Gutnick v Dow Jones & Co Inc [2001] V.S.C. 305

Facts: The defendant Dow Jones & Co Inc (hereinafter called ‘the defendant’ or ‘Dow Jones’ or ‘the applicant/defendant’) is the publisher of the Wall Street Journal, an internationally known and respected financial daily newspaper, much concerned with information concerning United States stocks and shares and other events that might affect their prices on the American market. The defendant is the publisher of Barrons Magazine on Monday, 30 October 2000 (which appears likely to have come out on Saturday, 28 October) contained an article written by a journalist working for the defendant, one William Alpert, headed ‘Unholy Gains’ and sub-headed ‘When stock promoters cross paths with religious charities, investors had better be on guard’. The first page of the article also contained a large photograph of Mr Gutnick. The article of some 7,000 words contained a number of different photographs of different persons including one of Nachum Goldberg. Barrons is a weekly with a substantial circulation in the United States primarily among investors and those interested in money matters. It was claimed without objection in the hearing before me that this relevant copy of Barrons Magazine sold 305,563 copies. A very small number of the actual print copy of Barrons came to Australia, but a number of them were sold in Victoria. Barrons, however, is customarily put online and this article went on the defendant’s website on Sunday 29 October. The defendant Dow Jones operates from its so-called corporate campus in New Jersey where its Website is located. This is, however, a subscriber website with some 550,000 subscribers. The defendant made a formal admission that several hundred subscribers to wsj.com were from Victoria and that they included significant persons from finance, business and stockbroking some of whom the court might infer, for the purposes of these interlocutory proceedings, downloaded the article. This submission was to be seen in conjunction with the admission effectively made in the opening that there were 1,700 subscribers from Australia. The plaintiff commenced his proceeding in the Supreme Court of Victoria by writ on 27 November 2000. The claim was that the defendant published words and pictures, that the plaintiff was the biggest customer of the gaoled money-launderer and tax evader Nachum Goldberg and that the words relied on imputed that Gutnick was masquerading as a reputable citizen when he was a tax evader who had laundered large amounts of money through Goldberg, and bought his silence.