Case study

Jurisdiction and Defamation inCyberspace
LAW 402: LAW OF E-COMMERCE
UPON COMPLETION OF THIS WEEK’S
ACTIVITIES, YOU WILL BE ABLE TO:
•Describe the issues of choice of law and jurisdiction in
relation to contracts formed over the Internet.
•Critique the limited nature of regulated jurisdiction and the
legality of its control over the unlimited nature of Internet
communications.
•Explain the necessity of applicable jurisdiction rules for
Internet transactions.
JURISDICTION
Legal term for a court’s limitation on determining a dispute.
Issue: The Internet is not owned by anyone but it is regulated by
several.
Internet activities can have consequences, so how is the
jurisdiction determined?
JURISDICTION IN CYBERSPACE
Choice of Law: determining which set of laws apply to
a dispute between parties conducting business across
borders.
• Laws vary from country to country and sometimes
even between regions within a single country.
•Parties may choose to delineate which set of laws
will be in effect as a term of their agreement.
RULES OF PRIVATE INTERNATIONAL LAW
•In a contract, parties can identify the law which applies to the
contract and identify which country’s courts have jurisdiction to hear
the dispute arising from the contract.
•Parties may include an “express choice of law clause”
WHAT IF THERE IS NO “CHOICE OF LAW”
CLAUSE?
•When there is no choice of law clause, courts attempt to
find an implication of choice from the language in the
document.
•When there is not an implication, the contract will be
governed by the law of the jurisdiction most closely
connected.
DETERMINING THE MOST CLOSELY
CONNECTED JURISDICTION
•depends upon the subject matter, nationality or
residence of the parties, the place of performance
and other factors.
•After the proper law is determined, the rules of that
system are applied to the contract.
FORUM NON CONVENIENS
Issue: choice of forum- which court to hear an action.
• Each nation state determines its own laws and procedures- lex
fori- or the law of the forum.
• Each nation’s court system has to determine when and how it
should accept jurisdiction
• It takes into account factors: residence and nationality of the
parties, place or places of business, and the subject matter
DEFAMATION IN CYBERSPACE
Issue: A common view that the Internet is a place for
exercising “freedom of speech” has led far too many
individuals to believe that anything on the Internet should
be immune censorship. Yet, courts have disagreed with this
view, especially when it comes to defamation.
DEFAMATION IN CYBERSPACE
The Problem: there is not a universal definition of
defamation and there is not a set of elements that
define defamation for judiciary concerns.
UN International Covenant on Civil and
Political Rights (ICCPR)
Purpose: provides for freedom of expression
and the right to hold opinions.
•Balances the rights and freedoms with a
respect of “unlawful interference, privacy and
the protection of honor and reputation.”
DEFAMATION REFORM
Purpose: to systematize the legislative answer
to the case law across all state and territory
jurisdictions
ELECTRONIC PUBLICATION DEFAMATION
ACTIONS
Increases the scope of defamation actions because it
can:
•Create an additional mode of communication
•Make online publication of material, even that
intended to be private, further reaching
•Affect the amount of damage due to the broader
reach of material
LEGESLATIVE CONSIDERATIONS OF
DEFIMATION:
•Statute of limitations
•Single Publication Rule
•Single Controversy Principle
•Single Cause Rule
ONLINE DEFIMATION LAWS
•Still in early days of development and interpretation
•General principles have emerged
Concluding Consensus: When it comes to mitigating risk, it
is wise for forum providers not to provide editorial control. It
is also wise for the providers to advertise this aspect widely.
EMPLOYER ADVISEMENT
Preventative Measures: ensure that there are systems in
place to prevent employees from putting the firm at risk.
Include staff training, an Internet Code of Conduct, and
guiding principles on the responsibilities and expectations
of every employee who is exposed to the internet.