{"title":"跨境网络诽谤冲突及其应对:两项建议","authors":"Dan Jerker B. Svantesson, Symeon C. Symeonides","doi":"10.1080/17441048.2023.2236419","DOIUrl":null,"url":null,"abstract":"AbstractConflicts of laws in cross-border defamation cases are politically and culturally sensitive and their resolution has always been difficult. But the ubiquity of the internet has increased their frequency, complexity, and intensity. Faced with the realities of the online environment—including the virtual disappearance of national borders—several countries have acted unilaterally to preserve their values and protect their interests. Some countries enacted laws favouring consumers or other potential plaintiffs, while other countries took steps to protect potential defendants, including publishers and internet service providers. As a result, these conflicts are now more contentious than ever before. We believe there is a better way—even-handed multilateral action rather than self-serving unilateral action. In this article, we advance two proposals for multilateral action. The first is a set of soft law principles in the form of a resolution adopted by the Institut de Droit International in 2019. The second is a proposed Model Defamation Convention. After presenting and comparing these two instruments, we apply them to two scenarios derived from two leading cases (the first and one of the latest of the internet era) decided by courts of last resort. The first scenario is based on Dow Jones & Company Inc v Gutnick, which was decided by the High Court of Australia in 2002. The second is based on Gtflix Tv v. DR, which was decided by the Court of Justice of the European Union at the end of 2021. We believe that these two instruments would produce more rational solutions to these and other cross-border defamation conflicts. But if we fail to persuade readers on the specifics, we hope to demonstrate that other multilateral solutions are feasible and desirable, and that they are vastly superior to a continuing unilateral “arms race.” In any event, we hope that this article will spur the development of other proposals for multilateral action.Keywords: Internetdefamationcross-border casesjurisdictionapplicable lawrecognition and enforcement of foreign judgmentsinternational law reform proposals Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 The term “libel tourism” describes situations in which a non-resident plaintiff sues a non-resident defendant in a tenuously connected country solely because of its pro-plaintiff defamation law. Until the enactment of the Defamation Act 2013, England was a magnet forum for defamation plaintiffs—mostly the rich and famous—because of its pro-plaintiff substantive law, its lenient jurisdiction law, and its forum-centric choice-of-law rules. See Trevor C. Hartley, “‘Libel Tourism’ and Conflict of Laws” (2010) 59 International and Comparative Law Quarterly 25.2 As an American court noted in the famous Yahoo! case, The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China’s laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom’s restrictions on freedom of the press. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F.Supp.2d 1181, 1186–87 (N.D. Cal.2001).3 [2002] HCA 56, 210 CLR 575, 194 ALR 433, 77 ALJR 255.4 See, e.g., New York Times, Dec. 11, 2002, at A34 (“A Blow to Online Freedom”).5 Wall Street Journal, Dec. 18, 2002, at A19 (Letters to the Editor: “Free Speech Will Survive Kangaroo Court”).6 Gutnick, [2002] HCA 56, at ¶ 200, Callinan J, concurring.7 See Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 U.S.C. § 4102 (2010). This Act prohibits recognition of foreign defamation judgments unless: (1) the foreign court’s jurisdiction comported with the requirements of the US Constitution’s Due Process clause, and (2) the defamation law applied by the foreign court provides “at least as much protection for freedom of speech and press” as provided by the First Amendment of the US Constitution.8 See 47 U.S.C. § 230(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).9 See Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/ EC (General Data Protection Regulation).10 Fourteen out of the eighteen countries that have enacted specific choice-of-law rules for cross-border infringement of personality rights conflicts (including defamation) allow plaintiffs to choose the applicable law from among the laws of several states, such as the state of injury, the plaintiff’s home state, the defendant’s home state, etc. See infra n 44 and accompanying