Gutnick
I've just been reading the judgments of the High Court in Gutnick again (that is, the High Court internet defamation decision, which was handed down 10 December 2002).. Leaving aside Gaudron J's brief concurring judgment for a moment, and just focussing on the other three - what a fascinating contrast from 3 judgments which essentially come to the same result, if not the same conclusion.

At one end we have Kirby J, expressing a sympathetic view of the arguments that existing defamation principles are not appropriate to the Internet. Even though he ultimately comes to the conclusion that the changes sought would be too great a leap for the judicial branch, you could read his judgment as encouraging people to keep thinking in terms that acknowledge the need, sometimes, for common law to adapt to new technology.

in the middle somewhere we have the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ. This judgment is, you might say, "moderation itself". They deny that the Internet differs from other forms of communication in relevant ways or sufficient to justify a change to the law. Like other communications technologies, they say, it has wide dissemination. We still think it comes back to where the reputation is. While it's arguable that they unduly downplay the difference between the Internet and other technologies, still, the focus (as Justin Hughes might say) is on translation - same legal norms, new context. As I said - moderation itself - and unlikely to encourage advocates, or judges, to push the "Internet is unique" line.

And then, finally, at the other end, we have Callinan J. One way to describe the judgment is - strong and opinionated. Another possible description is that it is a judgment that uses, as a method of legal argument, the denigration of the advocates, the case, and even United States Law. First, the sarcastic asides about the appellants ("the word 'profit' never passed the appellant's advocate's lips" (at [182]) (by the way - why would it? As Kirby J does point out, seeking some forensic advantage is not illegitimate. What do you want them to say? That "oh, we're just in it for the money, your Honour?" I can understand the reaction to some of the arguments, but such comments, even if allowable in advocacy, are not a compelling method of legal argument). Next, the sarcasm towards an argument that the Internet is different, mainly by drastically oversimplifying what the Internet is ("no more than a means of communication by a set of interconnected computers" (at [180])) (I'm not even going to start on the comparison his Honour draws between the ubiquity of the Internet and the ubiquity of any given brand of car). Finally, the almost entirely irrelevant comments about American First Amendment jurisprudence. Callinan J at [188] states:

"There is no doubt that the latter leans heavily, some might say far too heavily, in favour of defendants. Nor has the metaphor for free speech developed by Holmes J in a series of cases ... a marketplace of ideas, escaped criticism in the United States..."

First, it does not appear that the appellants were ever silly enough to argue that US law is better than Australian law and should therefore be applied. Second, I spent a semester studying First Amendment jurisprudence. Yes, you can make all SORTS of arguments about its failings and inconsistencies. But one thing you cannot do is sum up the entirety of First Amendment jurisprudence in the simple idea of a 'marketplace of ideas'. That is one metaphor, and not even the most commonly used one, that has been referred to in the States. But to refer only to that is the worst kind of misleading caricature. In fact, I think in my very first class on the First Amendment, with Jack Balkin, Professor Balkin tore the metaphor to shreds. And also pointed out the many other ideas that inform First Amendment cases and arguments. Given the clear irrelevance of the aside to the issues in Gutnick, it seems to me downright dangerous to engage in this form of "US law dilettantism". Such arguments might be relevant if the court came to consider 'reasonableness' as a defence (as suggested in the joint judgment at [51-52]. Not before.