I. Private International Law- (Conflict of Laws)
INTRODUCTION
The concept of the Private International Law has emerged in the recent era as a necessary requirement to fill the gaps of the laws to function the private relationships across the national borders. As per the historical development of the system, the contract law has played a vital role in filling the gaps of international trade in the 19th century. Then accordingly the law of torts emerged in responding to the pressures of the rapid development in technological revolution in the 20th century. Eventually the development of the contract law and the technological revolution resulted in creating many legal issues across the national borders. However the law of torts now regulates and provides necessary solutions for the issues arising out of the Technological revolution.
The law of tort majorly recognizes several forms of torts which could be committed by an individual or an entity as Negligence, Nuisance and Defamation etc. The Cross Border Defamation hereinafter referred to as (CBD) among them has arisen in the international arena where it seeks a proper regulation by the private international law. Since the technology has now reached to a peak, the individuals have come to a place where they are unable to live without internet and social media such as Facebook and twitter. “In the past decade, social media platforms such as Facebook and Twitter have gone from being a novelty to becoming an essential part of many people’s personal and professional lives. Like previous changes in communications technology, social media poses a legal challenge”. Therefore the CBD has now become a burning issue since there is a tendency of one creating defamatory statements through a wide network. This paper would seek into the manner in which it regulates the CBD cases which comes under the law of torts.
II. What is Defamation; Cross Border Defamation
The Defamation is; “The offense of injuring a person’s character, fame, or reputation by false and malicious statements.”
Accordingly the defamation may arise in two forms which are namely slander (The spoken form) and libel (The written form). Even though many states have recognized the freedom of speech as a fundamental right, no one is entitled to make any defamatory statements targeting to harm an individual’s reputation. Therefore it should be noted that it is significant to strike the balance between the Human rights and the protection of one’s reputation universally by the private international law. However the International Covenant on Civil and Political Rights (ICCPR) has recognized the freedom of speech in the Article 19 as,
“Everyone shall have the right to hold opinions without interference…”
But it includes restrictions moreover in the Article 17 of the ICCPR
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation”
United Nations’ Universal Declaration on Human Rights (Article12) too emphasizes the importance of reliable protection as:
“No one shall be subjected to arbitrary interference with his privacy […] everyone has the right to the protection of the law against such interference of attacks.”
European Convention on Human Rights (Article 8) too have recognized the right to protection of one’s reputation as:
“Everyone has the right to respect for his private and family life, his home and his correspondence…”
However “the universal legal instrument does not, as such, contain any system of sanctions. Instead it leaves to the individual States to “give meaning” to the rights.”
• Cross – Border Defamation.
The defamatory statements made across the national borders is cross-border defamation. However The First Amendment to the U.S. Constitution accepted the restrictions over a person or an organization who seeks relief in the court of the United States when subjected to false and damaging statements. In 1964, the U.S. Supreme Court in New York Times Co. v. Sullivan in 1964 articulated the “actual malice” standard for most claims that could be brought against the media for defamation.
CBD raises a variety of matters including private international law issues with regard to the jurisdiction and the choice of laws. The internet era has now changed the flow of data across the national borders resulting in challenging the adequacy of the existing defamation regulating laws. Presently, social media has become a major communication mode. The social media such as Facebook, Twitter etc. have become a place where one may express freely. This has somehow raised many cross border-defamation issues which requires proper laws. The statistics of using social media in 2018 provides evidence in this regard. Accordingly the Internet World Stats on usage and population statistics provides the statistics on internet users in the world as until end of year 2018. Thus penetration rate is 54.4% out of the total population of the world. The growth of the internet users appears as 1052% during years 2000-2018. Thus a question arises as to whether the existing laws are adequate to regulate the issues or does it require a new set of rules to fill the lacuna.
III. Jurisdiction and choice of law.
The basic question of Conflict of laws may be recognized as
• The question of jurisdiction
• The question of choice of law
• The question of recognition and enforcement of foreign judgments
According to the private international law where there is claim for a CBD, two question arises which are distinguished but connected together. The jurisdictional issue appears to be the first which determine the court to hear the case and the second appears to the applicable law question of what substantive governing law would apply. The aforesaid two different question are interrelated in certain circumstances. “Under the traditional common law approach the exercise of jurisdiction is discretionary, and the courts are more likely to exercise jurisdiction where the dispute is governed by English law.” The party who claims normally select to bring proceedings in a particular jurisdiction if it grants them some advantages which are forwarded at the forum. Therefore there is tendency for a party to bring proceedings in a certain place since the court of that place would apply a favourable appropriate law. Moreover the English rules of choice of law have been considered to encourage such “forum shopping” with regard to defamation cases. The reason behind the latter appears to be they need to lead to apply the English law, which is recognized as favourable to the parties who claims.