text.11 The IDI was founded in 1873 in Ghent, Belgium, with the goal of “promot[ing] the progress of international law”—both public and private—by, inter alia, “striving to formulate the general principles of the subject, in such a way as to correspond to the legal conscience of the civilized world.” IDI statute, Art 1.12 The Resolution is extensively discussed in Symeon C Symeonides, Cross-Border Infringement of Personality Rights via the Internet (Brill, 2021) 148 et seq. Professor Erik Jayme of Heidelberg served as co-rapporteur. The rapporteurs were assisted by the IDI’s Eighth Commission consisting of Professors Bernard Audit, Jürgen Basedow, Michael Bogdan, Léna Gannagé, Hélène Gaudemet-Tallon, Paul Lagarde, Alain Pellet, Emmanuel Roucounas, and Walter Rudolf. Symeonides had sole responsibility for the accompanying article-by-article commentary.13 See Dan Jerker B Svantesson, Private International Law and the Internet (Wolter Kluwer, 4th edn, 2021) 650–79 (with extensive article-by-article commentary).14 Resolution, Art 1.2.15 Resolution, Art 7.1-2. However, if the plaintiff sues in the defendant’s current “home state” which was not the defendant’s home state at the time of the injury, the applicable law is the internal law of the state that, considering all the circumstances, has the closest and most significant connection. Ibid Art 7.2.16 Resolution, Art 5.1(c) and (d).17 See Resolution, Art 1.11(a)-(b).18 Resolution, Art 5.1(a).19 Resolution, Art 1.8 (emphasis added).20 See Resolution, Art 4(a).21 Resolution, Art 4(a).22 See Case C-68/93 Shevill [1995] ECR 1-415.23 See Resolution, Art 5.3.24 Resolution, Art 5.1(c).25 Resolution, Art 4(c).26 2018 SCC 28.27 Case C-194/16 Bolagsupplysningen OÜ EU:C:2017:766.28 See Cases C-509/09 and C-161/10 eDate Advertising GmbH v. X and Martinez v. MGN Limited, EU:C:2011:685, [2011] ECR I-10269.29 Supra n 22.30 See Case C-251/20 Gtflix TV v. DR, EU:C:2021:1036. Gtflix is discussed infra at F.1.31 The same difference exists with the jurisdictional bases of the Victoria court in Gutnick, and similar bases available in England and Wales before the Defamation Act 2013, as well as other countries that follow the mosaic principle.32 Subparagraphs (a) and (b) of Art 1.11 define “home state” for both defendants and plaintiffs as the state of domicile or habitual residence for natural persons and the state of the statutory seat, principal place of business, incorporation or formation, for legal persons. In addition, subparagraph (c) provides that, if a person suffers injury to its professional or business interest, then the state in which that person has its principal professional or business establishment is considered that person’s home state.33 eDate Advertising (supra n 28), at ¶ 49. The Court also noted that, depending on the circumstances, the plaintiff’s centre of interest may be in the state where the victim “pursu[es] . . . a professional activity.” Ibid. The Resolution covers this possibility through Art 1.11(c), which refers to the plaintiff’s professional or business home. See supra, previous note.34 Even if the plaintiff’s home state does not qualify as the plaintiff’s centre of interests, there is still good reason to allow jurisdiction there, as long as the plaintiff suffered injury there. However, because the Resolution is also concerned with fairness for the defendant, it provides defendants with the jurisdictional escape discussed below.35 Resolution, Art 5.2.36 See Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984).37 See Calder v. Jones, 465 U.S. 783 (1984).38 It also deviates from these regimes by not authorising jurisdiction in cases such as Gtflix TV v. DR, (supra n 30), in which the forum’s only connection is the occurrence of some injury. See Scenario 2, infra.39 Art 6.2 of the Resolution provides that a pre-dispute choice-of-court agreement is enforceable if: “(a) it was freely negotiated, expressed in writing and covers non-contractual obligations; (b) all parties engaged in commercial or professional activity and the agreement was part of that activity; and (c) it is otherwise valid under the law applicable under the private international law rules of the forum State.”40 Resolution, Art 5.1.41 The two exceptions apply to cases in which the trial takes place (1) in a state that is the defendant’s home state at the time of the trial but not at the time of the injury, or (2) in a state designated in a valid choice-of-court agreement which is not one of the states that