Cross-border internet defamation conflicts and what to do about them: Two proposals

AbstractConflicts of laws in cross-border defamation cases are politically and culturally sensitive and their resolution has always been difficult. But the ubiquity of the internet has increased their frequency, complexity, and intensity. Faced with the realities of the online environment—including the virtual disappearance of national borders—several countries have acted unilaterally to preserve their values and protect their interests. Some countries enacted laws favouring consumers or other potential plaintiffs, while other countries took steps to protect potential defendants, including publishers and internet service providers. As a result, these conflicts are now more contentious than ever before. We believe there is a better way—even-handed multilateral action rather than self-serving unilateral action. In this article, we advance two proposals for multilateral action. The first is a set of soft law principles in the form of a resolution adopted by the Institut de Droit International in 2019. The second is a proposed Model Defamation Convention. After presenting and comparing these two instruments, we apply them to two scenarios derived from two leading cases (the first and one of the latest of the internet era) decided by courts of last resort. The first scenario is based on Dow Jones & Company Inc v Gutnick, which was decided by the High Court of Australia in 2002. The second is based on Gtflix Tv v. DR, which was decided by the Court of Justice of the European Union at the end of 2021. We believe that these two instruments would produce more rational solutions to these and other cross-border defamation conflicts. But if we fail to persuade readers on the specifics, we hope to demonstrate that other multilateral solutions are feasible and desirable, and that they are vastly superior to a continuing unilateral “arms race.” In any event, we hope that this article will spur the development of other proposals for multilateral action.Keywords: Internetdefamationcross-border casesjurisdictionapplicable lawrecognition and enforcement of foreign judgmentsinternational law reform proposals Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 The term “libel tourism” describes situations in which a non-resident plaintiff sues a non-resident defendant in a tenuously connected country solely because of its pro-plaintiff defamation law. Until the enactment of the Defamation Act 2013, England was a magnet forum for defamation plaintiffs—mostly the rich and famous—because of its pro-plaintiff substantive law, its lenient jurisdiction law, and its forum-centric choice-of-law rules. See Trevor C. Hartley, “‘Libel Tourism’ and Conflict of Laws” (2010) 59 International and Comparative Law Quarterly 25.2 As an American court noted in the famous Yahoo! case, The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China’s laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom’s restrictions on freedom of the press. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F.Supp.2d 1181, 1186–87 (N.D. Cal.2001).3 [2002] HCA 56, 210 CLR 575, 194 ALR 433, 77 ALJR 255.4 See, e.g., New York Times, Dec. 11, 2002, at A34 (“A Blow to Online Freedom”).5 Wall Street Journal, Dec. 18, 2002, at A19 (Letters to the Editor: “Free Speech Will Survive Kangaroo Court”).6 Gutnick, [2002] HCA 56, at ¶ 200, Callinan J, concurring.7 See Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 U.S.C. § 4102 (2010). This Act prohibits recognition of foreign defamation judgments unless: (1) the foreign court’s jurisdiction comported with the requirements of the US Constitution’s Due Process clause, and (2) the defamation law applied by the foreign court provides “at least as much protection for freedom of speech and press” as provided by the First Amendment of the US Constitution.8 See 47 U.S.C. § 230(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).9 See Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/ EC (General Data Protection Regulation).10 Fourteen out of the eighteen countries that have enacted specific choice-of-law rules for cross-border infringement of personality rights conflicts (including defamation) allow plaintiffs to choose the applicable law from among the laws of several states, such as the state of injury, the plaintiff’s home state, the defendant’s home state, etc. See infra n 44 and accompanying text.11 The IDI was founded in 1873 in Ghent, Belgium, with the goal of “promot[ing] the progress of international law”—both public and private—by, inter alia, “striving