However it should be noted that the selection of the suitable law for the regulation of the CBD cases appears to be problematic. Several key factors need to be taken in to consideration in determining the cross-border torts such as the place where the tort occurred, the domicile of the party and the nationality of the party etc. To add to the current elementary matter, on account of cross border civil wrongs an extra issue of deciding the important jurisdiction wherever the tort was bestowed emerges. Thus there are a unit to boot wide assortments of tortuous problems that will emerge – confinement, damage etc. The inquiry that at that time emerges is whether or not an identical law have to be compelled to represent these problems. A massive setting of the solutions has been setup by totally different countries so on to function this issue and even among these solutions there has been spectacular advancement over some stretch of time. This paper therefore analyses the various “choice of law rules” took once across the jurisdictions.
Jurisdiction (forum domicilli)
Hence the question of jurisdiction is highly essential and they are too complex rules for each jurisdiction. Therefore it deals with the jurisdiction over the person and the jurisdiction over the subject matter. It is noteworthy that the jurisdiction in the private international law means deciding the appropriate court to hear the matter. Accordingly it has been decided that the people domiciled in an exceedingly Member State should be sued within the courts of that Member State, paying very little relation to their individual status. The BRUSSELS Convention enumerates the provisions relating to Jurisdictional matters in the Article 4 and 5. Accordingly A person domiciled in a Contracting State may, in another Contracting State, be sued: if the defendant is not domiciled in a Contracting State, the jurisdiction of the courts of each Contracting State shall, subject to the provisions of Article 16, be determined by the law of that State (Art.4) and in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred. It ought to be noted that Art. 4 accommodates the international jurisdiction, domestic jurisdiction is to be chosen per residential law.
The law during this space has continuously been complicated, and tries among the EU to form bigger legal certainty have else new ambiguities. There aren’t any simple answers. Potential defendants argued powerfully that they ought to solely be subject to the defamation laws of their own jurisdiction, which they knew and understood. Claimant representatives, on the opposite hand, argued – with equal force – that claimants ought to be ready to claim within the country during which the harm to their reputation has taken place, in step with the norms and customs of that jurisdiction.
Choice of Laws
A certain solutions have been practiced by diverse states relating to CBD. Several choice of law rules will be explained here following the across jurisdictions – lex fori, lex loci delicti and double actionability. According to The scholar Jean-Gabriel Castel “rules of jurisdiction and of choice of law address different concerns and that the test of place of publication should not always be used for both purposes”. If fairness dictates that the plaintiff should be able to choose the courts where publication took place, the choice of jurisdiction should not automatically warrant the application of the law of that forum. This would encourage forum shopping. Instead it is contended that choice of law rules should, first and foremost, reflect the most characteristic element of the tort of defamation, which is the protection of reputation.
The term lex loci delicti suggests the law of the place where the tortious act was committed. However accordingly the place of downloading, hearing, and reading the defamatory statement by another party is concerned in establishing the place of tort in CBD. This specific place can be considered as the place where plaintiff suffers for the harm for his reputation.
The theory of lex fori was suggested by the German and French writers, Kahn and Bartin. According to this theory “the court should characterize the issue in accordance with the categories of its own domestic law, and foreign rules of law in accordance with their nearest analogy in the same law.” However the regulation of lex fori is lacking of foresight and there is no any compelling reason to recognize where actually the tort occurred. On the other hand this could work to the hindrance of the litigant as the offended party could then continue forum shopping – picking a forum that suits to him. However if it is not a tort under lex fori, but under ¬lex loci delicti – the offended party does not endure as regardless of whether he can’t effectively acquire a claim from the forum state, he can get it where the act has been committed. However there is an issue where it inquires whether the choice of laws regulates the online defamation.
