the following:

We may use information in the following ways:

For the purposes for which you specifically provided the information including, for example, to enable us to process, validate and verify subscriptions.

To send you e-mail notifications about our new or existing products and services, special officers, or to otherwise contact.

To enhance existing features or develop new features, products and services.

To provide advertisers and other third parties with aggregate information about our user base and usage patterns.

GLEESON CJ: Was there any evidence in this case about that description of their services? I have in mind that the subscription agreement is not terribly explicit about the services that were to be provided by Dow Jones. Maybe that is something that has to be implied or maybe you would find it in material of the kind that is referred to on page 408, but what do you say were the services that were provided by Dow Jones to subscribers?

MR SHER: Certainly access to their publications, including "Barron's Online", which is not their only publication.

HAYNE J: Is it illuminated by what appears at pages 405 and following or not?

MR SHER: It does not appear to be, your Honour.

HAYNE J: Is 405 the form which a subscriber has to fill in?

MR SHER: Yes. Actually, how it happened was that it was downloaded from the Internet and then I cross-examined Mr Sichler about it. His answers were less than frank, we would suggest, but he eventually was compelled to agree that this was their subscription document. Of course, if you look at it carefully your Honours will see that you have to fill out the form and click, submit when you are through, and if you do not provide them with all the information they request, they reject the form until you do. Amongst the things that you provide apart from your name and street address and city is your e-mail address and you have to choose a user name and password. If you look at the second page of the document, 406, they seek information from you about "Help Us Better Serve You" which is at line 20.

HAYNE J: But what you are subscribing for is under "Choose a Subscription Plan", is it?

MR SHER: That is right, your Honour, yes.

HAYNE J: And relevantly, it is the "Standard Rate - annual payment $59", US, which presumably is the electronic subscription?

MR SHER: That would be the inference that we suggest one would draw. Then over the page your Honours will find how you pay for this. You can pay either online or by phone through the use of a credit card. There was quite substantial cross-examination of Mr Sichler about this particular document and the next document with a view to showing that Dow Jones well knew who the recipients of this material were and, if they did not know, they could find out without much difficulty.

KIRBY J: Is this all designed to show that there was a net which was cast to identify a reasonably identifiable category of people and that therefore we are not talking about publication to or damage in the hands of the whole world; we are talking about an identifiable audience?

MR SHER: Absolutely. Indeed, if I can just mention the print - - -

KIRBY J: So your client would not at trial be saying, "I've been defamed all around Australia". He would just be confining it these 145, or whatever it was, plus those to whom - - -

MR SHER: There were some hundreds admitted but, significantly, they were hundreds of significant and important people. The point I was about to make about the print publication was - and I will come back to your Honour Justice Kirby's point about whether that is even an issue here and whether a notice of contention was even necessary. The print publication, it was proved, went to two people from two of the leading financial institutions in Australia: the AMP Society and National Mutual, as they were then called. There have been a number of reported defamation cases in the law books where publication has taken place to one person.

KIRBY J: Yes, but are you relying on it or not?

MR SHER: We do, yes, but I will explain that to your Honour a little later if I can. Amongst the other material that was tendered, your Honour, and extracted from Mr Sichler were extracts from their log files and other - they are all in the Court books - showing that they could identify the recipients of this material.

GLEESON CJ: Does the evidence show that you can, if you want to, subscribe to Barron's in print form?

MR SHER: I cannot answer that question, your Honour.

GLEESON CJ: I notice that on the front page of the document in that large folder there are subscription rates, but I wondered whether it is the case that if you subscribe in the manner you have been describing, all you are really doing is getting in electronic form the information that you would get in hard copy if you subscribe to the print.

MR SHER: There was evidence that there were, I think, 14 print subscribers in Australia, but we led evidence of five persons who had purchased the print publication in Victoria, in Melbourne, but at that stage we were only seeking to establish some evidence of publication for the purpose of the forum non conveniens argument.

GLEESON CJ: But a barrister might subscribe to the Commonwealth Law Reports and get little books or might subscribe to them in electronic form, and he gets the same information in every case.

MR SHER: Yes. Exactly, and that is, I think, what the evidence disclosed here. To go back to a point your Honour Justice McHugh raised with me before lunch, which Justice Gummow could not understand why I was not embracing it, was that I thought your Honour was making a slightly different point which I answered by saying you can get different "choice of law" situations in a defamation case in Australia, frequently where there is a national publication, but the point that I missed was the point your Honour was making, as I think I understand it now, was that the very same publication published in two different formats leads to two different choices of law, which is ridiculous really, and that point I do embrace and - - -

KIRBY J: Except that the one is something tangible and is in an identified and generally smaller number of places. The other is everywhere, ubiquitous and can be downloaded in every country of the world, in every legal system of the world.

MR SHER: I know your Honour says and it is true of the free access World Wide Web, but it is not - - -

GLEESON CJ: Well, I suppose your proposition is the fact that something is everywhere does not mean it is not anywhere.

MR SHER: No, that is right, your Honour. Indeed, this case was very carefully thought out and presented and it was presented in relation to publication solely in the State of Victoria and in respect of a discrete part of the article, was separate and distinct, and that is not the subject of any appeal, and which was Victorian in nature, and it enabled the plaintiff to bring what was then thought, foolishly no doubt, to be a short, simple case that could be tried fairly quickly and his name vindicated.

KIRBY J: Yes, but we have to look at a case as an instance of a wider genus and we have to solve this problem as one would solve the wider problem, otherwise it will come to haunt us in the future.

MR SHER: Indeed. Your Honour will recall I sought to prevent the interveners coming in because they were broadening the picture and we said it was not necessary and they have broadened the picture.

GUMMOW J: Do not go back over that.

MR SHER: I understand your Honour's point. We say it is not necessary for the decision but we understand why your Honours would address it.

Now, can I just go back to intention for the moment, your Honours, because it is really a critical issue in this case and in relation to publication. The law is summed up very succinctly and, in our respectful submission, correctly in Gatley in paragraph 6.30, which was on our list of additional material, and there are four cases to which I would refer your Honours without actually taking you to them for the purpose of reading from them and two of them are actually cited by Gatley. The paragraph is headed "Liability of the original publisher" and it is in a discussion which appears to be directed mainly to the concept of re-publication but nonetheless it deals, in our submission, with original publication in the sense that where you intend a publication, that is an original publication. The author says:

Where a defendant's defamatory statement is voluntarily republished by the person to whom he published it or by some other person the question arises whether the defendant is liable for the damage caused by that further publication. In such a case the plaintiff may have a choice: he may (a) sue the defendant both for the original publication and for the republication as two separate causes of action, or (b) -

and this is the paragraph we would emphasise:

sue the defendant . . . in respect of the original publication only, but seek to recover as a consequence of that original publication the damage which he has suffered by reason of its repetition, so long as such damage is not too remote.

Actually, I am sorry, it is not that paragraph that I rely on, it is one over the page. If I can take your Honours over the page I will read from the bottom. After discussing republication, the last two words are:

Beyond this it may be that the original publisher should only be liable as a publisher of the republished statement where he authorised or intended it -

and that is really what we are submitting here that that is the law, that the original publisher is liable as a publisher of the republished statement where he authorised or intended it. The author goes on to say:

but some of the cases speak in broader terms and assume that the same prinicples relating to the responsibility of the defendant apply to both situations. In any event, the starting point is that the defendant is prima facie not liable because the voluntary act of a third person breaks the chain of causation. However, the defendant is liable for the republication or for the damage caused by it:

(a) where he authorised or intended the republication -

and (2) and (3), and (3) is the natural and probable result.

Without reading from them can I invite your Honours' attention to the following four cases which, in our respectful submission, support the principle at the top of the page. They are the old case of Whitney v Moignard and these are on our amended list of authorities which give you the page references as well.

GLEESON CJ: Just read the references on to the transcript, if you would not mind. The list of authorities go to our associates.

MR SHER: Yes. Whitney v Moignard (1890) 24 QBD 630 at 631, Speight v Gosnay (1891) 60 LJQB 231 at 232, Sims v Wran [1984]

1 NSWLR 317 at 320 and Toomey v Mirror Newspapers (1985)

1 NSWLR 173 at 181G to 184A, a case to which I will refer, again, in a moment on a different point.

We submit the appellant downloading to take place and that made him liable as the publisher, but there is a further problem for the appellant in this case and that is a factual one which Justice Hedigan discussed at pages 522 and 523 and which we refer to in paragraph 29 of our written outline of argument and that is the fact that the web server of the appellant was not idle when the request came in to it for the downloading from the Internet service provider on behalf of its client from somewhere in Victoria.

Your Honours will see at the top of the page his Honour referred to an argument of my learned friend, Mr Robertson, which has now been abandoned, and it is this:

Mr Robertson's argument was that the act of delivery, on which he relied, was completed without the necessity for understanding as soon as the material was uplifted as a consequence of the Web server request.