to formulate the general principles of the subject, in such a way as to correspond to the legal conscience of the civilized world.” IDI statute, Art 1.12 The Resolution is extensively discussed in Symeon C Symeonides, Cross-Border Infringement of Personality Rights via the Internet (Brill, 2021) 148 et seq. Professor Erik Jayme of Heidelberg served as co-rapporteur. The rapporteurs were assisted by the IDI’s Eighth Commission consisting of Professors Bernard Audit, Jürgen Basedow, Michael Bogdan, Léna Gannagé, Hélène Gaudemet-Tallon, Paul Lagarde, Alain Pellet, Emmanuel Roucounas, and Walter Rudolf. Symeonides had sole responsibility for the accompanying article-by-article commentary.13 See Dan Jerker B Svantesson, Private International Law and the Internet (Wolter Kluwer, 4th edn, 2021) 650–79 (with extensive article-by-article commentary).14 Resolution, Art 1.2.15 Resolution, Art 7.1-2. However, if the plaintiff sues in the defendant’s current “home state” which was not the defendant’s home state at the time of the injury, the applicable law is the internal law of the state that, considering all the circumstances, has the closest and most significant connection. Ibid Art 7.2.16 Resolution, Art 5.1(c) and (d).17 See Resolution, Art 1.11(a)-(b).18 Resolution, Art 5.1(a).19 Resolution, Art 1.8 (emphasis added).20 See Resolution, Art 4(a).21 Resolution, Art 4(a).22 See Case C-68/93 Shevill [1995] ECR 1-415.23 See Resolution, Art 5.3.24 Resolution, Art 5.1(c).25 Resolution, Art 4(c).26 2018 SCC 28.27 Case C-194/16 Bolagsupplysningen OÜ EU:C:2017:766.28 See Cases C-509/09 and C-161/10 eDate Advertising GmbH v. X and Martinez v. MGN Limited, EU:C:2011:685, [2011] ECR I-10269.29 Supra n 22.30 See Case C-251/20 Gtflix TV v. DR, EU:C:2021:1036. Gtflix is discussed infra at F.1.31 The same difference exists with the jurisdictional bases of the Victoria court in Gutnick, and similar bases available in England and Wales before the Defamation Act 2013, as well as other countries that follow the mosaic principle.32 Subparagraphs (a) and (b) of Art 1.11 define “home state” for both defendants and plaintiffs as the state of domicile or habitual residence for natural persons and the state of the statutory seat, principal place of business, incorporation or formation, for legal persons. In addition, subparagraph (c) provides that, if a person suffers injury to its professional or business interest, then the state in which that person has its principal professional or business establishment is considered that person’s home state.33 eDate Advertising (supra n 28), at ¶ 49. The Court also noted that, depending on the circumstances, the plaintiff’s centre of interest may be in the state where the victim “pursu[es] . . . a professional activity.” Ibid. The Resolution covers this possibility through Art 1.11(c), which refers to the plaintiff’s professional or business home. See supra, previous note.34 Even if the plaintiff’s home state does not qualify as the plaintiff’s centre of interests, there is still good reason to allow jurisdiction there, as long as the plaintiff suffered injury there. However, because the Resolution is also concerned with fairness for the defendant, it provides defendants with the jurisdictional escape discussed below.35 Resolution, Art 5.2.36 See Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984).37 See Calder v. Jones, 465 U.S. 783 (1984).38 It also deviates from these regimes by not authorising jurisdiction in cases such as Gtflix TV v. DR, (supra n 30), in which the forum’s only connection is the occurrence of some injury. See Scenario 2, infra.39 Art 6.2 of the Resolution provides that a pre-dispute choice-of-court agreement is enforceable if: “(a) it was freely negotiated, expressed in writing and covers non-contractual obligations; (b) all parties engaged in commercial or professional activity and the agreement was part of that activity; and (c) it is otherwise valid under the law applicable under the private international law rules of the forum State.”40 Resolution, Art 5.1.41 The two exceptions apply to cases in which the trial takes place (1) in a state that is the defendant’s home state at the time of the trial but not at the time of the injury, or (2) in a state designated in a valid choice-of-court agreement which is not one of the states that would have jurisdiction under Art 5. In both of those cases, the applicable law is that of the state that has the “closest and most significant connection” to the parties and the dispute. See Art 7.3, second sentence; Art 7.5, second sentence. However, as explained