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Abstract
This paper compares how the Australian defamation case of Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56 and the English obscenity case of R. v. Perrin [2002] EWCA 747 dealt with the legal concept of publication in the transnational online context or, more specifically, with the issue as to how to treat a foreign online publication. Despite the different nature of the causes of action, with the former being a civil case and the latter being a criminal case, the article shows that, not only were the underlying jurisdictional issues the same, but that there were also significant similarities in the approaches taken to them. Both courts firmly rejected arguments in favour of an exclusive country‐of‐origin approach and stuck with the traditional country‐of‐destination orthodoxy. Nevertheless, it is argued that, given the different nature of and rationales behind civil and criminal law, as well as the less cooperative transnational criminal law regime, the same jurisdictional approach taken to both civil and criminal transnational activity may in fact yield substantially very different outcomes. Thus, the approach appropriate in the criminal law context may lead to undesirable over‐regulation in the civil law context.
Notes
Correspondence: Dr Uta Kohl, Department of Law, Hugh Owen Building, University of Wales, Aberystwyth, Penglais, Aberystwyth, Ceredigion SY23 3DY, UK; E‐mail: [email protected]. The author would like to thank Professor Ryszard Piotrowicz, University of Wales, Aberystwyth, for his comments on an earlier draft of this paper.
[2002] HCA 56; available at http://www.austlii.edu.au. For a case note by the author see U Kohl (2003) Defamation on the Internet – nice decision, shame about the reasoning. Dow Jones & Co v Gutnick, International and Comparative Law Quarterly, 52, p 1049.
[2002] EWCA 747; available at http://www.bailii.org/.
D R Johnson and D Post, ‘Law and borders – the rise of law in cyberspace’, Stanford Law Review, Vol 48, p 1367, 1996.
Ibid, p 1375.
The discussion on either approach has of course arisen outside the online context, as touched upon, for example, in G Betlem, ‘Transboundary enforcement: free movement of injunctions’, in S Dyssli and B. Dyssli (Eds) Environmental Rights – Law, Litigation & Access to Justice, Cameron May, London, 1995, p 184.
The earlier judgement by the Supreme Court of Victoria (Dow Jones & Co. Inc. [2001] VSC 305) described the facts of the case in detail. The site in question was http://www.wsj.com.
Gutnick v. Dow Jones & Co. Inc. [2001] VSC 305, paras. 97, 105 and 110.
Gutnick v. Dow Jones & Co. Inc. [2001] VSC 305, para. 1f.
Gutnick v. Dow Jones & Co. Inc. [2001] VSC 305, para. 32.
The questions as to whether the Victorian court had jurisdiction but, more critically, whether it should exercise it depended, according to both the High Court and the Supreme Court of Victoria, upon whether or not the tort had been committed in Victoria, thus making the defamation law of Victoria the applicable substantive law. The same approach is adopted in England (Berezovsky v. Michaels [2000] 1 WLR 1004, 1013): ‘If the substance of an alleged tort is committed within a certain jurisdiction, it is not easy to imagine what other facts could displace the conclusion that the courts of that jurisdiction are the natural forum.’
A joint judgement was delivered by Gleeson CJ, McHugh, Gummow and Hayne JJ, with which Gaudron J agreed: two separate judgements were delivered by Kirby J and Callinan J.
Note that the High Court gave leave to intervene to 19 parties, many of them high‐profile publishers including Amazon.com Inc., The New York Times Company, Guardian Newspapers Ltd and The Washington Post Company.
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 39 (joint judgement) and para. 186 (Callinan J).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 123ff, especially paras. 124 and 138.
In the recent case Regie National des Usines Renault SA v. Zhang [2002] HCA 10 the High Court of Australia extended its ruling in John Pfeiffer Pty Ltd v. Rogerson (2000) 172 ALR 625 from intra‐state cases to international cases, rejecting the traditional double‐actionability approach in favour of the lex loci delicti test.