So, what he was saying before Justice Hedigan was not that the publication took place when it was downloaded but rather when it was uplifted from the web server as a result of the pull request. His Honour continued:

He did not contend that it was published or delivered whilst quietly sitting in the Web server. Of course, neither at that time nor on the instance of uplifting was it capable of being understood, but his argument was that at the time of uplifting it was delivered. One accepts that delivery of an electronic document on to the plaintiff's Website will only occur if the electronic request is met and the electronic message is sent. It may be that the Web server cannot distinguish between the location of the Web browser seeking to access the Web page or the search engines which were used in conjunction with the hyperlinks necessary because of the quantity of material.

I have referred to counsel's assertion that those seeking to access the Website were "publishing it to themselves". In one way this is always so even when one buys a book. The question is still, however, where and when is it published?

McHUGH J: Could I just interrupt you for a moment? When it is put on the web site does the evidence indicate as to whether it is just simply there in the form of electronic impulses or, it is not there, I assume, in a printed form?

MR SHER: No.

McHUGH J: No.

MR SHER: It is there in an incomprehensible electronic form, probably in the form of little packets of - - -

McHUGH J: It would be positive and negative charges - - -

MR SHER: Yes. Well, I am not sure the evidence descended quite to that amount of detail, but if we read on you can see how his Honour addressed this question. It is certainly not comprehensible, by anyone, even the person who has put it on, unless they download it themselves. But his Honour was dealing with a factual argument based upon this proposition, that publication took place when it was uplifted, because before Justice Hedigan there were three alternative propositions put by my learned friends. One was the current one, when it was uploaded; the second was this one, where it was uplifted; and the third was a somewhat generally vague proposition that it depended upon some substantive act of the - the way in which it was put in - it is discussed by his Honour in paragraphs 20 and 21 of his judgment at pages 499 to 500. The other alternative was:

the country in which substantially the circumstances giving rise to the claim have occurred.

Whatever that meant, and that seems to have now changed into a "choice of law" argument. But to go back to this evidentiary issue, his Honour said:

The contrast between e-mail and the Web aspect of the Internet was defined as being a contrast between the absence of choice about the reception of e-mail and the situation in the case of accessing the Website in which case the choice is made not by the sender but by the one seeking the access. The claim that those pulling the Web browser publish it for themselves by seeking it out and ordering it confuses acquisition and publication. There is only publication, as I have indicated, when it is published to a third party. Moreover, I do not accept the proposition that the Web server is totally passive, as was pressed strongly by Mr Robertson. The Web server's technology is a participant in the process. Two activities are required. The browser request and the server's response. Moreover, in the case of Dow Jones Barrons Online site, the server's response will be to knock you back if you use the wrong password or you have a delinquent account. It is not, as he suggested, just a repository and is not just a "pull" method. Dow Jones sets conditions specifically applicable to each client and its Web browser. The "pull" technology only operates on the defendant's terms. When the so-called knock on the door comes it is a Web server that opens.

Without their Web servers and electronic co-operation, nothing will occur. If the computers were down or turned off nothing will occur. But assuming the request is decoded and accepted, the response in the form of electronic bursts is made. In the same nanosecond it enters into cyberspace in New Jersey and arrives in Victoria. In my view, for the law's purposes, the operation of this phenomenon is not a divisible operation.

That is also an answer to my learned friend Mr Walker's proposition about distinguishing between the place of publication and the act of publication. They are, for present purposes, identical.

The other point made by his Honour which seems to have been glossed over in the arguments about uploading the web server and the place of publication is there is no communication to a third party, which is absolutely critical with the law of defamation. It is a fundamental aspect of defamation law - certainly in England and Australia but not in Scotland - that you have to publish to a third party. In Scotland you can publish to the victim of the defamation and find yourself on the wrong end of a suit. For those reasons, your Honour, we - - -

GAUDRON J: Your argument, as I understand it, Mr Sher, really goes to where, under traditional analysis, the tort is completed, is that right?

MR SHER: No, the tort is completed when damage occurs and that - - -

GAUDRON J: Well, that is why I asked you about reputation earlier.

MR SHER: Yes. I am going to come to something your Honour Justice Gaudron said, I think it was to Mr Walker, about the elements of the tort in relation to selecting choice of law. The elements of tort really - there are only two that matter to a plaintiff, publication and damage. One immediately follows the other. But in the case of a mass media publication, and certainly where the original publisher is responsible for repetition, the damage may take place over a period of time and may continue on for a substantial period of time.

So focusing for the moment on the first issue in this case - and the critical one, because, in our submission, virtually everything else flows from it - where does publication take place? In our submission, comprehension is the test. That has been the law for centuries and there is no reason to change it and we challenge the - - -

GAUDRON J: But what do you say about the Voth test, if it were to be accepted?

MR SHER: Well, that comes to choice of law.

GAUDRON J: Well, it really comes to the place of the tort.

MR SHER: Yes.

GAUDRON J: And once the place of the tort is identified, at least for tort there is not any further question in this Court.

MR SHER: Well, your Honour is leading me onto something I am about to address. If your Honour gives me a few more moments I will be onto it and I will answer your Honour's question.

Finally, in relation to the question of the new test, I want to make two more points. The first one is, as was pointed out by Justice Samuels in the New South Wales decision of Waterhouse, because the law is statutory in a number of Australian States, and certainly in New South Wales, it is not possible to change the multiple publication rule at common law. It can only be changed by statute. It is at page 537 the actual passage where his Honour refers to this. If your Honours were persuaded by the argument to change the common law, you would have this extraordinary situation in Australia where you would have a multiple publication rule still in New South Wales and Tasmania, and possibly also Queensland, because they are provided for by statute, and a single publication rule everywhere else.

KIRBY J: Unless it has a constitutional foundation which has not been suggested here.

MR SHER: Well, it has not come up thus far but I suppose that is the next case, your Honour, and perhaps it will. But at the moment in Australia we clearly have a multiple publication rule, and what would then happen if the publication took place on a web server in New South Wales and it was published to people who downloaded it in Victoria and elsewhere in the common law States? Would we have a situation in which there was a single publication rule in Victoria and South Australia and a multiple publication rule in New South Wales and what would happen if the web servers were located in different States?

KIRBY J: That is like saying every time there is legislation intrudes into the field of the common law there is no common law for the rest of the country.

MR SHER: No, what I am saying here, your Honour, with respect, is that it would affect the common law in the States where the common law was the governing law but it could not affect the States in which the law of defamation, and this particular aspect of it, the multiple publication rule, was statutory.

KIRBY J: What follows?

MR SHER: What follows is that you would then have, in respect of this country, different choice of law, different rules in relation to multiple publication in different States.

KIRBY J: Well, that may be so. If particular States validly enact legislation, well, they will be governed by the legislation. If they do not, well, the single common law of Australia will cover the particular field.

MR SHER: Well, it is not a desirable state of affairs, we would respectfully submit.

KIRBY J: It just follows from the mix of legal regimes.

MR SHER: The other point that I want to make about the suggested change in the law which is developed at some length by us in our written submissions is the impracticality of this new rule which would render it impossible for plaintiffs to get advice as to whether they had even been defamed because until you find out where the web server is and where the web server who sent the message was located and, depending on what other steps you may have, inquires as to whether it is adventitious or been promoted, or the other exception that my learned friend, Mr Robertson, mentioned in his submissions, you could not even tell your client what the law was and you would not know what the test was to decide whether something is defamatory.

KIRBY J: It is natural that you should look at this from the point of view of a plaintiff, but spare a moment's thought from the point of view of a defendant. They are the ones who are publishing - - -

MR SHER: They are well represented, your Honour.

KIRBY J: We have to look at it neutrally. We have look at it from the point of view of advising the defendant.

MR SHER: Certainly. By all means, your Honour. I am putting it quite frankly and I do not shrink from this on putting the plaintiff's viewpoint. The plaintiff's viewpoint is that - - -

KIRBY J: I say that is not unusual.

CALLINAN J: That is a little different from the way in which it is often put by defendants, who talk in terms of public benevolence and altruism, that the word - - -

MR SHER: And freedom of the press.

CALLINAN J: Six letter word "profit" never mentioned.

MR SHER: Your Honour, in Lenah Game Meats in paragraph [351] described some of the problems facing plaintiffs in defamation cases. If this new rule comes in they will be regarded as the good old days, because this will make it absolutely impossible for plaintiffs to get proper advice, and even, we would submit, to bring a defamation action at all in respect of publication on an overseas publisher on the Internet.

KIRBY J: You seem to have no answer to the problem faced by a person who wants to publish things on the Internet with the potential liability in a number of countries.

MR SHER: We do, your Honour. The answer is to be found in the article in Dicey and Morris, to which your Honours have been referred and the answers are to be found in the article in the Sydney Law Review, to which - - -

KIRBY J: I will plunge into those later.

MR SHER: The answer is a practical one. This is more imagined than real, we submit, the problem is. If you are planning to publish an article about a particular person who your inquiries reveal lives in a particular place, then it is not too much to expect you will make an inquiry about the law in that place. Our submission is that in most cases the Internet publisher will only have to make an inquiry probably about one law regime, maybe two, occasionally three, and it would be a rare instance where the publisher had to go beyond a few legal regimes, and they can buy a copy of Carter-Ruck which will tell them what the law is like in many, many countries, and there are paragraphs on Canada and Australia. They are given separate treatment. I had overlooked that.

