Introduction

Cheshire states that “PIL is part of law which comes into play when the issue before the court affects some fact, event or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system”.  Indeed, Private International law(PIL) is the area of law that comes into play whenever a court is faced with a question that contains a cross border element, or a foreign connection.

With the commencement of forming cross border contacts, necessity of PIL was largely felt due to variety of legal systems in different countries were in a conflict of laws. Moreover, PIL is one of the area where novel concepts and new directions will have to be fashioned to cope with problems being posed under new circumstances. Therefore, this area of law is developing & pervading rapidly within the different fields of law.

History of PIL can be found in several continental countries such as Italy, Germany, Netherlands, and France etc. In addition, PIL is not universal and every country possesses its own system of PIL. However, due to globalization, the overall development of international trade over the 19^th century was startling. Since different domestic laws are perceived as an obstacle to international trade, unification of contact law was at the very heart of the international trade. Since this pressure arisen in the nineteenth century, the contract law responded for that in international trade matters. With the scientific and technological developments, there were increased issues related to technological revolution. Inasmuch, in 20^th century, PIL started to give its remedies through the law of tort. Under that area PIL commences to respond the pressures in the Cross- Border Defamation (CBD) matters. The focus of this paper will be on critical evaluation of the legal issues arising out of implementing the Defamation law in the international scenario and its issues arisen with the PIL and how PIL address CBD issues within its development.

Origin of Defamation Law Under the Law of Tort

Tort law derived from the Latin term “tortum”. A tort is a civil breach committed against someone in which the injured party can sue for damages. There are four elements to be fulfilled in   tort law: duty, breach of duty, causation, and injury, in order to claim damages.

There are different types of torts that can be sued under the law of Tort and Defamation is one of them. At first, defamation was viewed as a spiritual matter and was therefore dealt by the Church courts in Britain. Since they could impact the dignity of a man, changed its mind of thinking defamation as mere words and determined it’s punishable under a law of Tort. Libel (written or printed word) and slander (spoken words) are two forms of defamation that can be used against someone’s reputation. Most of these defamatory statements were turned up within the territories of the particular states. However, with the technological revolution and other developments in science and technology fields in 20^th century, raised the curtain to people to make an abusive attack targeting another person’s character, their good name or reputation in cross border level also. Therefore, states strived to make a solution for these issues in CBD and determined to find a disbursement through PIL. As aforesaid PIL rapidly developing in numerous areas of law and, within its development, PIL has its own response for the pressure emanated in CBD.

Analysis of Cross-Border Defamation Law Through Development of PIL

 United Kingdom (UK)

PIL is most widely used throughout the world, considerably in England, in European Community. CBD both in the way of online and offline, increments a range of PIL issues. Because there are two distinct & linked PIL issues (which is common to any PIL matter) arise with the CBD claim,

• The jurisdictional question (which court may hear the claim)
• The applicable law question (what substantive governing law the court will apply)

Further, the situation getting more complex with the Cross-Border Defamation (CBD) in social media (online) platform. However, the development of PIL attempts to response for the issues in CBD and UK law can be provided as a classic example for that. From the beginning, the general rule introduced by the UK, which remains as the foundation of the present law and was formulated In Phillips v. Eyre. In this case, delivering the judgement Willes J. states,

“As a general rule, in order to find a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled,

1. wrong must be of such- a character that it would have been actionable if committed in England,
   1. act must not have been justifiable by the law of the place where it was done.”

This general rule is considered as the double actionability rule which facilitate for the application of both principles of: lex fori (law of the forum) and the lex loci delicti (law of the place of the tort). However, the second limb of the general rule, gained a new explanation in boy v. Chaplin. This interpretation more like an exception for the general rule which the court held that double-actionability requirement could be disapplied in favor of the exclusive application of English law.

With the new interpretation, the application of the general rule become doubtful and confused. However, some extra support for the exceptional approach was given by the Church of Scientology of California v. Commissioner of Metropolitan Police where Lord Denning said: “Double actionability’ is the general rule. There are some exceptions however.”

Notwithstanding, current UK law on CBD mostly govern by the Defamation Act 2013. Further, English choice of law rules had been widely considered to incentivize, (forum shopping) which is considered as more favorable to claimants. However, the inconveniences occurred was clear up to an extent via the UK Defamation Act. These reforms do reduce the likelihood of proceedings arising out of foreign defamatory acts being brought in the English courts as the English rules here is more favorable to claimant. Act provides that, when an Action brought against a person not domiciled in the UK or a Member State etc. “A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.”