would have jurisdiction under Art 5. In both of those cases, the applicable law is that of the state that has the “closest and most significant connection” to the parties and the dispute. See Art 7.3, second sentence; Art 7.5, second sentence. However, as explained below, these cases are rather infrequent.42 See supra B.4(a)(i).43 See Symeon C Symeonides, Private International Law: Idealism, Pragmatism, Eclecticism (Brill, 2021) 203–08. For detailed discussion of most of these rules, see Symeon C Symeonides, Codifying Choice of Law Around the World (OUP, 2014) 59–65.44 See Symeon C Symeonides, “Infringement of Personality Rights via the Internet: Jurisdiction and Choice of Law” (2022) Lex and Forum 311, 323. The 14 countries are Albania, Bulgaria, Lithuania, Moldova, Montenegro, Romania, Serbia (draft), Switzerland, Turkey, Czech Republic, Monaco, Hungary, Belgium, and Poland. These rules give plaintiffs between two and five choice-of-law options. The four countries that do not authorise pro-plaintiff choices are Australia (six states), China, Japan, Norway (draft), and Taiwan. See ibid.45 That law “shall govern all substantive issues” between the parties, that is, no dépeçage, see Art 7.4.46 Art 8.2 of the Resolution provides that a pre-dispute choice-of-law agreement is enforceable if: “(a) it was freely negotiated, expressed in writing and clearly covers non-contractual obligations; (b) all parties engaged in commercial or professional activity and the agreement was part of that activity; and (c) the application of the chosen law is not manifestly incompatible with the public policy (ordre public) of the forum State or the State whose law would be applicable under Article 7.”47 Resolution, Art 8.1.48 See Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 U.S.C. § 4102 (2010).49 Art 32 which relates to situations where the application of the Model Convention may be displaced in favour of other prior international agreements with which the Model Convention overlaps.50 For more on this useful, but these days typically overlooked possible test, see Dan Jerker B Svantesson, “Jurisdictional Issues in Cyberspace: What Should Article 7 – Consumer Contracts, of the Proposed Hague Model Convention, Aim to Accomplish in Relation to E-commerce?” (2001) 17 Computer Law and Security Report 318–25.51 States that have signed the ICCPR are expected to act in this manner. However, Art 17 serves as a reminder.52 Provided that the requirement associated with lodging communications are met.53 This case has been strongly influential both in Australian courts and abroad. Furthermore, it has been subjected to extensive and ongoing academic scrutiny. For a recent example see, for example, K Pappalardo and N Suzor, “Dow Jones & Company v Gutnick (2002)” in D Rolph (ed) Landmark Cases in Internet Defamation Law (Hart Publishing, 2019) 217–41.54 Dow Jones & Company Inc. v. Gutnick (2002) 210 CLR 575.55 [2012] SCC 19.56 [2018] SCC 28.57 See Resolution, Art 1.11(a).58 Resolution, Art 5.1(c). See also Art 4(c).59 See Resolution, Art 1.11(b).60 See Resolution, Art 1.8.61 See Resolution, Art 5.1(c) and Art 4(c).62 31 F.4th 135, at 141 (2nd Cir. 2022).63 See infra E.2(e).64 By contrast, if Mr. G were to sue in State Y, Bmag would not have any jurisdictional escape. See Resolution, Art 5.1 (a) or (b).65 By contrast, if Mr. G were to sue in State Y, the internal law of that state will govern under Art 7.1 or 2, without any escape.66 Under Art 7.3, the request must encompass all substantive issues. In other words, Mr. G may not pick and choose only certain parts of State Y law.67 See supra B.4(a)(i).68 See supra E.2(a).69 These states are the defendant’s home state and the state of the defendant’s critical conduct. See Resolution, Arts 5.1(a)–(b), and 7.1–2.70 See Resolution Arts 5.1(c)–(d), and 7.3–4.71 The rapporteur’s official comments accompanying the Resolution address this precise scenario by using the Bolagsupplysningen case (supra n 27) as an example of a case in which the plaintiff had its domicile in Estonia but conducted most of its activities in Sweden. The comments state that in that case “Sweden would qualify as the state of the ‘most extensive injurious effects’ because, in the words of the CJEU ‘any injury to [the plaintiff’s] reputation would be felt most keenly there.’” Resolution, Art 5, cmt. (d).72 Model Convention, Art 3.73 It is assumed that Art 32 of the Model Convention is not applicable in the circumstances in the absence of information regarding