Now, can I turn to choice of law, your Honours which, in our respectful submission, seems more difficult than it really is. The starting point, in our respectful submission, is something Justice Gummow said in David Syme v Grey at page 314. If I can take your Honours to that page. This was a complicated case involving jurisdiction, choice of law and probably forum, all of which we concede are separate questions. At page 314 at about the middle of the page, his Honour said this:

There is no compelling reason to suppose that this process of identification and localisation is to be performed in the same way in relation to both jurisdiction and choice of law. The question whether a wrongful act is localised within the forum so as to permit the exercise of a discretion of permit service of process outside the forum is different in character from the question of choice of law, in respect of torts committed outside the forum.

Then his Honour referred to some authority and text, and then made this observation about Cheshire and North:

In G C Cheshire and P M North, Private International Law (11^th ed, 1987), p 540, the learned authors say:

"It has always been questionable whether jurisdictional cases should be used as authority in the choice of law context. It should not be forgotten that a decision whether to grant leave for service out of the jurisdiction is discretionary. Furthermore, whilst a court may be prepared to hold that a tort is committed in several places for the purposes of a jurisdictional rule, it should insist on one single locus delicti in the choice of law context."

And then his Honour continued:

Otherwise, as they point out, the choice of law rule will become unworkable because there will be no single lex loci delicti upon which the choice of law rule is to operate.

We would respectfully agree with those observations and submit that is the starting point for the resolution of a "choice of law" issue.

What his Honour did not mean, with respect, we would suggest, is that you only have one single place if you have different causes of action. What his Honour is talking about is one place for each cause of action. So that - and this case was an example of it - where you have separate causes of action in defamation where there are publications in different jurisdictions and there is a different lex loci delicti in each jurisdiction where it is published, that is not the same thing as saying in each of those jurisdictions what is in effect the tort or the law or the subject matter upon which the "choice of law" decision turns.

The answer to that is to be found, with respect, in something your Honour Justice Gaudron said this morning when one looks to the question which was referred to in Voth of the substantive act of the defendant which gives rise to the plaintiff's cause of action. That focuses attention on the elements of the tort when you are talking about a tort. When you are talking about other causes of action, with which we are not presently concerned, one has to focus attention upon the ingredients of those causes in action. In cases of contract, the question may be a difficult one but in the case of defamation, the question really can very easily be answered because the substantive act of the defendant that gives rise to the plaintiff's cause of action is the publication, from which virtually everything else flows. That is why, whilst this may be a difficult question in some cases, it is an easy question to answer in respect of the tort of defamation.

There is in Voth in a passage at page 568 an important passage in the joint judgment which, in our respectful submission, points clearly to the answer in cases of defamation, even though this passage is not discussing defamation. The passage is at 568 in the joint judgment of the Chief Justice and Justices Deane, Dawson and Gaudron, where their Honours, talking as they were there about the tort of negligent misrepresentation, said this in about the middle of the page:

If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. And the same would seem to be true if the statement is directed to a place from where it ought reasonably to be expected that it will be brought to the attention of the plaintiff, even if it is brought to attention in some third place. But in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking, as laid down in Distillers, where, in substance, the act took place.

That is speaking of negligent misrepresentation or a negligent statement, but of defamation it is absolutely fundamentally correct, in our respectful submission, that when one makes a defamatory statement, it is where it will be received or the place to which it was directed that is the critical issue. Once one accepts that proposition, then the "choice of law" decision is really quite a simple one.

McHUGH J: That follows from the fact that defamation is an action on the case. Damage is the gist of the action on the case and publication takes place and it is the publication that causes the damage.

MR SHER: That is right. My learned friend Mr Walker's point about place of publication and the act of publication itself, so you look at some act of the defendant short of actual publication, really does not come to terms with the main ingredient of the action in defamation. It is a totally false contest. One is not really interested in what it is that has led to the publication. In our respectful submission, it is the fact of publication itself that is the critical fact. Of course, once you move away from that to the sort of approach my learned friend was urging upon the Court, then you have this extraordinarily difficult problem of trying to work out what is the act of publication. Here it is said to be the uploading on the web server, but we have already gone down that path. We have already looked at that issue. In our respectful submission, once it is resolved that just putting it on the web server has not published it to anyone, let alone a third person - - -

KIRBY J: Nor is there any damage except in-house at that point, it is only in Brunswick, no doubt named after the Duke of Brunswick, they have shared that little bit of information.

MR SHER: Perhaps so, your Honour, but - - -

KIRBY J: But there is no damage outside the defendant.

MR SHER: No damage. So, your Honours, we do not quarrel with the proposition that one is entitled in choice of law to look in the case of every tort, where is the substantive act of the defendant that gives rise to the plaintiff's complaint? We say that is a perfectly legitimate approach and the decisions of Spittall v Jackson and Distillers and Voth all lend support to it. What is surprising, however, is that my learned friends seem to be adopting a test that is actually rejected in Distillers, namely the last act and they seem to be saying without actually using these words that it is the last act of the defendant which is the substantive act that has to be looked to here and that has been rejected.

McHUGH J: Is there any evidence about the technicalities of the web sit? I mean, is the article put up there in object code, for example? Is there any evidence about that?

MR SHER: I do not think there was. There was certainly an attempt made in this case to produce a great deal of evidence about the workings of the Internet through the affidavits of experts to try and fill a gap that one apprehends my learned friends might have thought existed in some of the other cases, but I do not think it descended to that level of detail, your Honour.

GLEESON CJ: Mr Walker's argument that the last act of the defendant occurred in New Jersey seems to depend upon a fairly physical approach to the question of an act.

MR SHER: It does and what happens if instead of owning a web server you hire one and you provide - again this may turn on evidence that Justice McHugh has been asking me about and I could not answer it - let us assume it is possible to present to the person who is going to provide you with a web server, assuming you are a small publisher and you cannot afford or do not want to pay for the cost of your own web server, you might have a means of transmitting that material to the person on whose web server your material will be located. Now, what happens then? Does the relevant act of the defendant become not uploading on the web server because it is not their act, in fact, although it is the act that they may have contracted someone else to perform and they may be liable for it? But you start to get involved in difficult factual inquiries and with a change in technology, it may be that you can type your story out on your computer in your office tomorrow and it will be on the web server instantaneously as you do it.

McHUGH J: So is there no evidence at all as to whether or not these articles and these web sites are installed on a silicone chip which probably contains thousands of connected electrical circuits - - -

MR SHER: Can I take your Honour to page 35 of the appeal book. I am not sure whether this answers your Honour's question but this, I think, is about as close as we have, paragraph 17:

McHUGH J: Yes.

MR SHER: Paragraph 17:

WSJ.com is available on six different servers, and therefore so to is "Barron's Online". All of the servers used in WSJ.com are Sun Microsystems, Unix systems equipped with between 1/2 to 2 gigabytes of memory, and several gigabytes of disk space. All the servers run essentially the same web server software. The servers operate applications software which enables the servers to serve material to Worldwide Web users via Internet service providers.

GLEESON CJ: Was there any reason why the six different servers had to be in the same place?

MR SHER: Absolutely none and that is one of the points we make. Indeed, whilst we are talking about this issue, one is entitled to assume that not all publishers will be honourable and they may well choose because they want to be protected, perhaps they have a particularly defamatory material they want to publish, they could locate web servers in a number of different places. There was evidence that when one of the web servers is occupied, the request gets transferred automatically to another web server and, of course, if the web servers are in different locations, different States, or different countries even, how is a plaintiff ever to find out which web server responded to the request, because it is that web server which is the place of publication which is the place which my learned friends say is the "choice of law" jurisdiction?

KIRBY J: The appellant seems to meet this by excluding cases of opportunistic or adventitious - - -

MR SHER: Then you have in your chambers when the client is sitting opposite you saying, "Well, can I sue these people for defaming me?", they will have to say, "Well, we'll have to find out where the web servers are and whether they put the web servers in a particular place for an opportunistic reason or did they promote it there or did they advertise it there?" How is anyone ever to find out? I mean, we would have assumed here - - -

KIRBY J: You present this heart-rending story of them coming to you in chambers but what if they come to you in chambers from the other point of view and say, "We want.....Can we publish?"

MR SHER: The law as it presently stands - and that is our respectful submission of how it ought to remain - enables you to say, "Where this article was downloaded you have to look to the law of that place".

McHUGH J: But anyone who wants to publish in the world faces this problem. It is not really organisations like the BBC or CNN. If Amnesty International get a request from Uganda to send them some literature defaming General Pinochet, well, there is a publication in Uganda.