Moreover, another important change for online content is that, the new single publication rule replaces the long standing multiple publication rule established by Duke of Brunswick v Harmer. Further, under the UK defamation Act 2013, carefully strive the balance between freedom of expression and the defamatory statements by using the term “serious harm”. However, Aforesaid facts evidential that several rules and laws developed through PIL makes the application of CBD law in a sustain and proper Manner in UK.

AUSTRALIA

Defamation law in Australia is derived from English common law. Although Australia does not have a separate law governing the CBD cases, the state attempts to find a solution through PIL. Obviously, it is the most efficient remedy available for every state, when considering the cross border individual matters.  Since Australia is considered as a claimant-friendly jurisdiction for CBD claims compared to other states, Australia has become prominent libel tourist destination

As aforesaid, most of the PIL rules followed by the Australia was inherited from the English law. CBD matters may be determined by an Australian Court, when the publication is accessed and read in Australia, then can choose the Australia as the law of forum. This type of matter is however not yet in a settled proposition. However, the Australian courts frequently apply the English rules on this situation. Therefore, as aforesaid in the UK scenario the general rule of the PIL used to deal with the matters arisen with the CBD cases in Australia too.

Moreover, the general rule proposed in the case of Phillips v. Eyre, was adopted in certain Australian judgments. Further in the case of Hartley v. Venn discusses the lex fori concept in depth which is followed by the UK. Though there is an exception for the general rule was established by the UK judges, there is no such backing was derived from the Australian cases in which the element of flexibility has been followed.

However, there are essential key differences between UK and Australia, with regard to the CBD law. For an example: just as in UK “serious harm” to the reputation is not necessary while the plaintiff only has to prove the meaning of the defamation within the publication was likely to cause a reasonable person to think less of the plaintiff. Further, unlike in the Defamation Act of UK there’s a absence well established protective freedom of speech rights which amounts to that, defendant cannot rely on any constitutional or legislative rights to freedom of speech in defense of a defamation claim. In addition, it proves that how the developments in PIL address the rules governing the cross-border defamatory cases in Australia as well.

CANADA

Most of the reports reveal that the current position in Canada is generally coherent with the approaches adopted in Australiaand England. Therefore, most of the afore discussed rules applicable in the Canadian context of CBD cases. Canadian courts also have determined the significance of the common PIL issues of appropriate forum and jurisdiction.

Besides, there are number of cases which develops the rules of PIL with regard to the aforesaid issues of jurisdiction and law of forum. However, Moran v Pyle National (Canada) Ltd is a landmark Canadian case on conflict of laws decided by the Supreme Court of Canada which adopted a more modern interpretation of jurisdiction and the location where tort was committed with contemplating the developed rules in PIL, which was sufficiently balanced fairness between the parties.

In addition, the same approach was followed in the case of Morguard Investments Ltd v De Savoye  that reveals the Canadian courts will only find jurisdiction over a foreign defendant where there is a “real and substantial connection” to the forum. Further, in the case of Muscutt v. Courcelles In its pre-revised form , a court would consider eight factors to determine whether it should accept the jurisdiction over an out of territory defendants who consented to being subjected to the Canadian court’s jurisdiction( Assumed Jurisdiction Test) and was subsequently discussed in Hunt v. T & N PLC and Beals v. Saldanha.

Further, considering the online defamation, PIL has developed to answer for such crises of cross border matters by introducing new rules and concepts that can apply for such situations. , in the case of internet, “publication” of defamatory fabrications befall at the location where the relevant material is accessed or downloaded, and that publication is an important factor of, where the tort was committed, which is similar to Australian approach. Most of the judgements and rules applied in CBD matters in Canada is evidential that, Canada follows the PIL rules of common law.

NEW ZEALAND

From the beginning of the development of PIL in New Zealand, was applied the common law rules and most of the cases discussed on the basis of the double actionability rule which was adopted by UK. for the purposes of online defamation in Nez Zealand, publication of material on the Internet, occurs when it is downloaded. In addition, The University of Newlands v Nationwide News Pty Limited, court determines where publication takes place when a defamatory article is posted on the Web.

Subsequently, the so-called “double-actionability“ rule under which, when an action is brought in New Zealand for a tort committed in another territory, the New Zealand court can hear the claim only if the tort is actionable in both jurisdictions, was abolished with the enactment of the “Private International Law (Choice of Law in Tort) Act 2017”.