Whether the Supreme Court of Victoria had adjudicative jurisdiction depended on whether the foreign defendant had validly been served in the USA with the originating process, which in turn depended on establishing that ‘the proceeding is founded on a tort committed within Victoria… [or] is brought in respect of damage suffered wholly or partly in Victoria…’ r 7.01 (1) (i) and (j) of the Supreme Court (General Civil Procedure) Rules 1996 (Vic). As to the discretionary power see r 7.05 (2) (b) of the Supreme Court (General Civil Procedure) Rules 1996 (Vic): ‘Without limiting paragraph (1), the Court may make an order under this Rule on the ground… that Victoria is not a convenient forum for the trial of the proceeding.’ See Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, paras. 100–104.
Even the country‐of‐origin approach may give rise to a number of possible places, such as the place where the article was written or where editorial decisions were made (in Dow Jones & Co. Inc. v. Gutnick the State of New York) or the place where the server was located (in Dow Jones & Co. Inc. v. Gutnick the State of New Jersey).
Pullman v. Walter Hill & Co. Ltd [1891] 1 QB 524; Bata v. Bata (1948) WN 366.
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 25 (joint judgement) (internal footnotes omitted).
But note the High Court suggests that the common law should develop so that the laws of the country of origin should be taken into account in judging the reasonableness of the publisher's conduct in the context of a possible defence to a defamation claim: Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 51.
Jenner v. Sun Oil Co. Ltd [1952] 2 DLR 526, 526; M Isaacs & Sons Ltd v. Cook [1925] 2 KB 391; Gorton v. Australian Broadcasting Commission (1973) 22 FLR 181; Allsopp v. Incorporated Newsagencies Co. Pty Ltd (1975) 26 FLR 238.
In respect of simultaneous publication in multiple states the lex loci delicti test would yield multiple defamation standards. In particular, federations such as Australia have long been familiar with the problems encountered by such simultaneous publications. See, for example, Gorton v. Australian Broadcasting Commission (1973) 22 FLR 181; Allsopp v. Incorporated Newsagencies Co. Ltd (1975) 26 FLR 238; Comalco Ltd v. Australian Broadcasting Corporation (1985) 64 ACTR 1; Woodger v. Federal Capital Press of Australia Pty Ltd (1992) 106 FLR 183.
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, paras. 6 and 46. Although Gutnick had also suffered damage in the USA he wisely limited his claim to Victoria, as otherwise argument for the appropriateness of bringing his claim in Victoria would no doubt have been weaker.
Contrast the position in the EC where, at least in so far as the issue of jurisdiction is concerned, either the country of origin or the country of destination is entitled to hear the claim pursuant to art. 5 (3) of the EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968, Brussels) (now replaced by the EC Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (2000)) which provides that the plaintiff can sue ‘in matters relating to tort…in the courts for the place where the harmful event occurred’. In Handelskwekerij Bier v. Mines de Potasse [1978] 1 QB 708, 731 the European Court of Justice held that the harmful event takes place either where the misconduct occurred or where the claimant suffered damage. Furthermore, the European Court of Justice held in Shevill v. Presse Alliance SA Case C‐68/93 paras. 30–33, [1995] 2 WLR 499 that the plaintiff can only recover damages for the harm done in all jurisdictions in either the defendant's domicile or in the state where the publisher is established, which more often than not is the same place and is invariably the country of origin.
These laws are not just potentially but in fact applicable to the site, although this only becomes obvious when the site happens not be legally compliant with a particular law and someone instigates an action.
In has been argued that, in the context of slander, there would be no problem with foreseeing the applicable law as it would invariably be the law prevailing where the plaintiff enjoys a reputation, which the publisher can predict. This argument is addressed below: see the text accompanying notes 56–60.
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 117 (Kirby J).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 131 (Kirby J).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 23 (joint judgement).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56,, para. 200 (Callinan J).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 200, see also para. 133 (Kirby J).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 39 (joint judgement).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 184 (Callinan J).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 186 (Callinan J).
The necessity of accommodating online communication within traditional legal parameters was expressly noted by Hedigan J: ‘the World Wide Web is an information repository and delivery system unlike any other and which defies traditional analysis. That may be so, but the law must nevertheless cope with it… Bold assertions that the Internet is unlike other systems do not lead to the abandonment of the analysis that the law has traditionally and reasonably followed to reach just conclusions’ (Gutnick v. Dow Jones & Co. Inc. [2001] VSC 305, para. 68).