MR SHER: There is a Canadian case about publication in Uganda and it went on forum non conveniens. They are the points that we want to make in relation to choice of law, your Honours, and, in our respectful submission, the judgment of his Honour was absolutely correct and - - -

KIRBY J: Could you help me why you did not rely on (j), why you put all your eggs in the basket - - -

MR SHER: We did not. We did rely on (j). I, for the life of me, cannot understand why my learned friends are continuing to say this. We pleaded the facts and - - -

KIRBY J: It is said that in the summons you had both and then in your statement of claim you retreated to - - -

MR SHER: Not at all. Quite the opposite. What happened was - - -

McHUGH J: In your writ you had both.

MR SHER: Yes. We issued in relation to the Internet and the endorsement under Order 7 referred only to the Internet. We then amended as of right, pursuant to a rule which gave the defendant the opportunity to come in and object to the amendment if they chose to do so. They chose not to do so. That amendment was made in relation to the print publication. This is all canvassed by his Honour Justice Hedigan - - -

KIRBY J: No, there are two questions, are there not? The first is whether you are only relying on damage within the jurisdiction. That is a real long-arm statute. It is copied from the American.

MR SHER: Yes, we are. No, we are.

KIRBY J: Now, it is said that you did not.

MR SHER: We are only relying on damage within the jurisdiction.

KIRBY J: It is said that you did not plead that in your statement of claim, you did not rely on it.

MR SHER: I do not know why they say that.

KIRBY J: Reference was made to paragraphs 4 and 5. Anyway, maybe at some stage you could send a note in about that because, speaking for myself, I - - -

MR SHER: Not only did we rely on - - -

KIRBY J: That seems to be the simplest basis of jurisdiction and that puts that question right out of the issues.

HAYNE J: Paragraph 127 of Justice Hedigan's judgment, page 560, I thought proceeded from the assumption that not only was damage asserted to have occurred in Victoria but that, as appears at lines 38 and following, your client undertook to sue in no other jurisdiction in respect of the matters which founded this proceeding.

MR SHER: That is absolutely correct.

GUMMOW J: That is the end of forum non conveniens, I would have thought.

HAYNE J: It is not immediately apparent how it is inconvenient to sue in Victoria in respect of damage that occurred in Victoria to the reputation of the plaintiff resident in Victoria.

MR SHER: And in respect of a Victorian matter, namely, the Goldberg.

KIRBY J: If overwhelmingly the case is in the United States, even in this country, Voth required them to go to the United States. I mean, just because they have a cause of action here is not the end of the non conveniens issue.

MR SHER: I am not suggesting it was but, in our submission, the material was overwhelming here. But to answer your Honour's question about damage in Victoria, we pleaded publication in Victoria in - - -

CALLINAN J: Page 19, paragraphs 3AB and 3A, are they not?

MR SHER: Yes. They have published the article in - - -

KIRBY J: That is publication, but what about damage?

MR SHER: Damage was pleaded in paragraph 6 and only having pleaded damage in Victoria and undertaken not to sue anywhere else, and pleaded publication in Victoria and nowhere else, the only damage that could have flowed was damage in Victoria. I have never understood my learned friend saying what they have said, which they had said more than once, and I have never understood them saying we have not pleaded a foreign tort. What we did was we pleaded the facts. If the facts amounted to a foreign tort because publication took place in New Jersey rather than where we said it did in Victoria, then we had pleaded a foreign tort, but you do not - - -

KIRBY J: And (j) allows you to say we do not care.

MR SHER: Exactly.

KIRBY J: We are just looking at the damage in Victoria, wherever the tort.

MR SHER: There is another point about (j) which is a point that your Honour Justice Callinan made in Agar v Hyde in paragraph 116 and that is (j) has work to do when you start doing, as you do in "choice of law" cases, looking at the elements of the cause of action to decide which is the substantive one that gives rise to your cause of action. So, you can have torts committing - the tort being committed in more than one place, so the wording of order 7(j) covers that situation.

McHUGH J: I do not know whether it makes any real difference in this case though, does it, because it is "in respect of damage suffered wholly or partly in Victoria and caused by a tortious act", whether inside or outside the jurisdiction? You rely on the publications causing the damage. So I am not sure - - -

MR SHER: There is no practical merit in this point at all.

KIRBY J: The only thing is it says wherever the tort occurred and we then do not have to worry about where the tort, for formal reasons - - -

MR SHER: My learned friend's point is that paragraph (j) only applies to foreign torts and our answer to that is it applies to torts which are committed either entirely in a foreign place or partly in a foreign place.

KIRBY J: That is how I read it, "wherever occurring".

MR SHER: Well, that is our point, your Honour.

KIRBY J: That means wherever occurring, in Victoria or out of Victoria.

MR SHER: Can I come back to this point that troubled your Honour Justice Kirby at the outset today about no notice of contention? Having amended, as we did, my learned friends raised before Justice Hedigan what they described as their gateway argument which was that our endorsement was bad because at the time it was only endorsed in relation to the Internet.

His Honour dealt with that issue in paragraphs 82 to 85 of his judgment and rejected it. When the matter came up before the Court of Appeal on an application for leave to appeal, the argument was relatively short. The court reserved its decision and came back and gave a short considered judgment. Choice of law was not discussed.

When we got before your Honour the Chief Justice and Justice Hayne on the special leave application we had, at that stage, a draft notice of appeal which was part of the application papers which I have asked to have distributed to your Honours. Your Honours will recall that the case was stood down and counsel went outside and had a discussion about what grounds of appeal would be going forward to deal with the issues that your Honour the Chief Justice, in particular, mentioned, and grounds of appeal relating to the print publication were dropped.

KIRBY J: I think the Chief Justice indicated at special leave that Mr Robertson really had to choose the main points.

MR SHER: And the main point, we apprehended at the time, although choice of law is now looming much larger, was where does publication take place on the Internet? The two grounds of appeal relating to the print publication that were dropped were subparagraphs 3(c) and 3(h). Your Honour will see 3(c) reads:

His Honour erred in failing to find that the place of the commission of the tort of defamation for the purpose of resolving jurisdiction and choice of law problems was New Jersey, for the internet publication, and New York, for the print publication, where in substance the acts on the part of the Appellant which gave the Respondent his cause of complaint took place.

Leave as not given to pursue that ground. Then paragraph (h):

His Honour erred in finding that, if service of the originating process out of Australia was not validly effected within SCR 7.01 for the internet publications:

(i) the endorsement on the writ as served on the Appellant was sufficient to allege a cause of action based on the print publication;

(ii) it was unnecessary to allege a cause of action based on print publication because the print causes of action were covered by the general terms of endorsement.

They were not the subject matter of leave and do not find their way into the notice of appeal. So there is no need for a notice of contention in relation to the print publication.

KIRBY J: So you have an uncontested finding by the primary judge not disturbed by the Court of Appeal that there was publication of print forms of Barron's in Victoria which, whatever the Internet situation, gives you a leg in the door of Victorian jurisdiction.

MR SHER: Exactly. More than that, we alleged then, as we did today here, that the small number of print publications was not to the point because two at least of the five were two very important people. There was evidence of that. It was in the affidavit material. So your Honour Justice Kirby has caused me no little amount of worry over this question of no notice of contention, but that is the answer, your Honour. In our respectful submission, none was needed.

KIRBY J: But does that mean that one could just deal with this case and forget the Internet and just say there was publication in Victoria and we all save up the Internet for another day?

MR SHER: No, we have all come here with Mr Walker's 18 clients. We have all come here to argue this question about - - -

GLEESON CJ: Not only that, but the discretionary considerations that would have been relevant to Justice Hedigan would have been quite different if there had been no Internet publication.

MR SHER: That is so.

GUMMOW J: That is right. If you are dealing with a forum non conveniens argument, you really have to work out what the lex loci delicti is.

MR SHER: Exactly. Indeed, that is said to be in many of the authorities, and his Honour deals with them in detail, that that is the natural forum. I was about to say something very shortly about the question of forum. We deal with it in our submissions in paragraph 39 and the appellant deals with it very shortly in their submissions in paragraphs 53 to 56. The issue between us is a fairly limited one. The submission we made in paragraph 39 could not be more succinct, which is the point your Honour Justice Gummow just made. My learned friends dealt with it in paragraphs 53 to 56.

KIRBY J: In Zhang it was the unanimous view of the Court, was it not, that the law to be applied was the law of France?

MR SHER: Yes.

KIRBY J: But the forum, though that would not perhaps be a natural forum and in my view was the natural forum, notwithstanding that, because of the rule of the Supreme Court and/or the way we framed the common law rule in Australia, that was not determined. That was not final; the matter could still go ahead in Australia.

MR SHER: It is not unheard of to have an action tried in a jurisdiction which applies foreign law. It happens. But the cases to which his Honour referred in some detail in his judgment in paragraphs - his Honour dealt with this at considerable length, I might say, and I will come to that in a moment. They emphasise the natural forum is the lex loci delicti. My learned friend's complaint about choice of law was really an acceptance, we would submit, if you read paragraphs 53 to 56, but the issue between us was: which is the lex loci delicti.

