Presented at the 7th Cornell Inter-University Graduate Student Conference, April 2011.
In the past decade or so, internet libel has become one of the hot topics in internet law. Internationally, courts have dealt with an enormous amount of cases brought by both the suppliers and consumers of the internet services. Although the advent of the World Wide Web has come with many legal problems; this paper will only focus at the problems that are being faced by the victims of defamatory speech on the internet in trying to seek compensation through the courts. These problems include, inter alia, the reluctance of the courts in unmasking the identity of the authors of the defamatory speech where such speech is posted in blogs where the true identity of the author is not known, jurisdiction, choice of law and enforcement.
There are some crucial points that are worth emphasizing from the beginning. The problems that victims of defamatory speech posted on the internet face are caused by the fact that internet speech is often anonymous and many speakers on the internet employ pseudonymous identities. The international connectivity of the internet, its speedy transmission of huge amounts of data, its lack of respect for national borders has caused problems more diverse than lawmakers and courts could have ever imagined. This has made it extremely easy for "unknown" persons with an internet connection to bypass mainstream media and speak directly to thousands, if not millions, of people similarly situated. This makes it very easy for a person in, say, Bangladesh to post defamatory statements about an American citizen via a computer situated in Bangladesh - where (as discussed in detail below) the law of, and defenses to, defamation in may be very different or, in some cases, almost nonexistent. Even if the identity of the author(s) is known, questions such as what country should have jurisdiction to hear the suit for damages, which country's law should be applied to that suit and, if judgment is obtained, how it can be enforced if the author of the internet defamatory speech is domiciled outside the jurisdiction of the court, as is usually the case?
As already mentioned above, the most common feature of internet libel or defamation is that it is transnational. In such cases, the defamed plaintiff will be faced, first, with the problem of where he or she may bring the suit. Of course in doing so, the plaintiff will look at the jurisdiction which is most favorable to plaintiffs in libel suits. It might be advisable for an Australian plaintiff who was defamed by, say, an article in Wall Street Journal to sue the defendant newspaper in Australia (as was the case in Dow Jones and Co v. Gutnick (2002) HCA 56, 77 ALJR 255 where the plaintiff sued the Wall Street Journal in Victoria, Australia for statements that it had published online that implied that he was a money launderer) than to bring the suit in New Jersey (United States of America) because the plaintiff has slim chances of winning the suit and/or being rewarded meaningful damages because, unlike in Australia, freedom of speech in the United States enjoys broader constitutional protection and United States courts are keen to protect the First Amendment right of speakers.
It is critical to note that even in countries where such legitimate forum shopping is allowed by national laws, the question that a victim of defamatory statement may be confronted with is; can a plaintiff sue for damage caused by defamatory statements on the internet in every jurisdiction where the statements were published? If so, should the plaintiff be allowed to sue only in countries where he or it (in the case of legal persons) has reputation? If such reputation is recognized almost internationally, for example where the plaintiff is an internationally recognized celebrity or an international company, should he or it be allowed to sue in each and every jurisdiction since the internet is transnational? Or should suits be limited to countries which share the same language used in the internet post? More precisely, where a defaming online post originated in Chile and written in Spanish, should a company with international reputation which has been defamed by the publication be allowed to sue only in Spanish speaking countries?
Date of Authorship for this Version
Internet, Libel, Defamation, Cyberspace
Chitsa, Sarudzai, "Name Calling On The Internet: The Problems Faced By Victims Of Defamatory Content In Cyberspace" (2011). Cornell Law School Inter-University Graduate Student Conference Papers. 48.