This different profile of online from traditional offline publishers also, of course, creates enforcement problems: see P P Swire, ‘Of elephants, mice and privacy: international choice of law and the Internet’, The International Lawyer, Vol 32, p 991, 1998.
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 123 (Kirby J).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 118 (Kirby J).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 111 (Kirby J).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, paras. 125, 130 and 131 (Kirby J).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 165 (Kirby J).
This was also the case in the earlier Australian online defamation case of Macquarie Bank Limited & Anor v. Berg [1999] NSWSC 526.
On the well‐documented insular US approach to choice of law in defamation and the enforcement of foreign defamation judgements see J Maltby, ‘Juggling comity and self‐government: the enforcement of foreign libel judgments in U.S. courts’, Columbia Law Review, Vol 94, p 1978, 1994; K H Yum, ‘The interaction between American and foreign libel law: US courts refuse to enforce English libel judgments’, International and Comparative Law Quarterly, Vol 49, p 131, 2000; J Sanders, ‘The extraterritorial application of the first amendment to defamation’, North Carolina Journal of International Law and Commercial Regulation, Vol 19, p 515, 1994.
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 53 (joint judgement).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 165.
Gutnick v. Dow Jones & Co. Inc. [2001] VSC 305, para. 115 (7). In Macquarie Bank Ltd & Anor v. Berg [1999] NSWSC 526, paras. 9–11, the uncertainty of enforceability was held to be an adverse albeit not decisive factor against granting the injunctive relief.
For example Dunlop Rubber Company Ltd v. Dunlop [1921] 1 AC 367.
The plaintiff always has the option of suing the defendant in their place of residence, which then assures the existence of enforcement jurisdiction.
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 54 (joint judgement) and para. 165 (Kirby J).
Pemberton v. Hughes [1899] 1 CH 781, 790f.
Buchanan v. Rucker (1808) 9 East 192.
Whether or not they come into conflict with these laws depends in the defamation context on the location of those the publishers decide to write about (i.e. the location of their reputation) and, of course, how.
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 39 (joint judgement) and para. 181 (Callinan J).
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters, OJ L 012, 16/01/2001 P. 0001–0023.
Article 15(1)(c).
Bonnier Media Ltd v. Greg Lloyd Smith (1 July 2002) Court of Session (Scotland), see in particular paras. 18–20 at http://www.scotcourts.gov.uk/opinionsv/dru2606.html. See also 800‐Flowers Trade Mark [2000] FSR 697, 705: ‘[s]o I think that the mere fact that websites can be accessed anywhere in the world does not mean, for trade mark purposes, that the law should regard them as being used everywhere in the world… In other fields, publication on a web site may well amount to a universal publication, but I am not concerned with that.’ Euromarket Designs Inc. v. Peters [2000] ETMR 1025, at http://www.bailii.org.
For a contrary view see Garnett, R. (2002) Dow Jones & Company Inc v Gutnick: an adequate response to transnational internet defamation?, Melbourne Journal of International Law, 4, p. 196.
The credit card details would normally reflect the location of the subscribers.
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 131.
Gutnick v. Dow Jones & Co. Inc. [2001] VSC 305, para. 41: ‘this case is not concerned with the World Wide Web because Dow Jones only puts it on for subscribers or trial subscribers. It limits access and thereby limits it from the world’ (see also para. 60).
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 151.
Dow Jones & Co. Inc. v. Gutnick [2002] HCA 56, para. 54.
Spilsbury, S. (2000) Media Law, p. 77 (London: Cavendish) where the author notes that the ‘reputation of a dead person is deemed to die with him’.
In addition, under common law the defamer need not be aware of the fact that they are defaming.
Poets & Writers at http://www.pw.org/mag/0301/newsjacobson.htm: Of love and defamation in China, reporting on Hong Ying's novel K: The Art of Love in respect of which she was held to have defamed a dead Chinese academic.