the countries’ participation in other relevant international instruments.74 However, if Mr. G were to seek an injunction, Art 9 (read in the light of Arts 10 and 11) would presumably require him to do so in State Y rather than State X. This restrictive approach is justified from the fact that injunctions are considerably more intrusive on freedom of expression than subsequent damages. See Svantesson, (supra n 13) at 667–68.75 Art 14 provides that “A court having jurisdiction based on Article 5 shall apply the laws, other than the rules of private international law, of the State where the court is located (lex fori).”76 See further: D Svantesson, “Jurisdiction in 3D – ‘Scope of (Remedial) Jurisdiction’ as a Third Dimension of Jurisdiction” (2016) 12 Journal of Private International Law 60–76; D Svantesson, “‘Scope of Jurisdiction’ – A Key Battleground for Private International Law Applied to the Internet” (2020/21) 22 Yearbook of Private International Law 245–74.77 See Resolution, Art 3.2.78 As noted earlier, this assumption may be disputed in a case such as Scenario 1, in which only 5 per cent of the viewers were based in State X, compared to 95 per cent of the viewers who were based in State Y. See supra.79 See Resolution, Art 5.2.80 Ole Lando, “Lex Fori in Foro Proprio” (1995) 2 Maastricht Journal of European and Comparative Law 359. The origins of this line of thinking can be traced back to different writings of A Ehrenzweig. See also Lando, ibid. See further Svantesson (supra n 13) 592–93.81 See supra B.4(a)(i) and E.2(e).82 Supra n 30.83 Shevill, supra n 22.84 See eDate Advertising (supra n 28); Bolagsupplysningen OÜ (supra n 27), and Case C-800/19 Mittelbayerischer Verlag KG EU:C:2021:489. These cases are discussed in D Svantesson & I Revolidis, “From eDate to Gtflix: Reflections on CJEU case law on digital torts under Art. 7(2) of the Brussels Ia Regulation, and how to move forward” in Paris Arvanitakis (ed) National and International Legal Space: The Contribution of Prof Konstantinos Kerameus in International Civil Procedure (Sakkoulas Publications, 2022) 319–71.85 Case 21/76, EU:C:1976:166, [1976] ECR 1735.86 Ibid at ¶¶ 32, 35, 39.87 See eDate Advertising (supra n 28); and Bolagsupplysningen (supra n 27).88 See Resolution, Art 5.1 (a)-(b).89 See Resolution, Art 5.1(c)-(d).90 Model Convention, Art 3.91 Art 4 again makes clear that the matter of jurisdiction is to be determined by reference to the rules of the Model Convention only, and since there is no indication of any choice of court agreement, we can again ignore Art 6. Further, Arts 7–12 are inapplicable to the claim of damages. Most importantly, there is no indication that the defendant “has taken reasonable steps to avoid contact with that State” (Art 12). It is also assumed that Art 32 of the Model Convention is not applicable in the circumstances in the absence of information regarding the countries’ participation in other relevant international instruments.92 Svantesson (supra n 13) at 671.93 Model Convention, Art 9. Art 9 provides that a plaintiff may also bring an action in defamation “in accordance with the preceding Articles” to prevent injury from occurring, and that this action must be brought in the state in which the defendant is expected to perform the injuring act. This wording may create an internal conflict because “the preceding articles” provide that the defamation action must be filed in the state of injury. To avoid the conflict, the quoted phrase should be read as referring to the other elements of the defamation action, but not to the state where that action must be filed.94 Model Convention, Art 11.95 Indeed, the Model Convention to be presented in the next edition will reconsider the entire approach to rectification and removal.96 According to its website the Network is a non-profit and neutral “multistakeholder” organisation “addressing the tension between the cross-border Internet and national jurisdictions … [by] facilitat[ing] a global policy process engaging over 400 key entities from governments, the world’s largest internet companies, technical operators, civil society groups, academia and international organizations from over 70 countries.” https://www.internetjurisdiction.net/about/mission97 See Dan Jerker B Svantesson, Internet & Jurisdiction Global Status Report (Internet & Jurisdiction Policy Network, 2019).98 Ibid at 14.99 Ibid. See also ibid at 2 (“Clarifying how existing national laws apply in cyberspace and developing new balanced