Moreover, there are certain key features in the Act which support their legal system with their own laws addressing the development of PIL. Further, the Act can effectively apply in the context of CBD matters which carries the prominent PIL matters of jurisdiction and law of the forum. “The general rule is that the applicable law is the law of the country in which the events constituting the tort in question occur” which establish a place-of-the-wrong rule. Further, section 9 of the Act says the instance where the general rule displaced “…if the court determines in accordance with subsection (2) that in all the circumstances it is substantially more appropriate for the law of another country (country B) to be the applicable law”. This developments of the PIL itself can apply for a CBD cases, since it supports for the key issues arising when accompanying a foreign element. Withal, the Act itself supports with a clear idea on how those emanated issues can be solved in a cross-border matters while following the several general rules of PIL developed by the New Zealand.

ISSUES OF CROSS BORDER DEFAMATION LAW

Even though the different legal systems have adopted numerous PIL developments to sufficiently address the cross-border defamatory cases, yet there are issues with regard to the application and implementation of CBD law. Legal systems of several states have adopted separate legislations on this issue and sufficiently address the solutions for the key issues in CBD.

furthermore, internet and social media to this crisis creates not only further complicated and practical issues, but also possibly a more axiom challenges. Progressively, social media become prominent method of communication and socialization, wherefore larger consideration will need to be paid to the question of which law governs conditions of free speech on social media platforms. Because, most of the difficulties in resolving these questions is that the CBD in online is a twenty first century problem which remains regulated by a nineteenth-century rule.

In UK the general rule of double actionability which requires the tort committed actionable in both jurisdiction, is a loophole of the entire English law on PIL. This ambiguity can be used as a privilege to get away from the justice. For an example in the case of Phillips v. Eyre,governor of Jamaica exonerates from his liabilities to the killing and other assaults done in Jamaica, by proving that his tort committed was not actionable under Jamaica. However even though the Boy v. Chaplin was given a new interpretation for the general rule, sill it is doubtful when applying the general rule in the CBD law. Besides, UK Defamation Act use the term “serious harm” to prove the defamation, but it can be more favorable to the defendant. Therefore, such terms should not be biased. Additionally, since many people work and live online, identifying the relevant ‘public’ (whose reputation is damaged) within which a reputation is established, or speech should be protected, is another issue in the CBD cases.

RECOMMENDATIONS

The study focuses on giving some recommendations, on the purpose of answering the issues arises in PIL context with regard to the CBD issues. since there is no sufficient unification of law governing the CBD matters, there are many loop holes in this area.

Defamation law should seek to protect is, an online community, not only a territorial state community. For that, instead of making territorial rules there should be a uniform law governing the issues occur in CBD cases. Therefore, preparing a universal treaty or regional treaties which can bind all the states or certain states in a union, would be a solution. Further, the doubtful situations arise in the situations of applying General rule of UK, should be more elaborate and clarify according to the law of such legal system.

According to my point of view, double actionability rule must be adopted in a flexible manner and such rule should be clarified by a written law or should adopt their own way of finding jurisdiction and law of the forum, as in New Zealand.

It is recommended to use a term as in Canada (publication was likely to cause a reasonable person to think less of the plaintiff) Instead of using the term “serious harm” to prove the defamation, since such terms would be biased for the defendant which can get away the claimant from justice.

CONCLUSION

In 19^th century, with the developments in international trade, people-initiated contracts in international level. Thereafter, PIL responded to the pressure arises with the international trade through contract law. Further PIL as one of the prominent remedy available to states where there is a claim accompanying a foreign element, there was a temptation to find a solution via this vast and rapidly developing area of law(PIL).

However, as a result of that, PIL matured enough to respond in the areas of Marriage, Tort, and most of the committed acts where there is a foreign component. With that PIL address and support to Cross-Border Defamatory(CBD) cases as well. However, when considering the CBD matters, different countries adopt different rules of PIL under their own legal systems and CBD law also varied country by country. Even though there are loopholes in every legal system in this area of law, with the rapid development of PIL attempts to address issues of such cases and tries to find a solution via adopting proper PIL rules and laws.  Nowadays society increasingly loiter around online groups rather than within territorial neighborhood PIL is required to address CBD in a more proper manner than the existing legal frameworks. Since PIL is frequently changing to cope with matters being posed under new circumstances, it has attempted to cover CBD matters in a considerable amount.

REFERENCE

Legislations.

1. Private International Law (Choice of Law in Tort) Act 2017
2. UK Defamation Act 2013

Case Laws.

