Download pptx - Choice of Internet Defamation Law Celina Kirchner

Choice of Internet Defamation Law

Celina Kirchner

Defamation

• Defamation: The act of harming the reputation of another by making a false statement to a third person– Libel: written defamation– Slander: spoken defamation

• Elements– Reputation to protect– False statement

US Defamation Law

• Burden on the plaintiff to prove that the statements are false

• Single Publication Rule– One work published many times will only cause one

action for defamation

• Federal statutory shield for ISPs (aka deep pockets)– Communications Decency Act of 1995 (CDA) §230

• Internet Service Providers (ISPs) are not liable for content posted by third-party users

• Damages may often be limited to “actual” damages• Each party covers its own fees

Why libel tourism?

• Libel tourism occurs when litigants from one country sue in another country that has more favorable defamation laws

• Defamation cases in the US are costly to litigate and limited in both potential defendants and damages

• Thus, defamation plaintiffs turned to other countries for better outcomes

• Since this internet is available anywhere, it is theroetically possible to get jurisdiction in every country

English Defamation Law

• Burden on the Δ to prove that the allegedly defamatory statements are true

• Multiple Publication Rule– Every time a statement is repeated/copied, a new cause

of action is possible– Extends the statute of limitations indefinitely – every

hit is a new day

• ISPs are more likely to be found liable for third party content

• English law allows punitive and statutory damages beyond actual damages as well as attorney’s fees

• Fee Shifting – prevailing party pays both sides’ fees.– With defamation cases often finding for the π, this can

be a cherry on top

Choice of Law in US Defamation Cases

• Restatement (Second) of Conflicts of Laws § 149– State of publication– UNLESS another state has more interest (following §6)

• Restatement (Second) of Conflicts of Laws § 1501) Liability for an edition of a book or newspaper, etc. is

determined by the state with the most significant relationship to the occurrence

2) For a natural person, the state with the most significant relationship is likely the state where the subject of the defamation was domiciled at the time of publication in that state

3) For a legal person (corporation), the state with the most significant relationship is likely the state of the legal person’s principal place of business

Jurisdiction in UK Defamation Cases

• English courts have jurisdiction over all defamatory statements downloaded in England– “[T]he common law currently regards the publication

of an Internet posting as taking place when it is down-loaded” (King v. Lewis, 15)

– Even if only a few copies made it to the UK, jurisdiction is established

• For non-UK countries in the EU, the Brussels Convention applies– Brussels Convention §2, art. 5(3)

• “A person domiciled in a Member State may, in another Member State, be sued:…in matters relating to tort…in the courts for the place where the harmful event occurred or may occur”

Choice of Law in UK Defamation Cases

• Double Actionability Rule - Private International Law (Miscellaneous Provisions) Act of 1995, Ch. 42– Requires that a case be triable under both English law and

the law of “the country in which the events constituting the tort…in question occur” (§11(1))

• The Double Actionability Rule was abolished for all tort cases in 1995 (§10)– All tort cases…except defamation! (§13)

• The otherwise useless Double Actionability Rule still applies– Internet defamation cases must be triable under both

English and the foreign law• This hasn’t really slowed down libel tourism – the US has

defamation• May limit damages to those incurred in England


• Significant relationship to the issue– “A particular issue between the parties

which arises in a defamation claim may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties” (Dicey and Morris on Conflict of Laws)


• Overall, it seems that UK law dominates as soon as jurisdiction is established. – American law is seen as a guide but not

considered for actual use• “Care has to be taken before American cases

are applied in English defamation cases. The impact of the First Amendment of the United States Constitution has resulted in a substantial divergence of approach between American and English defamation law.” (Godfrey v. Demon Internet)


UK Internet Defamation Cases

Shevill v. Presse Alliance (1995)• Π is an English citizen living in England• Δ is a French newspaper• Δ appealed for lack of jurisdiction, because only 250 of

the newspapers were sold in England out of a circulation of 200,000

• Court applied UK law to harm caused by the 250 UK copies

• Held: You can either try the case in the place where the publisher is located and get the damages for everywhere that they have occurred or you can try the case in the place where the harm occurred but only collect damages for harm within the jurisdiction– Π chose to remain in a British court

