19
On the issue of the best forum, Lord Steyn said the reputation of the
Russian judicial system is such that Russia “cannot realistically be treated as
an appropriate forum where the ends of justice can be achieved.”
101
He
dismissed the United States as a forum because “the connections of both
plaintiffs with the United States are minimal. They cannot realistically claim
to have reputations which need protection in the United States.”
102
In fact,
the lords too quickly dismissed the United States as the best forum. As the
lords were aware, any judgment rendered in England where Forbes had not
received First Amendment protections would not be enforced by an
American court. Practically all of the magazine’s circulation is in North
America. If Berezovsky and Glouchkov were residents of the United
Kingdom, the lords rationale would be more compelling. If the reputations
can be redeemed, it can only occur in an American court.
In the wake of Berezovsky, an Australian court found jurisdiction in a
libel action against an American publisher when almost the entire contact
was through the Internet. Gutnick v. Dow Jones & Co.
103
was a libel case
stemming from the publication in October, 2000, of an article, titled
“Unholy Gain,” in Barrons magazine and on Barrons Online at wsj.com.
The 7,000-word story claimed Joseph Gutnick, a Melbourne businessman,
helped use United States religious charities to manipulate stock prices.
While the article asserted Gutnick laundered money as part of the
manipulation, the mention of him was peripheral to the American focus of
the story. Barrons has a circulation of about 300,000 copies, but very few
are sold in Australia. Wsj.com has 550,000 subscribers, about 1,700 of
whom are in Australia. The number of subscribers in Victoria was estimated
at 300, many of whom were in business and financial circles.
Barrons argued that the lawsuit ought not to be tried in Victoria
because publication occurred in New Jersey where article was uploaded onto
wsj.com. Publication was said to have occurred when the article “was pulled
from the server in New Jersey by the request emanating from the Victoria
Web browser.”
104
The court rejected that theory. It said publication “takes
place where and when the contents of the publication, oral or spoken, are
seen and heard (i.e., made manifest to) and comprehended by the reader or
hearer.”
105
The court noted that Dow Jones controlled who could read
101
Id at 10.
102
Id.
103
AUSTLII ((2001) V.S.C. 305 (Common Law Division)), aff’d as to jurisdiction, AUSTLII ((2001)
V.S.C.A. 249)
104
AUSTLII at 22.
105
Id at 21.
Convention