1. Anderson v. Eric Anderson Radio & T.V. Pty. – Ltd. (1965) 114 C.L.R. 20,
2. Bangoura v Washington Post and Burke v NYP Holdings Inc
3. Beals v. Saldanha[2003] 3 S.C.R. 416, 2003 SCC 72
4. Boy v. Chaplin [I971] A.C. 356
5. Hunt v. T & N PLC [1993] 4 S.C.R. 289
6. Monica Variato v. Thomas Variato [(2000) 2 Goa L.T. 149]
7. Moran v Pyle National (Canada) Ltd [1975] 1 S.C.R. 393
8. Morguard Investments Ltd v De Savoye  [1990] 3 SCR 1077
9. Muscutt v. Courcelles  (2002), 60 O.R. (3d) 20 (C.A.).
10. Phillips v. Eyre (1870) L.R. 6 Q.B. 1
11. Warren v. Warren [1972] Qd. R. 386

Internet Sources.

1. Alex Mills ‘The law applicable to CBD on social media: whose law governs free speech in ‘Facebookistan’?’ [2015] <https://www.tandfonline.com/doi/abs/10.1080/17577632.2015.1055942> accessed 9 March 2018
2. Baillah Masum, ‘Private International Law’ [2010] <http://www.academia.edu/1734539/Private_International_Law> accessed 27^th Feb 2018
3. Faruk Ahmmed Sani, ‘Origin and Development of Private International Law’<http://www.academia.edu/22851501/Origin_and_Development_of_Private_International_Law > accessed 4th March 2018 ‘history of Defamation’ 2013 <https://englishlegalhistory.wordpress.com/2013/10/18/history-of-defamation/ > accessed 6^th March 2018
4. Jennifer Agate, ‘The Defamation Act 2013–key changes for online’ [2013] <https://www.farrer.co.uk/Global/Briefings/-06%20Private%20Client/The%20Defamation%20Act%202013%20-%20key%20changes%20for%20online.pdf> accessed 12^th March
5. Janette McLennan, Luke Russ+ell and Jennifer Lambley, ‘A forum shopper’s paradise: is Australia set to become a “must see” destination for a libel tourist?’ [2016] <https://www.lexology.com/library/detail.aspx?g=96f0a7fe-9eae-4c62-aba4-e255deb13c96> accessed 15^th March 2018
6. M.Keyes & T.Wilson, Codifying Contract law, International and Consumer Law Perspectives (first publish 2014, Routledge, New York 2016) chap 3
7. Matt Sumpter, Daniel Kalderimis and Garth Gallaway, ‘New Zealand: Choice Of Law Bill A Winner For Tort Claims Brief Counsel’ <http://www.mondaq.com/NewZealand/x/538700/International+Courts+Tribunals/Choice+of+Law+Bill+a+winner+for+tort+claims> accessed 22 March 2018.
8.  Rebecca Rose,”Internet Defamation: Comparative Approaches to Jurisdiction & Some Best Practice Guidelines for Navigating the World Wide Web” [2009] < http://www.nzlii.org/nz/journals/NZLawStuJl/2009/5.html > accessed 16^TH March 2018
9. Slater and Gordon, ‘Defamation law in Australia’[2014] <https://www.slatergordon.com.au/blog/defamation-law-australia> accessed 15^th March  2018
10. Thecourt,ca, ‘Revising the Assumed Jurisdiction Test in Muscutt v. Courcelles’ [2010], < http://www.thecourt.ca/revising-the-assumed-jurisdiction-test-in-muscutt-v-courcelles/ > accessed 16^th March 2018
11. The Law Commission and the Scottish Law Commission,  ‘Private International Law Choice of Law in Tort and Delict’[1984], < https://www.scotlawcom.gov.uk/download_file/view/312/> accessed 13th March 2018
12. The University of Newlands v Nationwide News Pty Limited NZSC 16 SC 12/2006
13. Vanessa Wilson, ‘Publication Of Defamatory Material On The Internet’ <http://www.internationallawoffice.com/Newsletters/E-commerce/New-Zealand/Russell-McVeagh-/Publication-of-Defamatory-Material-on-the-Internet> accessed 22 March 2018.
14. Windeyer J; Hartley v. – Venn (1967) 10 F.L.R. 151. Cf. Harding, (1965) 7 West. Aust. L. Rev. 196, n.3; McClean, (1969) 43 A.L.J. 183
15. <https://www.springer.com/cda/content/document/cda_downloaddocument/9789462650312-c2.pdf?SGWID=0-0-45-1477021-p176811937> accessed 5^th March 2018
16. < http://www.raiuniversity.edu/rigin-nature-scope-law-tort-law-torts/ > accessed 6^th March 2018
17. <https://tort.laws.com/tort-law > accessed 7^th of March 2018