EMERGING AREAS/INFORMATION TECHNOLOGY LAWS/JURISPRUDENCE/LEGAL SYSTEM/UPDATE ON NEW LAWS AND LEGISLATION

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REGULATION OF DEFAMATION OVER THE INTERNET : JURISDICTIONAL ISSUES
by Tanmay Amar & Sarayu Natarajan*

Cite as : 2005 PL WebJour 2

1. Introduction

With tremendous rise in the use of the internet as a medium of communication, chances of use of the web as a forum for publication of defamatory content has increased multifold and there is a need for a clear, coherent expression of the law in this area. While the need for a uniform law to govern internet transactions is undoubted, the question is whether the traditional law of defamation can be applied to the internet without any changes.

Defamation traditionally requires the proof of publication of a matter intentionally and with malice, thus lowering the reputation of a person in the eyes of right thinking people. In the context of the internet, the proof of these elements acquires new dimensions: determining the place of publication, establishing what constitutes a publication, ascertaining which country's law applies; and deciding whether an individual can be subject to the jurisdiction of the court of another country based on a defamatory statement disseminated over the internet.1

The law of defamation requires a delicate balance between the right of persons not to be defamed and the right of others to engage in free speech.2 This is harder to maintain in the case of the World Wide Web.

Since internet allows transactions between persons of various jurisdictions, an international agreement (to be crystallised into a convention, later) is required for any regulation governing defamation over the internet.3 However, in arriving at a uniform law, varying standards adopted by jurisdictions across the world and the point of balance adopted by them have to be kept in mind. The failings of domestic regulation were aptly demonstrated in Playboy Enterprises v. Chuckleberry4

2. When does publication occur on the internet?

The traditional common-law rule is that defamation occurs where the matter is read and comprehended. In the case of internet publication occurs when the material is read by the reader, and the delivery of information occurs before comprehension by the reader. In many cases of internet defamation, users would have accessed the defamatory material only after they request it to be "pulled" from the server. While the article may have been placed by the defendant on the internet, but once a "pull" request is made, the defendant has no control over it.5

Satellite signals are intentionally transmitted into some jurisdictions.6 Unlike television, in case of internet, the requirement of intention to transmit to that particular jurisdiction, or at least a minimum contact with that jurisdiction is required to be proved.7

3. Tests for determining jurisdiction

3.1 Totality of contacts

In totality of contact analysis8, the court gathers and weighs all online contacts that the defendant has with the forum, electronic or non-electronic, to determine whether sufficient minimal contacts exist to assert specific jurisdiction.9

In Rubbercraft Corpn. of California v. Rubbercraft, Inc.10, the court, after explaining that a passive website alone is insufficient to convey jurisdiction in the forum, identified Rubbercraft's contacts like advertisement by web page and a nationally circulated periodical, operation of a web page and sales in the forum of about $20,000 in that year, as being sufficient to convey jurisdiction to the forum.

3.2 Effects test

The effects test approach as enunciated in Calder v. Jones11, essentially inquires whether the forum State is the focal point of the defamatory story and the harm suffered. The inquiry requires an examination of whether the defaming party had the intent to cause injury in the forum or whether knowledge could be reasonably presumed that injury would be caused in the forum.

In California Software, Inc. v. Reliability Research12, the court explained that even if defendant did not send a tangible object into the forum or was not present in the forum, he is not at liberty to use the unique characteristics of internet technology to avoid jurisdiction. The test was further clarified in Young v. New Haven Advocate13, where the court held that jurisdiction would be established if the publisher's intent was to reach the readers in the forum.

3.3 Keeton test

The Keeton test approach14 transports a traditional multi-State defamation jurisdictional analysis into cyber-libel thus allowing exercise of jurisdiction where the defamatory statement is published and delivered to the forum.

In TELCO Communications v. An Apple A day15, the court held that even though the evidence showed that the defendant had no other actual contacts with the forum apart from a defamatory statement on a passive website, it was subject to the exercise of jurisdiction.

In Gutnick5 the High Court of Australia held that a court in Victoria could exercise jurisdiction over an American defendant who had defamed an Australian resident.

While it is true that Gutnick5 is unlikely to have succeeded in the USA, where defamation laws are much less strict, the Court failed to recognise that such a decision may result in Australians being cut off from internet contents due to the fear of an unfriendly forum. The decision makes it necessary for internet publishers to have contemplated the defamation laws of all countries where there is a reasonable likelihood of access, especially if the laws are stricter than where the server is based. The alternative is to erect firewalls around countries where the person resides, so that residents there have no access to the site.

The Court recognised that the public interest in the free flow of information and opinion stands in broad opposition to the private interest in the security of reputation.16 The problem arises when international disputes involve choice of law concerns between competing forums that strike different balances between these interests.17

However, the broad approach of the Commonwealth countries, focussing on the harm caused to the plaintiff18 is entirely at variance with the approach adopted by the American Courts.