frameworks to address abuses, will enable the digital economy to protect human rights and will determine the shape of the emerging digital economy. To preserve the open, cross-border nature of the internet, policy coherence and legal interoperability between multiple regimes must be established. This requires communication, coordination and, ultimately, cooperation among all stakeholders.”).100 This phrase is attributed to President Harry S Truman.","PeriodicalId":44028,"journal":{"name":"Journal of Private International Law","volume":null,"pages":null},"PeriodicalIF":0.3000,"publicationDate":"2023-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"Cross-border internet defamation conflicts and what to do about them: Two proposals\",\"authors\":\"Dan Jerker B. Svantesson, Symeon C. Symeonides\",\"doi\":\"10.1080/17441048.2023.2236419\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"AbstractConflicts of laws in cross-border defamation cases are politically and culturally sensitive and their resolution has always been difficult. But the ubiquity of the internet has increased their frequency, complexity, and intensity. Faced with the realities of the online environment—including the virtual disappearance of national borders—several countries have acted unilaterally to preserve their values and protect their interests. Some countries enacted laws favouring consumers or other potential plaintiffs, while other countries took steps to protect potential defendants, including publishers and internet service providers. As a result, these conflicts are now more contentious than ever before. We believe there is a better way—even-handed multilateral action rather than self-serving unilateral action. In this article, we advance two proposals for multilateral action. The first is a set of soft law principles in the form of a resolution adopted by the Institut de Droit International in 2019. The second is a proposed Model Defamation Convention. After presenting and comparing these two instruments, we apply them to two scenarios derived from two leading cases (the first and one of the latest of the internet era) decided by courts of last resort. The first scenario is based on Dow Jones & Company Inc v Gutnick, which was decided by the High Court of Australia in 2002. The second is based on Gtflix Tv v. DR, which was decided by the Court of Justice of the European Union at the end of 2021. We believe that these two instruments would produce more rational solutions to these and other cross-border defamation conflicts. But if we fail to persuade readers on the specifics, we hope to demonstrate that other multilateral solutions are feasible and desirable, and that they are vastly superior to a continuing unilateral “arms race.” In any event, we hope that this article will spur the development of other proposals for multilateral action.Keywords: Internetdefamationcross-border casesjurisdictionapplicable lawrecognition and enforcement of foreign judgmentsinternational law reform proposals Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 The term “libel tourism” describes situations in which a non-resident plaintiff sues a non-resident defendant in a tenuously connected country solely because of its pro-plaintiff defamation law. Until the enactment of the Defamation Act 2013, England was a magnet forum for defamation plaintiffs—mostly the rich and famous—because of its pro-plaintiff substantive law, its lenient jurisdiction law, and its forum-centric choice-of-law rules. See Trevor C. Hartley, “‘Libel Tourism’ and Conflict of Laws” (2010) 59 International and Comparative Law Quarterly 25.2 As an American court noted in the famous Yahoo! case, The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China’s laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom’s restrictions on freedom of the press. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F.Supp.2d 1181, 1186–87 (N.D. Cal.2001).3 [2002] HCA 56, 210 CLR 575, 194 ALR 433, 77 ALJR 255.4 See, e.g., New York Times, Dec. 11, 2002, at A34 (“A Blow to Online Freedom”).5 Wall Street Journal, Dec. 18, 2002, at A19 (Letters to the Editor: “Free Speech Will Survive Kangaroo Court”).6 Gutnick, [2002] HCA 56, at ¶ 200, Callinan J, concurring.7 See Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 U.S.C. § 4102 (2010). This Act prohibits recognition of foreign defamation judgments unless: (1) the foreign court’s jurisdiction comported with the requirements of the US Constitution’s Due Process clause, and (2) the defamation law applied by the foreign court provides “at least as much protection for freedom of speech and press” as provided by the First Amendment of the US Constitution.8 See 47 U.S.C. § 230(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).9 See Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/ EC (General Data Protection Regulation).10 Fourteen out of the eighteen countries that have enacted specific choice-of-law rules for cross-border infringement of personality rights conflicts (including defamation) allow plaintiffs to choose the applicable law from among the laws of several states, such as the state of injury, the plaintiff’s home state, the defendant’s home state, etc. See infra n 44 and accompanying text.11 The IDI was founded in 1873 in Ghent, Belgium, with the goal of “promot[ing] the progress of international law”—both public and private—by, inter alia, “striving to formulate the general principles of the subject, in such a way as to correspond to the legal conscience of the civilized world.” IDI statute, Art 1.12 The Resolution is extensively discussed in Symeon C Symeonides, Cross-Border Infringement of Personality Rights via the Internet (Brill, 2021) 148 et seq. Professor Erik Jayme of Heidelberg served as co-rapporteur. The rapporteurs were assisted by the IDI’s Eighth Commission consisting of Professors Bernard Audit, Jürgen Basedow, Michael Bogdan, Léna Gannagé, Hélène Gaudemet-Tallon, Paul Lagarde, Alain Pellet, Emmanuel Roucounas, and Walter Rudolf. Symeonides had sole responsibility for the accompanying article-by-article commentary.13 See Dan Jerker B Svantesson, Private International Law and the Internet (Wolter Kluwer, 4th edn, 2021) 650–79 (with extensive article-by-article commentary).14 Resolution, Art 1.2.15 Resolution, Art 7.1-2. However, if the plaintiff sues in the defendant’s current “home state” which was not the defendant’s home state at the time of the injury, the applicable law is the internal law of the state that, considering all the circumstances, has the closest and most significant connection. Ibid Art 7.2.16 Resolution, Art 5.1(c) and (d).17 See Resolution, Art 1.11(a)-(b).18 Resolution, Art 5.1(a).19 Resolution, Art 1.8 (emphasis added).20 See Resolution, Art 4(a).21 Resolution, Art 4(a).22 See Case C-68/93 Shevill [1995] ECR 1-415.23 See Resolution, Art 5.3.24 Resolution, Art 5.1(c).25 Resolution, Art 4(c).26 2018 SCC 28.27 Case C-194/16 Bolagsupplysningen OÜ EU:C:2017:766.28 See Cases C-509/09 and C-161/10 eDate Advertising GmbH v. X and Martinez v. MGN Limited, EU:C:2011:685, [2011] ECR I-10269.29 Supra n 22.30 See Case C-251/20 Gtflix TV v. DR, EU:C:2021:1036. Gtflix is discussed infra at F.1.31 The same difference exists with the jurisdictional bases of the Victoria court in Gutnick, and similar bases available in England and Wales before the Defamation Act 2013, as well as other countries that follow the mosaic principle.32 Subparagraphs (a) and (b) of Art 1.11 define “home state” for both defendants and plaintiffs as the state of domicile or habitual residence for natural persons and the state of the statutory seat, principal place of business, incorporation or formation, for legal persons. In addition, subparagraph (c) provides that, if a person suffers injury to its professional or business interest, then the state in which that person has its principal professional or business establishment is considered that person’s home state.33 eDate Advertising (supra n 28), at ¶ 49. The Court also noted that, depending on the circumstances, the plaintiff’s centre of interest may be in the state where the victim “pursu[es] . . . a professional activity.” Ibid. The Resolution covers this possibility through Art 1.11(c), which refers to the plaintiff’s professional or business home. See supra, previous note.34 Even if the plaintiff’s home state does not qualify as the plaintiff’s centre of interests, there is still good reason to allow jurisdiction there, as long as the plaintiff suffered injury there. However, because the Resolution is also concerned with fairness for the defendant, it provides defendants with the jurisdictional escape discussed below.35 Resolution, Art 5.2.36 See Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984).37 See Calder v. Jones, 465 U.S. 783 (1984).38 It also deviates from these regimes by not authorising jurisdiction in cases such as Gtflix TV v. DR, (supra n 30), in which the forum’s only connection is the occurrence of some injury. See Scenario 