IV. Cross-border defamation in diverse jurisdiction.
Canada
In common law Canada, defamation law is largely based on the English common law. The substance of the tort of defamation has remained unchanged even though the jurisprudence and domestic legislations have developed in their own way. David Potts carries out the view that “a defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers.” Potts further states the three elements that a plaintiff has to prove having the onus to prove the tort of defamation namely “the words complained of were published, that the words complained of refer to the plaintiff and that the words complained of, in their natural and ordinary meaning, or in some pleaded extended meaning, are defamatory of the plaintiff”. In common law Canada, the concept of publication is closely tied to the concept of the place of tort, which, for choice of law purposes, has been defined by the Supreme Court of Canada as the place where the wrongful activity occurred as that place may play an important role for the determination of the jurisdiction of courts and the choice of the applicable law”
Australia
Recently the application of the private international law to torts with regard to Australian context has transformed specially over the matter of the CBD. Hence, alternative of law rules in Australia for each interstate and international misconducts square measure typically ruled by the law of the place of the tort (or lex loci delicti). Moreover the High Court in the Gutnick case stated applying the laws in the context of internet defamation “that the place of downloading is ordinarily the place where an Internet defamation occurs”. When nearly thirty years of incorporate reforms, all Australian states and territories finally enacted considerably uniform defamation laws by the top of the year 2006. Relevantly, these laws inflict selection of law rules for intra national publications. However, the common law, together with its selection of law rules, has been left intact for cases involving publications occurring outside of Australia. These varied developments have extensively modified the personal law framework for defamation proceedings in Australia.
United Kingdom
Double actionability rule- Although it has received a degree of clarification and modification in consequent cases, the essential ancient selection of law decree civil wrong in English law – a rule that still applies to selection of law in defamation in present scenario which was established by the case of Phillips v Eyre. The court haled that “As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England. Secondly, the act must not have been justifiable by the law of the place where it was done”
In the case of Boys v. Chaplin, moreover settled associate exemption to the overall rule of double actionability, by technique for creating the award of reliefs a procedural issue. During this manner the choice of the Boys v. Chaplin case ousted the law of the forum of place of civil wrong and re-established the law of forum such as the granting of damages and different reliefs were involved.
This position was later elucidated to a point on account of the Red Sea Insurance Co Ltd v. Bouygues wherever the overall lead was command to be double actionability, accommodating an exception in correct cases, wherever the displeased party might rely upon either lex fori or lex loci delicti completely for his or her claim to be unjust. Thus it’s obvious the actual fact that the law is developing by filling gaps and loopholes within the CBD cases.
V. Conclusion
According to the globalization and digitalized world, the communications, transaction and the data flow independently across the national borders. Hence that leads to the creation of tort of defamation over the national borders. As a result of those trans-border events a victimized individual may bring a lawsuit according to the private international law. But the conflict of deciding which court or courts have the jurisdiction or to provide the applicable law forum becomes critical.
REFERENCES
- Mills A, ‘The law applicable to cross-border defamation on social media: whose law governs free speech in ‘Facebookistan’?’ Journal of Media Law,2015<http://dx.doi.org/10.1080/17577632.2015.1055942> accesed 1 April 2018
- < https://thelawdictionary.org/defamation/>
- International Covenant on Civil and Political Rights (United Nations General Assembly, resolution 2200 A (XXI) of 16 December 1966).
- Universal Declaration on Human Rights(1948)
- Similar rights can be found in the European Convention on Human Rights (Art. 8) and in the Charter of Fundamental Rights of the European Union (Arts. 1, 3 & 7).
- Novus Aviation Ltd v Onur Air Tasimacilik [2009] EWCA Civ 122.
- The Convention on jurisdiction and the enforcement of judgments in civil and commercial matters [1968] Art 4, 5
- Palsson (2008), p. 105f.
- C Defamation covers both slander and libel. However in the case of the Internet, only libel is of interest.See generally Roger D McConchie & David A Potts, Canadian Libel and Slander Actions (Toronto:Irwin Law, 2004); Allen M Linden & Bruce Feldthusen, Canadian Tort Law, 8th ed (Markham:LexisNexis, 2006) at 759-815. Note that libel may be the subject of a criminal prosecution, Criminal Code, RSC 1985, c C-46, s 298ollier, J.G “Conflict of laws” (2001)
- David A Potts, Cyberlibel: Information Warfare in the 21st Century? (Toronto: Irwin Law, 2011) at 101.
- Leenen v Canadian Broadcasting Corp. (2000), 48 OR (3d) 656 at paras 40-41.
- Tolofson v Jensen; Lucas v Gagnon, [1994] 3 SCR 1022 [Tolofson].
- Gutnick [2002] 210 CLR 575.
- Phillips v Eyre [1870] LR 6 QB 1. See further generally Peter Handford, ‘Edward John Eyre and the Conflict of Laws’ (2008) 32 Melbourne University Law Review 822.
- Phillips v Eyre (1870) LR 6 QB 1, 28.
- Boys v Chaplin [1971] AC 356
- Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190