3.4 Nature of the website or Zippo approach

A distinction relevant in law, but not addressed in the Gutnick case5, is the difference between paid and subscription sites. Moderators of paid sites have control over who accesses the site and its material. However, publication within a jurisdiction may nevertheless have occurred, despite the exercise of control, as the website may have been accessed by someone in the plaintiff's country who has a credit card registered in another country. In such a case, the requirement of intent to publish is not satisfied.

A fourth approach, embodied in Zippo Mfg. Co. v. Zippo Dot Com19 contemplates that it is not sufficient to show that it is possible for someone to reach into cyberspace and bring the materials on to the screen in that particular jurisdiction—there has to be evidence that the defendant used the internet for a commercial purpose to enter that particular jurisdiction.20

Where a defendant clearly does business over the internet, personal jurisdiction is proper. On the other hand, a passive website that does little more than make information available to those who are interested in it does not create grounds for the exercise of personal jurisdiction. The middle path is occupied by interactive websites where a user can exchange information with the host computer. Reasonableness of the forum depends on the level of interactivity and the commercial nature of the information exchanged. This is somewhat similar to the totality of contacts approach, but that approach takes into account electronic as well as non-electronic contacts with the forum, while only electronic contacts are considered here.

4. Conclusion

The Keeton approach has to be discounted altogether because of manifest unreasonableness. The Zippo approach and the totality of contacts approach are similar, but the Zippo approach should be considered to be superior, as it does not take extraneous factors such as non-electronic contact into account. However, in the absence of an international agreement, the effects approach seems to be the best.

* Students, IV Year, BA, LLB (Hons.), National Law School of India University, Bangalore. Return to Text

1. Tara Blake Garfinkel, Jurisdiction Over Communication Torts: Can You Be Pulled into Another Country's Court System for Making a Defamatory Statement Over the Internet? A Comparison of English and US Law, 9 Transnat'l Law 489, 492. Return to Text
2. Bryan P. Werley, Aussie Rules: Universal Jurisdiction over Internet Defamation, 18 Temp. Int'l & Comp. L.J. 199, 219. Return to Text
3. Para 1.16 of the British Law Commission Report on Defamation and the Internet, cited from (visited on 7th August, 2004). Return to Text
4. 1996 US Dist LEXIS 8435 (SDNY 19 June, 1996), cited from R. Matthan: The Law Relating to Computers & the Internet, p. 2 (New Delhi: Butterworths, 2000). In this case, the defendant was an Italian, who had, using an Italian server, set up a website, under the name "Playmen". The court had earlier issued a permanent injunction against the defendant from using that name in any magazine sold, published or distributed in USA. The court accepted that it could not order the website to be shut down as that would amount to asserting that every court in the world had jurisdiction over all information providers on the internet. Return to Text
5. Gutnick v. Dow Jones & Co. Inc., 2002 HCA 56, 73 Hereinafter Gutnick. Return to Text
6. No Bad Puns: A Different Approach to the Problem of Personal Jurisdiction on the Internet, 116 HARV. L. REV. 1821, 1821-22. (Hereinafter "No Bad Puns") Return to Text
7. Ibid. at pp. 1821-22. Return to Text
8. B.J. Waldman, A Unified Approach to Cyber-Libel: Defamation on the Internet, A Suggested Approach, 6 RICH. J.L. & TECH. 9, 11. Return to Text
9. Supra note 6, at p. 1824. Return to Text
10. 1997 WL 835442 (C.D. Cal.). Return to Text
11. 465 US 783. In this case, the Court found jurisdiction to have been properly asserted in California when the libelous material was produced in Florida because the subject of the defendant's article was in California and it injured the plaintiff's reputation in California. Return to Text
12. 631 F. Supp. 1356 (C.D. Cal. 1986). Return to Text
13. 2002 US App. LEXIS 25535 (4th Cir.). Return to Text
14. Laid down in Keeton v. Hustler Magazine, Inc., 465 US 770 (1984). Return to Text
15. 977 F. Supp. 404 (E.D. Va. 1997), cited from D.L. Kidd, Casting the Net: Another Confusing Analysis of Personal Jurisdiction and Internet Contacts in TELCO Communications v. An Apple A Day, 32 U.RICH.L.REV. 505, 509. Return to Text
16. Adrian Briggs, The Duke of Brunswick and Defamation by Internet, 119 Law Quarterly Review 119, 210-15. Return to Text
17. B.P. Werley, Aussie Rules: Universal Jurisdiction over the Internet, 18 Temp.Int'l & Comp.L.J. 199, 219-20. Return to Text
18. Supra note 5, at p. 80; Berezovsky v. Michaels, (2000) 1 WLR 1004 (HL), at p. 1008. Return to Text
19. 952 F. Supp. 1119 (W.D. Pa. 1997). Return to Text
20. Braintech Inc. v. Kostiuk, (1999), 63 B.C.L. R 3d, 156 cited from www.lawsonlundell.com. Return to Text