My learned friends went on to argue before Justice Hedigan that the lex loci delicti was New Jersey or New York, but mainly New Jersey for the Internet, and that therefore ought to be the forum because, once you applied the laws of New Jersey, a whole raft of issues came up that would not come up in an Australian case. They then had this enormous list of potential witnesses to call, which they said made the convenient forum New Jersey, all based upon the premise that all these issues that they wanted to articulate in the case would be issues in the case. Once it is decided that the lex loci delicti is Victoria and the Victorian law is to apply, just about everything that my learned friends argued ought to be taken into account on this issue can be disregarded.

Your Honours should know, and we have provided you with a copy of this additional material, that two weeks ago Justice Bongiorno heard an application by both sides to strike out each other's pleadings. Our attack upon the defence was that it raised a whole raft of issues that should be struck out. For example, they pleaded Lange qualified privilege and we said in relation to the Goldberg allegations that they were not a political or government matter. They pleaded it was a fair report of court proceedings and our answer to that is it did not purport to be a report of court proceedings. They pleaded a series of variations of true meanings that they were going to seek to justify based upon the English case of Polly Peck as affected by the Court of Appeal decision in Victoria, Hore-Lacy, all of which we said should be struck out because they raised issues that were more serious than, and substantially different from, the issues of which the plaintiff complained, matters to which your Honour Justice McHugh and Justice Brennan referred to in Chakravarti. Now, his Honour reserved his decision and we will get one in due course. Our submission simply is this, that so far as the plaintiff's case is concerned, this has really nothing to do with New Jersey at all, nothing.

So far as the defendant's case is concerned, most of its arguments were based upon the premise that there were going to be all these issues argued which had to do with what happened in New Jersey, because if you apply New Jersey law we can run all these issues. They virtually led no evidence at all about the question of what evidence they would call in relation to the Goldberg allegations in Victoria. They have not pleaded that they are true. They are not going to justify them. To take a point your Honour Justice Gaudron mentioned earlier, it is only at the time of the defence that some of these issues arise. So when you are talking in terms of choice of law, it is the plaintiff's cause of action that one addresses.

In relation to the complaint about forum non conveniens, most of the defendant's arguments just fell by the way because the issues they sought to raise are not going to be raised. Now, their one big point was we have alleged in the particulars of aggravated and punitive damages that the publishers were reckless in relation to the publication of certain material. They say, "That's the O'Sullivan v New York Times issue. It is all going to involve calling all these witnesses from New York." The answer to that is it will not because the pleading, if one looks at it carefully, is directly tied and only tied to the Goldberg allegations. We say they were reckless in relation to publishing the Goldberg allegations. Now, if they are going to call any witnesses at all on that issue, they will surely be limited to one or two people from New York, namely the author who might give evidence as to the inquiries he made and the searches he undertook, and perhaps the editor. It is hard to imagine that anyone other than that would be called on that issue.

Now, your Honours, the judgment discusses the question of forum non conveniens at length. The passages commence at paragraph 99 which is at page 538 of the appeal book. They continue through to paragraph 131 which is at page 562 of the appeal book. His Honour referred to the cases of people suing in respect of jurisdictions in which they have no reputation such as Wyatt v Forbes, which I have mentioned earlier. His Honour discusses Oceanic Sun Line, Voth, Henry v Henry, all the relevant cases. At the end of the day what his Honour was doing was exercising his discretion which, in our respectful submission, has not been shown on any basis to have miscarried.

GUMMOW J: Now, on this hypothesis of the stay application, one has reached the stage that the tort is committed in Victoria, I think. It is for the other side who is moving, I guess, to point to some vexation or oppression and so forth, in trying that cause of action in Victoria rather than in New York or New Jersey.

MR SHER: They listed 12 bullet points, your Honour, which were all discussed in the judgment.

GUMMOW J: But did they go to the question at all as to whether this cause of action, if sued upon in New York or New Jersey, would be treated as one governed by Victorian law? In other words, any evidence as to the "choice of law" rule?

MR SHER: Quite the contrary. Their case was that it would be determined according to New York law - - -

GUMMOW J: Yes, I wonder if that is right.

MR SHER: - - - New Jersey law.

GUMMOW J: Probably on the hypothesis that it is a New Jersey tort but on the hypothesis we are looking at, it is not.

MR SHER: I do not think they put in any evidence as to that.

GUMMOW J: No, that is what I thought.

MR SHER: It was all on the first hypothesis. Indeed, your Honours, whilst they descended into a considerable amount of detail in relation to the names of a lot of witnesses, they never explained what they would give evidence about. Some coming from Israel, for example, it is hard to imagine they would have anything to do with the case that will be tried on the current pleadings.

I would only be repeating what Justice Hedigan has done, in our respectful submission, so thoroughly and well, if I repeated all the points that his Honour makes in his judgment in those passages. His Honour dealt with everything they raised and addressed it, and there is no ground of appeal to which specific attention has been directed thus far pointing to some miscarriage of that discretion other than the question of choice of law and place of the tort. That was the battleground that we fought it on, effectively, before Justice Hedigan, coupled with all these factual allegations and, in our respectful submission, his Honour exercised his discretion perfectly properly. Now, they are our submissions, your Honours, unless there is any matter - - -

GLEESON CJ: Thank you, Mr Sher. Yes, Mr Robertson.

MR ROBERTSON: Your Honour asked about the subscriber agreement. We have had a look at it. The position seems to be that it is implied from the very meaning of "subscriber". We have put on an American dictionary in which the word "subscription" is defined as the right to receive a periodical for a sum paid, usually for an agreed number of issues, and the very fact that it is a subscription agreement would carry that implication.

You asked about whether you could subscribe to Barron's in print, you certainly can and, if you do, I think you get a cheaper wsj.com subscription. So far as the name and address having any significance, you can see from the logs at page 411 that that is not, in fact, the case. The information that, if you like, are received and logged at the server in relation to uploadings of this article, at 411, just as an example, at line 40 you see that particular article was obtained by "billclintonscat", which is obviously the user name that that particular subscriber gave. Of course, by giving the location of the subscriber's ISD or, indeed, the location that the subscriber himself or herself gives for an address will not necessarily be accurate.

It is explained at page 329 by Dr Clarke. Page 329, line 30 gives the technical explanation of what is happening there with the Internet Protocol address not necessarily indicating the geographical location of the request because, as he says at paragraph 7:

Blocks of IP-addresses are issued to Internet Service Providers (ISPs), who then make the addresses available to their clients.

HAYNE J: What, if anything, can we make of the lists of names that appear at 446, 447. What does the evidence reveal about their significance?

MR ROBERTSON: At 446 - well, they are the passwords or the names that are given because, if you give your own name, it may well be the same as someone else's name who is already registered. So, Mr Michael Gill at 51 gets up because it is "michaeljgill". We have others choosing "goodguy", "FIRSTSTATE" and so on.

HAYNE J: They had in mind 35 and 36 and perhaps 37.

MR ROBERTSON: Yes, 35 and 36, a well-known Australian broker with offices in New York, Chicago and so forth. So, it could be J.B. Were coming in or making the request from the Chicago office, the New York office or whatever.

I think while we are on the technical evidence, Justice McHugh asked about the evidence relating to the technical delivery and I think that can be found at page 158 in the affidavit of Mr Hammond. It begins at 154, this is the expert who explains at 154 paragraph 21 the architecture of the Internet. At page 155 at line 45 he explains that:

An IP address does not indicate in itself where a computer is physically located.

He then deals with what happens at page 158 at 45, line 15. The web server operation is described and at page 161 paragraph 63 at line 15:

Once a web page has been made available on the Internet, the Web server computer operates independently of the Web content provider . . . Users' computers may be physically located -

that the is the "pull" and the "GET" message and so on. So there was quite a deal, it goes on to page 164. There was very detailed technical evidence explaining just what is happening.

McHUGH J: It is descriptive but I prefer looking at it in a greater level of technology. I assume there is a silicone chip there with circuits which are connected which can no doubt be seen with an electron microscope but which cannot be seen by the naked eye and they are activated by electrical impulses but I assume that there is nothing up there in what is called hard copy in other contexts.

MR ROBERTSON: I am invited to say that at page 225 there is a more detailed description of what is actually happening at the server. There is also, of course, the statement by Mr Sichler that what happens, and it is at page 37 at line 20, that:

There is a pattern to subscriber access to "Barron's Online". Subscribers log in en masses on Saturday morning to see the new edition -

So once it goes up on the server, it has hit a lot and the hitting tails off over the next week. That is what happens when it is put up, but it is sensibly published at that stage because it is made available with the intention that it should be accessed.

KIRBY J: In Victoria.

MR ROBERTSON: Everywhere in the world.

KIRBY J: But in Victoria, which is our current question on question no 1, jurisdiction.

MR ROBERTSON: Yes. We do not exclude. We cannot exclude that under, if you like, the reasonable foreseeability test in Wyong that the publisher who puts it up recognises that it might be accessed in Victoria. There are several hundred subscribers in Victoria and anyone in Victoria can go straight to it, so there is no issue on that score. The issue that we argued below was on the definition of publication. I think the argument is set out in our case that as Justice McHugh said liable emerges from the star chamber as an action on the case, you have publication but then you have to show it is a publication to a third cases and most of the cases are concerned with whether a servant or a wife or an agent is a third party.

