Page 105 - Law and the Media

Law and the Media
4.2.2 Jurisdiction

One of the major features of Internet defamation is that the defamatory statement will be
published to third parties throughout the world. This gives the prospective claimant a choice
of jurisdiction in which to issue proceedings, as well as a choice of law.

An action for defamation can arise in the country where the defamatory statement is
downloaded and read on screen by third parties. However, countries have different legal
principles of defamation. The claimant must therefore consider the legal principles of each
country of publication as well as other important matters such as procedure, costs and the
likely level of damages in order to decide where best to issue defamation proceedings.

The courts are beginning to recognize the complex issues involved in defamatory statements
published on the Internet and read in other jurisdictions. In 2000, the House of Lords held
that a Russian businessman could sue a United States magazine called Forbes in England in
respect of alleged defamatory statements published on the magazine’s web site (Berezovsky
v Michaels (2000)). In the case of Gutnick v Dow Jones (2001) the Australian Supreme Court
allowed Gutnick, an Australian, to sue Dow Jones, a United States company, for defamation
in Australia in relation to an article published by Dow Jones on its web site. The court
rejected the contention by Dow Jones that the proceedings should take place in the United
States because the article was only intended to be read there.

Publishers must attempt to comply with the laws of every country where an article can be
read in order to avoid proceedings for defamation in another jurisdiction that may be less
favourable than the publisher’s own.

Global publication also raises the issue of enforcement of orders in other jurisdictions. Many
courts do not recognize judgments in other jurisdictions because there is no reciprocal
mechanism in place or because the law is contrary to their own. Claimants must consider
whether it is worthwhile issuing proceedings in a jurisdiction where there is little likelihood
of enforcement.

4.2.3 European E-commerce Directive

In order to combat the problems posed by the application of different legal principles in
different jurisdictions, the European Union, of which the United Kingdom is a Member State,
approved a directive in 2000 aimed at harmonizing certain legal aspects of ‘information
society services’ in Europe – in particular electronic commerce (the ‘E-commerce
1
Directive’) (2000/31/EC). The Government is required under European Union law to give
domestic effect to the E-commerce Directive by 17 January 2002.

1
The E-commerce Directive can be found at the European Union On-Line web site at www.europa.eu.int at
http://europa.eu.int/eur-lex/en/lif/dat/2000/en_300L0031.html.
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