R. v. Perrin [2002] EWCA 74, para. 4
Section 2 (1) of the Obscene Publication Act 1959: ‘…any person who whether for gain or not, publishes an obscene article or who has an obscene article for publication for gain… shall be liable on summary conviction [or on conviction on indictment] to a fine… or to imprisonment… [or both]’; discussed in Hirst, M. (2002) Cyberobscenity and the ambit of criminal law, Computers & Law, 13(2), p. 25. See also Amanda Kearsly, A. (2001) The Internet, paedophilia and the ISP, Computers and Law, April/May, p. 29. An equivalent provision in Australia would be s. 578C of the Crimes Act 1900 (NSW) which deals with publishing child pornography and indecent articles; discussed in Griffith, G. (2002) Censorship in Australia: Regulating the Internet and other Recent Developments, Briefing Paper 4 at http://www.parliament.nsw.gov.au.
R. v. Perrin [2002] EWCA 74, para. 11.
Section 1 (1) of the Obscene Publications Act 1959.
R. v. Perrin [2002] EWCA 747, para. 11.
Accordingly, the following discussion on the concept of publication in respect of freely available sites and their location is prima facie equally applicable to subscription sites.
R. v. Perrin [2002] EWCA 747, para. 34, where the defendant asserted ‘…because of the worldwide nature of the internet it is difficult for the publishers to comply with the statutory requirement of individual states, and if they are obliged to do so the most restrictive laws will prevail’.
R. v. Perrin [2002] EWCA 747, para. 14.
R. v. Perrin [2002] EWCA 747, para. 33, ‘no evidence as to where the data files were created and posted, and… as to the location of the server’. But see Graham J H Smith, G. J. H. (2002) Internet Law and Regulation, 3rd edn, p. 533 (London: Sweet & Maxwell).
R. v. Perrin [2002] EWCA 747, para. 51.
Emphasis added. An equivalent very broad sphere of application is, for example, provided for by s. 3A of Crimes Act 1914 (Cth): ‘This Act applies throughout the whole of the Commonwealth and the Territories [ie. Australia] and also applies beyond the Commonwealth and the Territories.’
Cox v. Army Council [1963] AC 48, 67.
For example R. v. Treacy [1971] AC 537, 551; R. v. Foster, Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256, 257.
Macleod v. Attorney General (NSW) [1891] AC 455, 458, approved recently in Australia in Lipohar v. R. (1999) 168 ALR 8, 12.
Amends the Crimes Act 1914 (Cth). Discussed in R Piotrowicz, ‘Child sex tourism and extra‐territorial jurisdiction’, Australian Law Journal, Vol 71, p 108, 1997.
Section 7 (2) of Sex Offenders Act 1997 and s. 50AD of Crimes Act 1914 (Cth).
For example in Governor of Brixton Prison, ex parte Levin [1997] QB 65 the question was whether the defendant could have committed theft in the USA by typing instructions from his computer in Russia. The answer given was affirmative. International law accommodates this through doctrines such as the objective territoriality principle/effects doctrine and subjective territoriality principle. For a detailed discussion of various other theories justifying jurisdiction in the context of transnational crimes see M Goode, ‘The tortured tale of criminal jurisdiction’, Melbourne University Law Review, p 411, 1997. And for example see Libman v. R [1985] 2 SCR 178, a decision by the Supreme Court of Canada which clearly allows for the possibility that a crime can be committed in more than one territory. See also, for example, s. 10C (2) (b) of the Crimes Act 1900 (NSW) which provides most expressly for the assumption of jurisdiction on the basis of the effects doctrine by stating that there is a sufficient territorial nexus with the state where ‘the offence is committed wholly outside the State, but the offence has an effect in the State’.
The court held that the prosecution need not show that any vulnerable person actually saw the site, but merely that there was a likelihood that that would occur. R. v. Perrin [2002] EWCA 74, para. 22.
R. v. Barker [1962] 46 Cr App R 227, 230.
In terms of public international law, focusing on the location of the effect of acts rather than the location of the causative act itself (i.e. the uploading) falls squarely within the objective territoriality principle. David J Harris, D. J. (1998) Cases and Materials on International Law, 5th edn, p. 278 (London: Sweet & Maxwell).