KIRBY J: But your argument seems to headlong into that history of the tort because it is when the damage is done that the tort occurs and no damage is done simply by uploading. Damage is done when the uploading comes to fruit in downloading. That is the combination.

MR ROBERTSON: That is because damage is gist. The tort is completed at the time that a third party comprehends the work but that does not make the time or the place of publication the point of comprehension. If I buy a book at Tullamarine, a book with 300 hundred pages where there is a libel on page 100 and I do not comprehend that libel until I read it at home in Sydney, say, at 8 o'clock at night, having brought it at 5 o'clock, but, sensibly, it has been published, to me - the act of publishing is that of the bookseller who publishes it in Victoria at 5 o'clock.

McHUGH J: It may be that there are some exceptions to the general rule where questions of statutes of limitations and jurisdiction is concerned and I mentioned those when I gave on a judgment on the stay application in this matter. I thought that you might seek to renew a case within those exceptions but there are - tend to strike out on new ground.

MR ROBERTSON: Yes. It is not new because, with respect, when the courts first considered - because place and time of publication were never relevant in the old cases until the case of Burdett came up in 1819 when venue in libel - this happened to be criminal libel - became central.

McHUGH J: I am very familiar with that case. We have it. It is referred to quite often in our criminal jurisdiction.

MR ROBERTSON: Yes. Indeed, it is - I think the copy that I have says that it was followed indeed by your Honour in terms of a case that stood for several hundred years and has never been doubted. That, I accept was a different point but if I could just show your Honours the passages in Burdett where the judges look precisely at this argument for the first time, "Is the place of publication the place where the words were made available or was it the place where they were comprehended?" and each of the judges excludes very carefully after a very comprehensive discussion the place of comprehension. I can just show you the passages at 885, if your Honours have the English reports. It begins in the first full paragraph:

But supposing it to have been sent by the post, my opinion is, that such a sending of it amounted to a publication. It is assumed -

for the argument:

that publication means a manifestation of the contents. I deny that such is the meaning of the word publication. In no part of the law do I find that it is used in that sense. A man publishes an award, but he does not read it. Again, he publishes a will -

and so on.

So in the case of a libel, publication is nothing more than doing the last act for the accomplishment of the mischief intended by it. The moment a man delivers a libel from his hands his control over it is done; he has shot his arrow, and it does not depend upon him whether it hits the mark or not.

And so forth, and then the example of the libeller in a foreign country is given, who will not go to the foreign country to be punished there. It continues until the end of that page and, indeed, over to the next with a good deal of Latin learning about the civil law. The point is made by the next judge at page 891, the final paragraph:

But whether it was sent away or parted with by the defendant in Leicestershire, open or sealed, makes, in my opinion, no difference with respect to the question, whether it was, in point of law, published in that county or not . . . it is laid down, that a scandalous libel may be published traditione, when the libel, or any copy of it, is delivered over to scandalize the party. So that the mere delivering over or parting with the libel with that intent, is deemed a publishing.

McHUGH J: But are these cases not, such as Burdett and other similar cases, consistent with the proposition that publication takes place where the defamatory material is received and was, or could be, read and comprehended? So, if I take delivery of a book in Wagga containing defamatory material and take it across the border to Albury and read it there, the publication takes place in New South Wales, does it not?

MR ROBERTSON: Correct.

McHUGH J: Yes.

MR ROBERTSON: The final passage is at 897 at the last full passage. That understanding of publication as the act being complete on delivery was the understanding, certainly, by the time of The Duke of Brunswick, in civil libel. If I could take your Honours to The Duke of Brunswick's Case, a case in which we were in the awkward position of both approbating and reprobating, because it is the foundation, insecure, we say, of the multiple publication rule. Your Honours see that it was a case where the libel was first published in 1830 and the Duke sent his servant, some 17 years later - I think over the page at 187 you get the facts on the trial before Lord Denman. The publication was proved. It was proved that:

two copies of the newspaper containing the libel . . . were produced. It appeared to have been published in 1830. One copy was from the British Museum -

where, presumably, it had been lodged by law -

The other had been purchased . . . in 1848, at the newspaper office of defendant, by a witness who, on cross examination, stated that he had been sent by the plaintiff to make the purchase, and had handed the paper, when purchased, to plaintiff.

There was no evidence that he had read it or comprehended it. Sir Frederick Thesiger moved for a new trial, saying:

This being a civil action, in which the plaintiff complains of being injured by the publication, no publication which he has intentionally caused can support the complaint.

It was suggested that by sending his servant to procure the publication he was, in effect, publishing it to himself. Then the judgment is about 12 lines from the bottom of that page:

It appeared that the publication relied on was a sale of a copy of the newspaper to a person sent by the plaintiff to procure it, who, on receiving it, carried it to the plaintiff. It was said that this was a sale to the plaintiff himself . . . And, in some sense, it is true that it was a sale and delivery to the plaintiff; but we think it was also a publication to the agent. The question arises as on a plea of not guilty in an ordinary case -

which brings in the criminal law and Burdett -

The defendant, who, on the application of a stranger, delivers to him the writing which libels a third person, publishes the libellous matter to him, though he may have been sent for the purpose of procuring the work by that third person. So far as in him lies, he lowers the reputation of the principal in the mind of the agent, which, although that of an agent, is as capable as being affected by the assertions as if he were a stranger. The act is complete by the delivery: and its legal character is not altered, either by the plaintiff's procurement or by the subsequent handing over -

So that that approach seems to echo, and in civil libel the approach in Burdett, that the act is complete by the delivery. Incidentally, of course, we say that this case is a very insecure foundation for the single publication rule, but that, of course, is another point.

So far as the definition of "publication" is concerned, Sir Samuel Griffith, when he came to reflect, as we say, the common law in his Queensland Defamation Act 2002 of 1889, we set out at paragraph 35 the definition that he used there:

exhibiting of it in public, or causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with a view to its being read or seen - - -

Now, in so far as that reflects the common law through Burdett, Brunswick and so forth, and of course the common law changed for secondary publishers with the bookshop cases. That is entirely appropriate, we say, for the act of putting this copy on the Internet for uploading knowing, as Mr Sichler says, that on Saturday morning a lot of subscribers are going to log on. That is a form of delivering it with a view to publication. That is the critical act of which the plaintiff complains. Mr Sher, my friend, talks about the difficulties for the poor old plaintiff. This plaintiff had no difficulty in going immediately to New York lawyers and making his complaint there. But that is the critical act that would, we say, be appropriately characterised as the original publication.

Now, if making the copy available with a view to it being accessed and ready by whomsoever is the act of original publication, the act of, if you like, the actual individual accessions are committed in the way the expert evidence describes of the person who wants to read, wherever they are - most of them, one assumes, are in America but wherever they are - sending their electronic messages, which are called "request messages" or "get messages" to the server in New Jersey. If the Duke of Brunswick had been an Internet accessor in Victoria his servant would have been the request message which zigzagged its way across the Pacific and got to the server in New Jersey and pulled - by way, I suppose like a photocopy, took a photocopy of the page and brought it back to Victoria.

KIRBY J: That is why I think this is such an artificial foundation for deriving a rule nowadays from a case that had no conception of the Internet. Looking into that, it just seems a very uncertain basis for finding what is the rule in this very new, unique, different form of communication.

MR ROBERTSON: As Your Honours will appreciate, it is of course a rule that was condemned for print publication by the Australian Law Reform Commission in its report, "Unfair Publication". It was condemned by Justice of Appeals Samuels and other members of the Court of Appeal. It is a rule that has no secure foundation because it was a point essentially on whether sending your servant to procure an article is publication to a third party.

KIRBY J: More secure is the fact that you do not have any damage until you download, and here you download inter alia in Victoria.

MR ROBERTSON: You do, by sending your electronic messenger to New Jersey, and in looking realistically Voth, we say, is important here because it talks about a common sense, looking back to see where the substantial act occurs. Cutting through the artificialities that may have come from the horse and buggy days of English libel law, the reality is that the uploading is the act which makes this material available to the world, and that is the defendant's act of which the plaintiff complains.

KIRBY J: No common law country has adopted that principle.

MR ROBERTSON: America adopted it long before. In fact the American cases begin just after the Second World War, Ogden - - -

KIRBY J: Talking about in this context of the Internet.

MR ROBERTSON: Yes, Van Buskirk and Firth are the two cases that we mentioned in our case, where the single publication rule has been found to be essential for the Internet. Indeed, in Van Buskirk and in Firth the courts say that the multiple publication rule would be impossible in relation to the Internet. They are two cases, I think both of them from New York.

So, your Honours, the issue of place and time of publication and the importance that the learned judge gave to the comprehension is, we say, artificial. Even accepting the multiple publication rule, looking at each of the publications that occurred in Victoria, they occurred as a result of something done in New Jersey and one cannot get away from that. To look only at the elements of the cause of action by way of Victorian libel law is unsatisfactory, it is to put the defamation law cart, so to speak, before the private international law rule horse. What the learned judge was doing, in effect, was to solve all three issues by identifying the place of publication. I think he makes that clear.

