Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/58



185 The passing off claim ultimately failed because no damage had been proved. And the trade mark infringement claim failed because the use of a trade mark on the internet merely by uploading on a website outside Australia was not a use by the website proprietor in every jurisdiction in which the mark is downloaded. Hence, in the absence of any evidence of innocent purchases, there was no infringing use of the trade mark by any innocent person, although his Honour concluded that an occasion of specific use was when the trap purchasers were informed that their orders had been accepted (491 [44]).

186 The second further decision to which Valve referred was Dow Jones and Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575. The principal issue in that case, as Gleeson CJ, McHugh, Gummow and Hayne JJ explained in the joint judgment (at 595 [4]), was whether the Supreme Court of Victoria was a clearly inappropriate forum for the trial of a defamation action concerning material published on the internet. This raised the question: "where was the material of which Mr Gutnick complained published"?

187 As senior counsel for Valve rightly submitted, the decision in Dow Jones is of limited assistance in relation to characterising the conduct for the purposes of the statutory norms in ss 18(1) and 29(1)(m). This is because the focus of the law of defamation is damage by publication. As their Honours said in the joint judgment (600 [26]):

188 Later in their Honours' reasons, after explaining the significance of damage in defamation cases (as the gist of the action), their Honours explained that this required rejection of the submission that the publication of defamatory material occurred in a single place (ie the place of uploading by the publisher to its servers). Their Honour's contrasted this rejection (at 606 [43]) with cases, like trespass or negligence, "where some quality of the defendant's conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt". Equally, in this case, the concern of the conduct in ss 18(1) and 29(1)(m) is not where the consequences of misleading or false representations