UK Internet Defamation CasesLennon v. Scottish Daily Record (2004)• Π is a soccer player for a Scottish team and lives in

Scotland• Δ is a Scottish newspaper• 461,294 copies in Scotland, 22,069 in England• Issue: Is England the proper jurisdiction?• Held: English jurisdiction and law

– There is enough of a relationship to England that it need not be transferred

– Note that damages will be limited to those caused in the UK (Shevill)

• Reasons why England is the proper forum and law– Distribution of copies of the newspaper in England proves that

this is the location of the "harmful event"– A case should be tried in the jurisdiction where the harm was felt– Cost of a trial in England will be the same as the cost in Scotland

The US Response

• New York implemented the Libel Tourism Protection Act in 2008

• Congress enacted the SPEECH Act in 2010– Securing the Protection of our Enduring and

Established Constitutional Heritage (SPEECH Act)

– Any domestic court (federal or state) will not enforce foreign defamation decisions unless they meet Constitutional standards for free speech and due process

• Many states have since followed suit

The SPEECH Act

• Foreign judgments are not enforceable unless a. They respect freedom of speech as much

as the Constitutionb. Personal jurisdiction was exercised in a

manner that follows Constitutional due process requirements• Appearance at a foreign trial does not block

the SPEECH Act from being enforced

c. They are not against ISPs (as defined in the CDA) or follow CDA guidelines

New TrendsMetropolitan International Schools v. Designtechnica and others (2009) –Π is a European distance learning course

company– Δs are an Oregon corporation and Google– Δs were not held responsible for

defamatory comments posted on a blog they hosted

– Similarity to US cases• “Mental element” required for ISP liability -

ISPs must know/intend to publish defamatory statements

New TrendsTamiz v. Google (2013)• Π is (presumably) an English blogger• Δs are Google and a subsidiary blog hosting website• Π claims 8 defamatory statements were posted on his

blog between April and August.– Π complained to Δ – All of the comments were deleted in August

• Google is not liable for content posted by a third party unless its employees interacted with that content in some way– Once it received notice, it took the comments down in an

amount of time that the court considered “reasonable” and was therefore not liable.

– Much closer to US law– Probably will be enforced by US courts

How could we do this better?

• Establish more finite jurisdictional rules– Limit the places where a defamation occurs

• Not in every place it is read/published• This worked for newspapers which were at least

limited to sale of a physical paper• Internet publishers cannot control where their

material is downloaded

• Elevate the substantial relationship standard– Require a certain percentage of circulation be

sold/downloaded before establishing jurisdiction


• Create choice of law rules specific to the internet– Law of Location of Hardware

• This may be too limiting and grant too much power to the courts in tech industry cities/states/countries

• Since most ISPs host in the US, this would unfairly prejudice the US

– Law of Plaintiff’s Domicile• "[E]ither or both of the places where the individual

was when the damage occurred and the place where the event giving rise to it occurred" (Shevill referencing Handelskwekerij G.J. Bier B.V. v. Mines de Potasse d'Alsace S.A. [1978] 1 Q.B. 708, 730)


• Create choice of law rules specific to the internet (continued)– Law of Defendant’s Domicile

• Protective of free speech• Writers/creators/editors know which laws

will apply to them and what to expect

– Forum Law (ignore choice of law issue)• Limits the choice of law argument altogether• Saves resources• Forum shopping spree


• Limit International Cases– Limit Comity• Very bad for international cooperation• Could cause retaliation by foreign

governments

– Forum Non Conveniens• The availability of a forum non conveniens

defense would grant Δs some power to have their cases transferred home


• Limit International Cases–Most Substantial Relationship Test

• Just because a country is related to an incident does not mean it is the most related/interested

• Unfair to plaintiffs who are injured in many countries– This could be solved by trying all injuries in the court

of the country with the most substantial relationship to the issue

– Law of Defendant’s Domicile• Defendants would never have to worry about

being dragged to a foreign court

Further Research

• Dicey, Morris, and Collins on Conflict of Laws– British version of Restatement of

Conflicts of Laws

• Gatley on Libel and Slander– British version of Restatement of Torts,

but specific to libel and slander.

• Final awards in international defamation cases