below, these cases are rather infrequent.42 See supra B.4(a)(i).43 See Symeon C Symeonides, Private International Law: Idealism, Pragmatism, Eclecticism (Brill, 2021) 203–08. For detailed discussion of most of these rules, see Symeon C Symeonides, Codifying Choice of Law Around the World (OUP, 2014) 59–65.44 See Symeon C Symeonides, “Infringement of Personality Rights via the Internet: Jurisdiction and Choice of Law” (2022) Lex and Forum 311, 323. The 14 countries are Albania, Bulgaria, Lithuania, Moldova, Montenegro, Romania, Serbia (draft), Switzerland, Turkey, Czech Republic, Monaco, Hungary, Belgium, and Poland. These rules give plaintiffs between two and five choice-of-law options. The four countries that do not authorise pro-plaintiff choices are Australia (six states), China, Japan, Norway (draft), and Taiwan. See ibid.45 That law “shall govern all substantive issues” between the parties, that is, no dépeçage, see Art 7.4.46 Art 8.2 of the Resolution provides that a pre-dispute choice-of-law agreement is enforceable if: “(a) it was freely negotiated, expressed in writing and clearly covers non-contractual obligations; (b) all parties engaged in commercial or professional activity and the agreement was part of that activity; and (c) the application of the chosen law is not manifestly incompatible with the public policy (ordre public) of the forum State or the State whose law would be applicable under Article 7.”47 Resolution, Art 8.1.48 See Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 U.S.C. § 4102 (2010).49 Art 32 which relates to situations where the application of the Model Convention may be displaced in favour of other prior international agreements with which the Model Convention overlaps.50 For more on this useful, but these days typically overlooked possible test, see Dan Jerker B Svantesson, “Jurisdictional Issues in Cyberspace: What Should Article 7 – Consumer Contracts, of the Proposed Hague Model Convention, Aim to Accomplish in Relation to E-commerce?” (2001) 17 Computer Law and Security Report 318–25.51 States that have signed the ICCPR are expected to act in this manner. However, Art 17 serves as a reminder.52 Provided that the requirement associated with lodging communications are met.53 This case has been strongly influential both in Australian courts and abroad. Furthermore, it has been subjected to extensive and ongoing academic scrutiny. For a recent example see, for example, K Pappalardo and N Suzor, “Dow Jones & Company v Gutnick (2002)” in D Rolph (ed) Landmark Cases in Internet Defamation Law (Hart Publishing, 2019) 217–41.54 Dow Jones & Company Inc. v. Gutnick (2002) 210 CLR 575.55 [2012] SCC 19.56 [2018] SCC 28.57 See Resolution, Art 1.11(a).58 Resolution, Art 5.1(c). See also Art 4(c).59 See Resolution, Art 1.11(b).60 See Resolution, Art 1.8.61 See Resolution, Art 5.1(c) and Art 4(c).62 31 F.4th 135, at 141 (2nd Cir. 2022).63 See infra E.2(e).64 By contrast, if Mr. G were to sue in State Y, Bmag would not have any jurisdictional escape. See Resolution, Art 5.1 (a) or (b).65 By contrast, if Mr. G were to sue in State Y, the internal law of that state will govern under Art 7.1 or 2, without any escape.66 Under Art 7.3, the request must encompass all substantive issues. In other words, Mr. G may not pick and choose only certain parts of State Y law.67 See supra B.4(a)(i).68 See supra E.2(a).69 These states are the defendant’s home state and the state of the defendant’s critical conduct. See Resolution, Arts 5.1(a)–(b), and 7.1–2.70 See Resolution Arts 5.1(c)–(d), and 7.3–4.71 The rapporteur’s official comments accompanying the Resolution address this precise scenario by using the Bolagsupplysningen case (supra n 27) as an example of a case in which the plaintiff had its domicile in Estonia but conducted most of its activities in Sweden. The comments state that in that case “Sweden would qualify as the state of the ‘most extensive injurious effects’ because, in the words of the CJEU ‘any injury to [the plaintiff’s] reputation would be felt most keenly there.’” Resolution, Art 5, cmt. (d).72 Model Convention, Art 3.73 It is assumed that Art 32 of the Model Convention is not applicable in the circumstances in the absence of information regarding the countries’ participation in other relevant international instruments.74 However, if Mr. G were to seek an injunction, Art 9 (read in the light of Arts 10 and 11) would presumably require him to do so in State Y rather than State X. This restrictive approach is justified from the fact that injunctions are considerably more intrusive on freedom of