Perils of Publishing on the Internet

Abstract

This article takes as its starting point the brief but illuminating discussion of the transnational phenomenon of the internet in Michael Whincop and Mary Keyes’ 2001 book Policy and Pragmatism in the Conflict of Laws, and observes that the prospect of internet publication will inevitably influence the framing of choice of law and jurisdictional rules from now on. This has already been shown by the High Court’s decision in the recent case of Dow Jones & Company Inc v Gutnick where, in attempting to adapt the previously certain lex loci delicti defamation choice of law rule to the exigencies of the internet, the court effectively transformed the rule into a more fluid — and more reasonable — standard that only allows for presumptive conclusions about the place of the tort as ordinarily (but by implication not inevitably) the place of downloading. Further, the fact that the court stressed that the lex loci delicti for other kinds of torts will depend on the ‘essence’ of the tort suggests that policy is now central to choice of law to an extent not previously contemplated. We suggest that is possible to elucidate some relatively certain choice of law rules for internet publications — being as much as can be hoped for at this stage.