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Defamation in the Digital Media

Written by Nuria Monjas on 13 October 2017

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Nowadays, the internet is a prominent broadcast medium with a potentially global scope that allows information to reach us all. At the same time, this positive aspect raises problems in determining the appropriate jurisdiction, since there is not a universal rule in this regard.

Unfortunately, Rome II European Union Regulation on non-contractual obligations which is universally applicable, both within and outside the European Union, excludes from its field, the violation of privacy and rights related to defamation. As indicated above, it lacks a uniform rule which allows making clear decisions concerning the rules of legal jurisdiction. We can only find some agreements at regional level. In the European sphere we have Brussels I Regulation (Regulation 44/2001/EC), replaced by Regulation 1215/2012 of the European Parliament and of the Council concerning jurisdiction, recognition and enforcement of judgments in civil and commercial matters in the EU. However, this rule does not guarantee a uniform solution on an international level.

Generally, in the event of defamation the competent court is the domicile court of the defendant (the victim may bring the action before the courts of the Member State where the publisher of the defamatory publication is established), which follows the prevailing criteria within the European Union (Article 2 of the Brussels I Regulation).

In rare cases, as an alternative to the defendant's domicile, the courts have considered it appropriate to hear and decide matters where the alleged victim has their center of interests. To be able to apply this criterion it must have sufficient motivation, taking into account the notoriety of the damage caused. Furthermore, it is necessary to prove that the material has been published and read in said place. The TJUE judgment on 25 October 2011 (case eDate Advertising and Olivier Martinez) articulated an unconventional interpretation based on Article 5, number 3 of Regulation 44/2001, giving the possibility to bring an action before the courts of the place of main interests of the alleged victim.

Conversely, the interpretation given by the Court in Fiona Shevill (Judgment CJEU 7 March 1995), reinforces the general rule of the defendant's domicile, allocating jurisdiction to the courts of the place where the damage arises. They may know the totality of the damage because it is in the place where the publisher of the publication is established. With regard to the applicable law, it is settled case-law that the national rules are applicable by the court when the application of those rules does not jeopardise the effectiveness of the applicable Convention.

The situation outside the EU is similar. US law recognises two jurisdictional criteria. There is a general jurisdiction which will be the defendant´s domicile court as long as it maintains "continuous and systematic contact with the State of the forum" and a specific jurisdiction, based on international acts, in which the State with jurisdiction will be the  one with relation to the infringement. A single download in that State is enough. In the United States, the current legal system is the Common Law in which judicial decisions have the force of law. Every law is subordinate to the federal Constitution (always prevailing, in case of conflict, federal law to the law of a state). To determine the jurisdiction they apply the Federal Rules of Civil Procedure (FRCP), promulgated by the United States Supreme Court in 1938, with major modifications since then. As for the applicable law, in 2010, and in response to "defamation tourism," the Speech Act was passed; it is a federal statutory law that makes foreign libel convictions unenforceable in US courts, unless applied law offers as much protection as the famous First Amendment of the United States Constitution (free speech).

There are times when courts differentiate between digital and printed media. In respect of printed media, competent courts are those of the place of publication of the information, unlike cases where the information is emitted by digital means. This difference seems unreasonable; in present-day society once the information is released we lose control over it, allowing the possibility of a digital medium to collect the information disseminated by the printed medium. For this reason, it is logical to consider the allocation of jurisdiction to the domicile courts of the defendant or the establishment of the publisher.

The complexity of resolving the disputes arising from internet publications is evident when certain courts have declined their jurisdiction. In order to guarantee legal certainty, the rules that lay down the competent court should be more defined, thereby avoiding the possibility of a person being sued in a court which they could not have foreseen.

Nuria Monjas is a Spanish Lawyer working in association with Lawdit and Delcanto Chambers http://www.delcantochambers.com/

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