expression than subsequent damages. See Svantesson, (supra n 13) at 667–68.75 Art 14 provides that “A court having jurisdiction based on Article 5 shall apply the laws, other than the rules of private international law, of the State where the court is located (lex fori).”76 See further: D Svantesson, “Jurisdiction in 3D – ‘Scope of (Remedial) Jurisdiction’ as a Third Dimension of Jurisdiction” (2016) 12 Journal of Private International Law 60–76; D Svantesson, “‘Scope of Jurisdiction’ – A Key Battleground for Private International Law Applied to the Internet” (2020/21) 22 Yearbook of Private International Law 245–74.77 See Resolution, Art 3.2.78 As noted earlier, this assumption may be disputed in a case such as Scenario 1, in which only 5 per cent of the viewers were based in State X, compared to 95 per cent of the viewers who were based in State Y. See supra.79 See Resolution, Art 5.2.80 Ole Lando, “Lex Fori in Foro Proprio” (1995) 2 Maastricht Journal of European and Comparative Law 359. The origins of this line of thinking can be traced back to different writings of A Ehrenzweig. See also Lando, ibid. See further Svantesson (supra n 13) 592–93.81 See supra B.4(a)(i) and E.2(e).82 Supra n 30.83 Shevill, supra n 22.84 See eDate Advertising (supra n 28); Bolagsupplysningen OÜ (supra n 27), and Case C-800/19 Mittelbayerischer Verlag KG EU:C:2021:489. These cases are discussed in D Svantesson & I Revolidis, “From eDate to Gtflix: Reflections on CJEU case law on digital torts under Art. 7(2) of the Brussels Ia Regulation, and how to move forward” in Paris Arvanitakis (ed) National and International Legal Space: The Contribution of Prof Konstantinos Kerameus in International Civil Procedure (Sakkoulas Publications, 2022) 319–71.85 Case 21/76, EU:C:1976:166, [1976] ECR 1735.86 Ibid at ¶¶ 32, 35, 39.87 See eDate Advertising (supra n 28); and Bolagsupplysningen (supra n 27).88 See Resolution, Art 5.1 (a)-(b).89 See Resolution, Art 5.1(c)-(d).90 Model Convention, Art 3.91 Art 4 again makes clear that the matter of jurisdiction is to be determined by reference to the rules of the Model Convention only, and since there is no indication of any choice of court agreement, we can again ignore Art 6. Further, Arts 7–12 are inapplicable to the claim of damages. Most importantly, there is no indication that the defendant “has taken reasonable steps to avoid contact with that State” (Art 12). It is also assumed that Art 32 of the Model Convention is not applicable in the circumstances in the absence of information regarding the countries’ participation in other relevant international instruments.92 Svantesson (supra n 13) at 671.93 Model Convention, Art 9. Art 9 provides that a plaintiff may also bring an action in defamation “in accordance with the preceding Articles” to prevent injury from occurring, and that this action must be brought in the state in which the defendant is expected to perform the injuring act. This wording may create an internal conflict because “the preceding articles” provide that the defamation action must be filed in the state of injury. To avoid the conflict, the quoted phrase should be read as referring to the other elements of the defamation action, but not to the state where that action must be filed.94 Model Convention, Art 11.95 Indeed, the Model Convention to be presented in the next edition will reconsider the entire approach to rectification and removal.96 According to its website the Network is a non-profit and neutral “multistakeholder” organisation “addressing the tension between the cross-border Internet and national jurisdictions … [by] facilitat[ing] a global policy process engaging over 400 key entities from governments, the world’s largest internet companies, technical operators, civil society groups, academia and international organizations from over 70 countries.” https://www.internetjurisdiction.net/about/mission97 See Dan Jerker B Svantesson, Internet & Jurisdiction Global Status Report (Internet & Jurisdiction Policy Network, 2019).98 Ibid at 14.99 Ibid. See also ibid at 2 (“Clarifying how existing national laws apply in cyberspace and developing new balanced frameworks to address abuses, will enable the digital economy to protect human rights and will determine the shape of the emerging digital economy. To preserve the open, cross-border nature of the internet, policy coherence and legal interoperability between multiple regimes must be established. This requires communication, coordination and, ultimately, cooperation among all stakeholders.”).100 This phrase is attributed to President Harry S Truman.