R. v. Perrin [2002] EWCA 747, para. 18.
R. v. Perrin [2002] EWCA 747, para. 17, see also para. 51, where the Crown responds to the defendant's jurisdictional argument by noting that ‘there was a publication when anyone accessed the preview page.’
R. v. Perrin [2002] EWCA 747, para. 32ff. Note the defendant also argued that they were lawful there, which could not be confirmed by the court as there was no evidence as to where the date files were posted.
R. v. Perrin [2002] EWCA 747, para. 52. In fact it went further than that when it stated ‘We reject the suggestion that it is ever necessary for the Crown to show where the major steps in relation to publication were taken’ (emphasis added).
The reason is probably that s. 1 (3) (b) expressly deals with data stored on computers. However, as it was inserted in 1994 it is not likely to have been intended to cover the Internet.
R. v. Waddon [2000] All ER (D) 502. R. v. Perrin [2002] EWCA 747, para. 18 (emphasis added). This is consistent with the very broad statutory definition given to the term ‘publish’ in other jurisdictions in respect of similar offences; see, for example, s. 578C (1) of the Crimes Act 1900 (NSW), where ‘publish’ is defined to include ‘(a) distribute, disseminate, circulate, deliver, exhibit, lend for gain, exchange, barter, sell, offer for sale, let on hire or offer to let on hire, or (b) have in possession or custody, or under control, for the purpose of doing an act referred to in paragraph (a)…’.
This would fall squarely within the subjective territoriality principle under customary international law.
Hirst, op cit, note 67, p 26 (emphasis in the original).
R. v. Perrin [2002] EWCA 747, para. 51.
Citron v. Zündel (No 4) (2002) 41 CHRR D/274, at http://www.chrt‐tcdp.gc.ca, paras. 13–48, which also provides an overview of the various stages of the dispute, which started in 1996 (Appendix A). Note s. 13 (1) of the Canadian Human Rights Act, in issue in this case, states ‘It is a discriminatory practice for a person… to communicate telephonically or to cause to be so communicated…’ (emphasis added). As the discussion above shows in law the term ‘to publish’ tends to mean ‘to communicate’. Note also that this issue of jurisdiction had previously featured with more prominence in Zündel v. Canada 175 DLR (4th) 512, paras. 62–66 (1999), where the Federal Court rejected Zündel's argument that the website located outside Canada was beyond the Human Rights Commission's and Tribunal's competence and stated that a ‘person in Canada causes material to be communicated for the purpose of section 13 if that person effectively controls the content of material posted on a website that is maintained from outside Canada’ (para. 65). See also the US case of People v. World Interactive Gaming Corp 714 NYS 2d 844, 858f (1999).
R. v. Perrin [2002] EWCA 747, para. 52: ‘We reject the suggestion that it is ever necessary for the Crown to show where the major steps in relation to the publication were taken.’
R. v. Waddon [2000] All ER (D) 502, although it went on to say that the answer to that question would depend ‘upon questions of intention and causation in relation to where publication should take place’. Note, that the location of the computer where the material is stored is or should never be of any further relevance.
R. v. Perrin [2002] EWCA 747, para. 19.
R. v. Perrin [2002] EWCA 747, para. 33.
R. v. Perrin [2002] EWCA 747, para. 36
R. v. Perrin [2002] EWCA 747, para. 48. Section s. 168 (1) of Criminal Justice and Public Order Act 1994 inserted the part of s. 1 (3) upon which the court in Perrin relied: ‘or, where the matter is data stored electronically, transmits that data’.
No doubt with a bit of judicial ingenuity the court could have accommodated a more moderate approach within the words of the statute.
Sunday Times v. UK (No 1) [1979] 2 EHRR 245, para. 49, discussed in the context of the rule of law in McMahon, (1999) Improving access to the law in Canada, Computerisation of Law Resources, p 3, at http://www.austlii.edu.au; Groppera Radio AG v. Switzerland [1990] 12 EHRR 321, para. 68: ‘the scope of the concept of foreseeability and accessibility depends to a considerable degree on the content of the instrument in issue, the field it is designed to cover and the number and status of those to whom it is addressed’.
