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 attorneys 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 § 150 1)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 persons 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 hasnt really slowed down libel tourism – the US has defamation May limit damages to those incurred in England

Choice of Law in UK Defamation Cases 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)

Choice of Law in UK Defamation Cases 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)

Choice of Law in UK Defamation Cases

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 Cases Lennon 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 Constitution b.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 Trends Metropolitan International Schools v. Designtechnica and others (2009) – Π is a European distance learning course company – Δ s are an Oregon corporation and Google – Δ s 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 Trends Tamiz v. Google (2013) Π is (presumably) an English blogger Δ s 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

How could we do this better? 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 Plaintiffs 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)

How could we do this better? Create choice of law rules specific to the internet (continued) – Law of Defendants 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

How could we do this better? 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 Δ s some power to have their cases transferred home

How could we do this better? 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 Defendants 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