The existing choice of law and jurisdictional rules for resolving online defamation claims

Abstract

Defamatory material posted on the internet is bound to be seen by persons established in various countries. An online defamation dispute involves the three pillars of Private International Law (PIL), that is, Jurisdiction, Applicable law and Recognition and Enforcement of foreign judgements. It results that PIL rules dealing with defamation may also be applied to defamation arising on the internet. To initiate a claim, the elements of an online defamatory claim are to be satisfied, that is: what makes material defamatory; who the parties are; what constitutes publication on the internet, and the defences available. Whilst rules established in the Brussels Regulation 44/2001 have created some harmonization in disputes involving Member States, it was still necessary to consider the domestic PIL rules in a dispute not involving Member States. The online defamation dispute revolves around the connecting factor of 'publication,' being interpreted as the 'place of receipt' of the defamatory material; i.e. the place of downloading. Although this Is the most widely used ground to asserting jurisdiction, other principles have been established such as the 'effects' or 'directing and targeting' tests. The wide interpretation of the concept of 'publication' has led to llbel tourism (i.e. forum shopping) and today the UK has become a popular place for filing online defamation cases. The court which has jurisdiction to determine the case is to consider which law is applicable to the cause. The 'lex loci delicti commissi' is commonly applied; it refers to the law of the place where the material was uploaded and generally material arises from one place. Other systems have adopted the 'most significant connection' and the 'proper law' theories, where the law having the most significant connection to the cause, is applied. At the European level, the rules of recognition and enforcement are harmonized, while at the national level, foreign judgments are generally recognized and enforced on the basis of 'comity.' However, the rise in libel tourism has prompted the US to establish new concepts to reform its legislation on defamation. Other legal systems are considering reforming their legislation to protect their citizens from unnecessary online defamation disputes. This in turn is having an effect on the current jurisdictional rules and applicable law available to online defamation claims.