Our objection to his judgment is that he never dealt with choice of law at all. It was a very important part of our argument on the question of forum that because the lox loci delicti was New Jersey, that would make it more appropriate or it would make the Victorian tribunal less appropriate. He did not deal with that. He gave our other argument, I should say, because I do not think this came across from my learned friend's presentation of the forum - we were saying that if we lost the jurisdiction point and if we lost choice of law, that trial in Victoria would be manifestly unfair and unjust and, as we put it, Voth oppressive because we - - -

GUMMOW J: Try in Victoria rather than where?

MR ROBERTSON: Rather than New Jersey.

GUMMOW J: On the assumption that New Jersey is trying a Victorian cause of action?

MR ROBERTSON: No, on the assumption that New Jersey would apply the single publication rule to give damages for publication everywhere in the world including Victoria.

GUMMOW J: Now, at first, the single publication rule started off inside a State, did it not?

MR ROBERTSON: It started off - - -?

GUMMOW J: Within a State and at some in the United States it crossed borders and that has caused great trouble for conflicts theory, has it not, in the United States?

MR ROBERTSON: Yes.

GUMMOW J: You want to cross it internationally, do you not? You want an international single publication rule?

MR ROBERTSON: Yes, we We want a global tort.

KIRBY J: That favours very much American law, does it not?

GUMMOW J: Yes, without a global court, it is just a - - -

MR ROBERTSON: It may be that the court of trial becomes a global court if it is applying - - -

GAUDRON J: Yes, exactly.

MR ROBERTSON: - - - if it applies the rule of the publisher's domicile.

KIRBY J: It is a burden for the New Jersey and New York courts to assume. One would think they might like to share this burden?

MR ROBERTSON: It is not a burden, with respect, because they are giving damages to the plaintiff and this is an advantage for the plaintiff. There are a number of advantages to the plaintiff for the lex loci delicti being the law of, shall we - in short form, publisher's domicile - - -

KIRBY J: This tender concern to the plaintiff does not seem to be borne out by the State of American defamation law.

MR ROBERTSON: That is, with respect, not so. It is dealt with by Laura Handman in her affidavit. There is a popular conception that American defamation law is tilted to defendants. There is an article by Professor Anderson that we have mentioned in our case which says that this is just not so. There is far more worry in America about defamation in newspaper offices and so forth because of the massive damages that can be obtained and because of the need to show that you are not reckless.

So there are two views on the question of whether defamation law in American is plaintiff friendly or not, but the attraction in principle for the plaintiff of going to the place of the publisher's domicile is, firstly, that law - assuming it to be a civilised law - will provide its own means of speedy redress and suitability.

I mean, in Europe, you have declarations of falsity and rights of reply that can be used instantly. In America, we saw the offer of correction and a right of reply, and we saw the principle of good journalism in America dictated by the law that you actually put the allegations down first.

Other countries have other provisions for assisting the plaintiff, but the way they will bite on the publisher in the publisher's domicile. So that is the first attraction for the plaintiff in going to where the publisher is.

The second attraction is that if the plaintiff wants his home State trial, very often he gets it under our formula because he is brought in, because the plaintiff suffers damage in his home State, therefore home State has jurisdiction. Choice of law, if the publisher has produced according to his foreign State then the choice of law is the foreign State, but - - -

GAUDRON J: Now what is the jurisprudential basis for that? First of all, is the single publication rule a "choice of law" rule, and if so what is the jurisprudential basis that has been assigned to it? I mean, I could understand it as a venue or forum non conveniens rule but is it really a "choice of law" rule?

MR ROBERTSON: It is appropriate for choice of law, in our submission. It is a position that the common law has taken - - -

GUMMOW J: It did not start off life as a "choice of law" rule. That is what I was putting to you.

MR ROBERTSON: I think it started life - and I need to check. I cannot recall whether it was because of an interstate - I think Keeton v Hustler - but there was certainly a number of cases which in the early stages were limitation cases, and I would need to check Hartmann, Keeton and Ogden which would provide the answer, because they were the cases in 47 and 48 where the single publication act rule was - but Dean Prosser in his dismal swamp article, that we have put on the list, the famous 1953 article in the Michigan Law Review, certainly argues that it should be a "choice of law" rule.

GAUDRON J: But, I mean, if it is not a "choice of law" rule for defamation in New Jersey, and I do not think your evidence goes so far as to say it is, then we may simply be buying the problem that Justice Gummow adverted to where New Jersey will have to decide what the true "choice of law" rule is, which may bring it back to Victoria which would be largely an exercise in futility. And if it is a "choice of law" rule, I am very interested to know what its basis is - I mean, what is its theoretical foundation?

MR ROBERTSON: It is certainly part of the law of New Jersey and of New York, the single publication rule.

GAUDRON J: But for what purpose? It may be for the purpose of anti-injunctions perhaps to restrain multiple proceedings? I mean, who knows.

MR ROBERTSON: Most of the cases are either, from my recollection of them, on either Limitation Act points or choice of law, and sometimes both.

GAUDRON J: Choice of law or choice of venue?

MR ROBERTSON: Choice of venue between different States which, although they all have the United States constitutional protections, may have some local differences in limitation periods.

GAUDRON J: Perhaps you could give us a further note about it, if you could possibly, Mr Robinson.

MR ROBERTSON: Yes, if I could by maybe Friday at lunchtime send in your Honours a separate note on the - - -

GUMMOW J: There is also a recent decision of the English Court of Appeal called Loutchansky v The Times. Have we been taken to that in the submissions?

MR ROBERTSON: Yes. We referred to it in our case. It is a decision of the Court of Appeal last year.

GUMMOW J: [] 1 All ER 652.

MR ROBERTSON: That is right.

GUMMOW J: Is there any application for leave to appeal to the House of Lords in that?

MR ROBERTSON: Yes, there was.

HAYNE J: And leave was refused, as the Times was rather quick to publish, without reasons. Leave was refused without reasons.

MR ROBERTSON: Leave was refused without reasons about three weeks ago, I understand. The position in Loutchansky is interesting because it was argued that the single publication rule should be the rule for the Internet because the common law should evolve to protect archives. The Court of Appeal said, firstly, the Duke of Brunswick's Case is too entrenched in our law to change it. That was the basis of the Master of the Rolls decision. Secondly, the particular question that was posed in Loutchansky [No 2] could have been solved by, he said, using the technology of the Internet, the hyperlink, to explain to the accessor that this particular article had been sued upon for defamation. That would remove the sting.

It was a case where the Times had left a defamatory article on its archive and the Master of the Rolls, having said he was bound by The Duke of Brunswick's Case, then said the Internet - as far as archives are concerned, he said archives are not very important, which is a position that would not appeal, I suspect, in this jurisdiction, but it certainly compared with news, but he said the Internet has its own way of dealing with it by removing the sting, ie, leaving the defamatory article on the web site with a hyperlink saying that its truth had been contested. But that is, I think, the only assistance that your Honours will get from Loutchansky.

KIRBY J: It seems very small assistance, given that once you get into the Internet everybody can download it and circulate it in their own systems and along their own networks and to their own connections. It just goes on and on.

MR ROBERTSON: It may be of interest for your Honours to see Lord Leicester's argument which is set out in some detail, but it was met quite flatly with the reference to Berezovsky which had said that so far as print publication is concerned The Duke of Brunswick was too entrenched to change. It was by reference to that that the Master of the Rolls assumed that applied to Internet. Can I deal with - - -

GAUDRON J: Before you go, Mr Robertson, can I, having thought about this single publication rule a little bit more, it seems, at least, a logical possibility that it started life as a rule relating to damages, proving your damage and if that be so, it would seem logical, therefore, that it could be relied upon by courts in other jurisdictions to stay proceedings in those courts as vexatious and, additionally, it could perhaps be relied upon to get anti-suit injunctions in the forum or to extract undertakings of the kind that were given in this case. That makes it something equivalent to a rule relating to vexation.

HAYNE J: And, indeed, Dean Prosser in the article you refer us to at page 962 at about line 12 seems to suggest, perhaps, that it is rooted in concepts of vexation.

MR ROBERTSON: Well, certainly the cure for the multiple publication rule that the courts of this country and other countries have used to mitigate the problems have been the inherent power to stay actions for abuse of process, multiple actions, have been the rule that you cannot collect for more than one lot of damages and rules of that sort.

GAUDRON J: But that does not make it a "choice of law" rule.

MR ROBERTSON: No, it does not, but it does mean that the - - -

GAUDRON J: Which you want to make it, in a sense, or you want something very similar to a single publication rule as a "choice of law" rule.

MR ROBERTSON: We say that that might certainly apply in relation to the Internet defamation. What we do contest, however, and I should make this correction, my learned friend said that American courts do not adopt this approach at all to foreign courts. I should cite to your Honours the case of Desai v Hersh just to show what the reaction of American courts had been when foreign plaintiffs have come in touting their own law. Mr Desai, of course, was the Prime Minister of India who sued on a book that was published in both India and America and he claimed damages under Indian law, which was akin to British common law, as well as under American law.

