Gossip

King Canute spotted in Australia ...

"It will certainly be re-established that the net is no different than a regular newspaper, that you have to be careful what you write and if you offend somebody or write malicious statements about people ... then you can be subject to being prosecuted," he said.

For some reason, this quote conjures up an image of a modern King Canute, sitting on an oil-covered beach in Spain, prohibiting the approach of the slick.

This statement - clearly the output of a deluded individual in complete denial about the universe - was not created by a sick Editor, hoping to increase sales. It's genuine. Well, if it isn't genuine, then the BBC has some explaining to do.

The deluded individual can be forgiven for his wishful thinking, of course. He's been libelled (he feels) by Dow Jones, and the article concerned would normally not be seens as libellous, because nobody in New York, where the Dow has most of its readers, will have heard of him.

Who is he? He's described as "Melbourne mining magnate Joseph Gutnik" and he's bringing his libel case in Australia, because people in Melbourne, including Edna Everage (Melbourne Housewife, Superstar) might think less of him as a result of the article - which is, of course, exactly the situation that libel laws are created to deal with.

A newspaper, of course, if published in New York for the Dow Jones's readership, would not be expected to reach Edna and her coffee-morning acquaintances. So "the net is no different than a regular newspaper" is clearly wrong straight away, or he wouldn't be bringing the case.

Can he win? Come on, don't ask a Sniffer for a legal opinion! We intercept packets, here; we aren't able to command lawyer fees for opinions, and our opinions carry no weight. But one thing we are sure of; if Dow Jones doesn't gain any significant revenue from its Australian operation, it can deal with the situation quite easily by closing down that operation.

You might say that's not going to happen, is it? Dow Jones has indexes in Asia-Pacific which generate an awful lot of revenue. However, the operation doesn't necessarily have to be based in Melbourne. And if moving to Sydney doesn't help avoid legal liability, well; there are other Asia-Pacific metropolitan centres. For example, Hong Kong ...

Could this happen? Could large corporates decide to "move offshore" to avoid legal liabilities?

Where there's sufficient will, yes, there's usually a way. Spain's North Atlantic coast is currently covered with the oil from the world's largest-ever tanker disaster. The ship that caused the problem sails under the flag of an off-shore shipping giant, which has managed to avoid all legal entanglements in all the countries it ships to; it's virtually untouchable. There are financial "offshore" giants which already behave similarly.

If Mr Gutnik wins his case, and (even bigger) IF he manages to collect his damages, big corporates who put information up on the Web in America - where free speech is guaranteed by Constitution - may well consider changing their approach. Competition means they won't pull their data off the Web and leave their rivals to have a free arena.

The obvious response from American publishers (including ordinary corporations like IBM and Texaco, who "publish" web sites) will be to lobby Congress to do something. We simply don't want to think about what this "something" might be. The US has already declared that its citizens can't be judged by overseas courts and that it has the right to arrest foreigners, even on their own soil, who are judged to have exceeded the bounds of American law; Australia, here, might be seen as giving America a taste of its own arrogance.

The trouble is, Australia isn't in any position to make it stick. A flotilla of Australian warships looming up on the New York horizon to arrest some US business executive simply isn't a feature in any future. Nor, unless you have a crystal ball made of Kryptonite, will you be able to foresee an Australian court freezing the assets of an American corporation on a libel charge which America sees as legally justified free speech.

The net is not "no different than" a newspaper, and it changes the rules. But one rule it does not change: might remains right in International Law. Mr Gutnik had better be rich if he wants to start this lawsuit; but he may not be so rich when he finishes. And the fish he's after may simply move out to sea. It's happened before ...