R. v. Perrin [2002] EWCA 747, para. 35. Although the argument was couched in terms of constructive notice (i.e. knowing which laws you have to comply with in principle), in fact it was concerned with the difficulty faced by online content providers of having actual notice of all applicable rules in the online context.
Groppera Radio AG v. Switzerland [1990] 12 EHRR 321, 324ff, where the defendant had argued that the relevant Swiss law was not ‘sufficiently accessible or precise for a citizen to be able to adapt his behaviour to them – even after consulting a lawyer, if necessary’ (para. 65). This was rejected by the court despite the fact that ‘the relevant provisions… were highly technical and complex… [and] primarily intended for specialists’ (para. 68).
See the text accompanying footnotes 36–41.
R. v. Perrin [2002] EWCA 747, para. 49 (emphasis added).
The most restrictive law will prevail: R. v. Perrin [2002] EWCA 747, para. 35.
Typically, the court makes no reference at all to the jurisdictional rules of public international law.
Yet, as noted above, if England assumes jurisdiction as the country of origin, the prosecution still needs to be able to prove that the likely effect on those who were likely to be confronted by it would tend to deprave them.
[1971] AC 537.
Referring to G Williams, ‘Venue and the ambit of criminal law’, Law Quarterly Review, Vol 81, p 276, 1965.
R. v. Treacy [1971] AC 537, 561f.
R. v. Treacy [1971] AC 537, 562.
R. v. Treacy [1971] AC 537, 560.
Fleming, J. G. (1998) The Law of Torts, 9th edn, p. 593 (Sydney: LBC Information Services): ‘For unlike the criminal law, the civil law was concerned not so much with insult as with injury to reputation, the esteem in which one is held by others.’ See also R. v. Burdett (1820) 4 B & Ald 95, 111f, 126.
In R. v. Burdett (1820) 4 B & Ald 95, it was held that, where a defendant writes and composes a libel in one jurisdiction with the intent to publish and afterwards publishes it in another jurisdiction, they may be indicted for a misdemeanour in either jurisdiction. In other words both the country of origin and the country of destination can assume jurisdiction in respect of the crime.
R. v. Treacy [1971] AC 537, 562. It is of course highly questionable whether charity is the real motive behind the court's willingness to apply their criminal law in these cases. If charity was the motive, why then are courts not willing to enforce foreign public law judgements.
See note 95 and accompanying text.
In this respect R. v. Perrin, where the court had enforcement power over the accused, contrasts sharply with Dow Jones & Co. Inc. v. Gutnick. Perrin had already been sentenced to two and a half years' imprisonment
Extradition is, for example, unavailable in respect of conduct that is criminalised only in the state seeking the extradition but not in the state where the offender is present. For a recent case see N Trait and S Wagstyl, ‘Moscow fails in bid to extradite Zakayev’, The Financial Times, 14 November, p 9, 2003.
AG of New Zealand v. Ortiz [1984] AC 1.
In respect of activities that are universally condemned, such as child pornography, that is consensus crimes, states can rely upon other states prosecuting behaviour originating from their territory, which may also have an effect on the territories of the former states. Yet, this only applies to a very limited number of activities, best reflected in the European Council Cybercrime Convention of which the R. v. Perrin's ‘obscene publications’ offence is not one. So the court in R. v. Perrin could not defer to the states in which the major steps leading to the publication were taken given that Perrin would not have been prosecuted there.
Possibly apart from state protest against a breach of public international law. M Akehurst, ‘Jurisdiction in international law’, 46 British Yearbook of International Law, Vol 46, pp 145 and 176, 1972–1973: ‘The acid test of the limits of jurisdiction in international law is the presence or absence of diplomatic protest.’
Interestingly, in DPP v. Whyte [1972] AC 849 which concerned an obscene publication under the Obscene Publications Act 1959, the keywords categorising the case refer to it as ‘obscene libel’.
In Dow Jones & Company v. Gutnick M3/2002 (28 May 2002) High Court of Australia Transcripts at http://www.austlii.edu.au, p. 15, this sentiment is expressed on a number of occasions, but possibly most emphatically by 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]. 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.’