The discussion as to whether the First Amendment could have an extraterritorial reach is quite interesting, although it was only a District Court case. The passages that we would rely upon are those at - in fact, you can see from the headnote 5:

For the purposes of defamation suits brought in United States courts, First Amendment protections do not apply to all extraterritorial publications . . . only where speech published in a foreign country is about a matter of public concern in United States can First Amendment protections "spill over" our borders.

Then at 6:

In instances where plaintiff is a public official or figure . . . apply to domestic publication, those same protections will apply to extraterritorial publication of same speech where the speech is of a matter of public concern and publisher has not intentionally and directly published the speech in the foreign country in a manner consistent with intention to abandon First Amendment protections.

At page 679, on the right-hand column, where the court accepts that if the publisher - and this, of course, is in relation to a book - had gone out to exploit the foreign market - and one finds that halfway down - then he would not be able to obtain First Amendment protections.

GUMMOW J: This is one decision of a District Court judge in the United States. Is there any other courts of appeal decisions?

MR ROBERTSON: There is a discussion of this decision by Mr Justice Chasanow, in the Maryland Supreme Court in Telnikoff v Matusevitch, and we set that out in our case. We rely on Mr Justice Chasanow or cite Mr Justice Chasanow's approach, although it was a dissenting judgment.

GUMMOW J: There is endless writing on the First Amendment in the United States. There must have been a lot of scholarly writing about this question.

HAYNE J: And a lot of writing.

MR ROBERTSON: There is a lot of writing, your Honour. Just how scholarly it is and how much further it takes us from Dicey and Morris - quite frankly, the Internet and the problems - - -

GUMMOW J: No, not worrying about the Internet. This question of the First Amendment's application to, what one might say, its foreign affairs. There must be a lot of writing on that.

MR ROBERTSON: Well, your Honour, we will search the Net again but I think that you will find that apart from Desai - and there is a case that is referred to in Desai where the President of Nauru sought to sue in Guam - that they are the only two cases that we are aware of where this problem has been discussed.

HAYNE J: Just to take you back a moment to the single publication rule and its influence on "choice of law" issues, whether it is to be given effect to may be affected by the fact that Anglo-American and Australian conflicts rules have resolutely set their face against any notion of dépeçage, any notion of splitting issues and assigning different applicable laws to those issues. If you apply a single publication rule, do you say the consequence is you end up with a singular applicable law as the law of the cause which necessarily, therefore, fails to give any account to any consequences that other law districts may assign to events that have occurred within that law district?

MR ROBERTSON: It gives those consequences where the events that have occurred are the result of the defendant's direct activities, when the defendant goes to the law district to advertise or promote and so as to instigate downloadings. That displaces, if you like, the global approach because he has abandoned or waived the First Amendment, in the case of an American. We say that the single publication rule applied to the Internet gives the most rational result because it enables all the damage to be taken into account.

Could I use my last two minutes to reply to the point that I think Justice Gaudron put to me this morning and put to Mr Sher, which he eagerly accepted, namely that a rule that required the publisher to look only at the places where the person he mentions has a reputation would be not too much to ask. Your Honour, I would only instance Cocoa Cola and Kylie Minogue or Mr Wolferson or Leyton Hewitt or BHP or Rupert Murdoch, there are now powerful people in this world who have reputations in many countries. In fact there is a recent decision of the English Court that you do not need a reputation in England. It was Colonel Gadaffi's son, who had never been written about or known about, but when a defamatory article was published the court said, "Well, he did not have a reputation before, but he has a bad one now, so he can sue."

CALLINAN J: Well, damaged is presumed, is it not, in defamation?

MR ROBERTSON: Yes.

CALLINAN J: That is really a function of that rule, Mr Robertson.

MR ROBERTSON: That is right, but to require the publisher to check up by hiring lawyers in five or ten countries where your international public figure has a reputation and could sue - the plaintiff here could have sued in any Australian State, in Israel, in England, in Tuvalu - whereas many steps have been taken to legal the article and ensure that it complies with the law where the publishers operate, that is too much to ask. It was regarded by the English Courts in the late 19^th century as too much to ask of subscription libraries and booksellers and so it is too much to ask if the principle of free speech is to be supported. Your Honour Justice Callinan spoke of the profit that publishers make, but we are here - - -

CALLINAN J: I am sorry for raising that word.

MR ROBERTSON: No. Let me deal with it quite brutally. There are 300 subscribers who pay $59 for the right to subscribe to this valuable business web site. That comes in at about $US18,000 and of course there are a lot of deductions, so I guess about $12,000 is accrued from Victoria.

CALLINAN J: No doubt that will be put very persuasively to a jury in Victoria in due course when it comes to assess the damages.

MR ROBERTSON: Your Honour, in terms of a hard-nosed publisher in America with that sort of figure saying, "Well, if Justice Hedigan's judgment says we can avoid massive legal costs of being sued in Victoria simply by not taking Victorian subscribers or by erecting a firewall, but it won't work, let's do it." That is the, if you like, the hard-nosed money man, in making these decision in America about publications that - - -

CALLINAN J: I cannot believe that American corporate lawyers and defamation lawyers would not have fully assessed those matters. It is inconceivable to me that that has not been done.

McHUGH J: If I remember rightly, did not the United States Supreme Court in Herbert v Lando criticise or reject the notion that there was a chilling effect on publishers?

MR ROBERTSON: I do not think they did that. The House of Lords in Derbyshire accepted that there was a chilling effect on publishers by libel actions, as your Honour said in Theophonous. But the danger is that publishers may - if the rule for the Internet encourages publishers, as the present judgment does, to refuse subscribers from particular law areas where the law may be very different to the area by which the article has been prepared - - -

GAUDRON J: They will not have many people subscribing outside America. I mean, if you are right, they will be talking to themselves.

MR ROBERTSON: But that would be - - -

GAUDRON J: So be it, that is not a choice they are going to make, they want - - -

KIRBY J: It is going to be hard for them to contain it, anyway.

MR ROBERTSON: That may not be in the Australian public interest where the latest object of the Electronic Subscription Act is - - -

GAUDRON J: It will not be in American interest either. As a practical matter, it will not be in America's interests either.

MR ROBERTSON: Your Honour, there it is, if I can put it this way, and I hope what I put is a neutral way and fair way that that would not be the universal solution that Lord Bingham indicates has to be found to this problem everywhere to encourage any area to log off.

GUMMOW J: Yes, but you want to find the universal solution at the top. There are various possibilities at the other end which you do not want to get into.

GAUDRON J: Indeed, if you move your single publication to the other end so that a plaintiff who has sued in one jurisdiction which accepts jurisdiction should not sue elsewhere, there is a lot of basis for it, not only in the law of damages but perhaps in notions of Anshun-type estoppel and, as I put to you earlier today, there may well be a necessity for things to change at the other end by reference to the Internet, but why at the front end?

MR ROBERTSON: The answer that I made is that on the - - -

GAUDRON J: That is a policy decision. You make that argument by reference to policy rather than by reference to legal principle?

MR ROBERTSON: By reference to policy and to comity.

GAUDRON J: Comity is a funny word.

MR ROBERTSON: It is.

GAUDRON J: I mean, really, we know that judges of various countries use it when they want to.

HAYNE J: Before they apply the law of the forum.

GAUDRON J: Yes, and, for example, it is patently clear, I should have thought, that notwithstanding the apparent difference of wording in relation to forum non conveniens, the probabilities are that throughout the common law the results are pretty much on a par.

KIRBY J: I am not sure about that.

MR ROBERTSON: Your Honour, at this hour of the day I will not detain your Honours with any disposition on comity, and thank you very much for hearing - - -

KIRBY J: Mr Robertson, when you send in the note to answer Justice Gaudron's points would you respond to what Mr Sher put? I thought he put some pretty telling arguments on the first issue relating to paragraph (j) of the rules and also the print copies that are distributed, because they seem to be fatal to your argument.

MR ROBERTSON: Yes, there is a passage, I can tell your Honour now, in the judgment. It is in the first part of the judgment at page 491, line 45 where the judge says:

it is likely that my decision on the print aspect would, as a matter of practicality, dispose -

of it. I will certainly put it in writing.

KIRBY J: Yes. It is only really on the first issue and it does not touch the main questions that have to be decided in this case.

MR ROBERTSON: Certainly.

GLEESON CJ: Thank you, Mr Robertson. We will reserve our decision in this. Yes, Mr Walker.

MR WALKER: Your Honour, may I hand up that which Justice Gummow suggested we do. The bulk is explained only because we have put a clean copy as well as a copy that reveals the changes at the back of each of those of our submission. I am asked by Mr Sher to make it clear that the affidavits upon which we relied in support of our application to intervene are only that, of course, and, in particular, we do not rely at all upon that of Mr Harding. May it please the Court.

GLEESON CJ: We will reserve our decision in this matter. We will adjourn until 10.15 tomorrow morning.

AT 4.24 PM THE MATTER WAS ADJOURNED