A Comment on Private Harms
in the Cyber-World
The Washington Post once had an advertising slogan for its home delivery
service that warned "if you don't get it, you don't get it." The play on words
was intended to convince nonsubscribers that if they did not get the newspaper
every day, they would not know what was going on in the world. As Shawn
Bone explains in his excellent Note, l the Post slogan may well apply in
Australia under a different play on words.
If the Australians don't get the
online version of The Washington Post (or the New York Times or Wall Street
Journal for that matter), it may be because their courts don't get the importance
of First Amendment principles in circumscribing libel liability to foster free
speech and a free press. The online publications may vanish from Australia
because of the potentially multiple and unlimited exposure to damages that
resulted from Gutnick v. Dow Jones & Co. 2 The "ifyou don't get it, you don't
get it" admonition has special meaning for Australians in the post-Gutnick
Australia is not alone, ofcourse. Much ofthe rest ofthe world simply does
not "get" our First Amendment free speech and free press protections. The
English High Court of Justice recently ruled in agreement with its Australian
counterpart, finding that the publication ofan Internet posting takes place when
it is downloaded, thus reinforcing the potential for multiple libel judgments for
one work of authorship.3 France does not "get" our First Amendment, as
evidenced by the decision of its courts to hold a website operator liable, in
* Christopher Wolf, A.B., cum laude Bowdoin College, 1976; J.D., magna cum laude.
Order of the Coif, Washington & Lee University School of Law, 1980; Partner in the law firm
of Proskauer Rose LLP concentrating on Internet Law; Adjunct Professor of Law at the
Washington & Lee University School of Law.
Shawn Bone, Note, Private Harms in the Cyber-World: The Conundrum ofChoice of
Law for Defamation Posed by Gutnick v. Dow Jones & Co., 62 WASH.