2, infra.39 Art 6.2 of the Resolution provides that a pre-dispute choice-of-court agreement is enforceable if: “(a) it was freely negotiated, expressed in writing and covers non-contractual obligations; (b) all parties engaged in commercial or professional activity and the agreement was part of that activity; and (c) it is otherwise valid under the law applicable under the private international law rules of the forum State.”40 Resolution, Art 5.1.41 The two exceptions apply to cases in which the trial takes place (1) in a state that is the defendant’s home state at the time of the trial but not at the time of the injury, or (2) in a state designated in a valid choice-of-court agreement which is not one of the states that would have jurisdiction under Art 5. In both of those cases, the applicable law is that of the state that has the “closest and most significant connection” to the parties and the dispute. See Art 7.3, second sentence; Art 7.5, second sentence. However, as explained below, these cases are rather infrequent.42 See supra B.4(a)(i).43 See Symeon C Symeonides, Private International Law: Idealism, Pragmatism, Eclecticism (Brill, 2021) 203–08. For detailed discussion of most of these rules, see Symeon C Symeonides, Codifying Choice of Law Around the World (OUP, 2014) 59–65.44 See Symeon C Symeonides, “Infringement of Personality Rights via the Internet: Jurisdiction and Choice of Law” (2022) Lex and Forum 311, 323. The 14 countries are Albania, Bulgaria, Lithuania, Moldova, Montenegro, Romania, Serbia (draft), Switzerland, Turkey, Czech Republic, Monaco, Hungary, Belgium, and Poland. These rules give plaintiffs between two and five choice-of-law options. The four countries that do not authorise pro-plaintiff choices are Australia (six states), China, Japan, Norway (draft), and Taiwan. See ibid.45 That law “shall govern all substantive issues” between the parties, that is, no dépeçage, see Art 7.4.46 Art 8.2 of the Resolution provides that a pre-dispute choice-of-law agreement is enforceable if: “(a) it was freely negotiated, expressed in writing and clearly covers non-contractual obligations; (b) all parties engaged in commercial or professional activity and the agreement was part of that activity; and (c) the application of the chosen law is not manifestly incompatible with the public policy (ordre public) of the forum State or the State whose law would be applicable under Article 7.”47 Resolution, Art 8.1.48 See Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 U.S.C. § 4102 (2010).49 Art 32 which relates to situations where the application of the Model Convention may be displaced in favour of other prior international agreements with which the Model Convention overlaps.50 For more on this useful, but these days typically overlooked possible test, see Dan Jerker B Svantesson, “Jurisdictional Issues in Cyberspace: What Should Article 7 – Consumer Contracts, of the Proposed Hague Model Convention, Aim to Accomplish in Relation to E-commerce?” (2001) 17 Computer Law and Security Report 318–25.51 States that have signed the ICCPR are expected to act in this manner. However, Art 17 serves as a reminder.52 Provided that the requirement associated with lodging communications are met.53 This case has been strongly influential both in Australian courts and abroad. Furthermore, it has been subjected to extensive and ongoing academic scrutiny. For a recent example see, for example, K Pappalardo and N Suzor, “Dow Jones & Company v Gutnick (2002)” in D Rolph (ed) Landmark Cases in Internet Defamation Law (Hart Publishing, 2019) 217–41.54 Dow Jones & Company Inc. v. Gutnick (2002) 210 CLR 575.55 [2012] SCC 19.56 [2018] SCC 28.57 See Resolution, Art 1.11(a).58 Resolution, Art 5.1(c). See also Art 4(c).59 See Resolution, Art 1.11(b).60 See Resolution, Art 1.8.61 See Resolution, Art 5.1(c) and Art 4(c).62 31 F.4th 135, at 141 (2nd Cir. 2022).63 See infra E.2(e).64 By contrast, if Mr. G were to sue in State Y, Bmag would not have any jurisdictional escape. See Resolution, Art 5.1 (a) or (b).65 By contrast, if Mr. G were to sue in State Y, the internal law of that state will govern under Art 7.1 or 2, without any escape.66 Under Art 7.3, the request must encompass all substantive issues. In other words, Mr. G may not pick and choose only certain parts of State Y law.67 See supra B.4(a)(i).68 See supra E.2(a).69 These states are the defendant’s home state and the state of the defendant’s critical conduct. See Resolution, Arts 5.1(a)–(b), and 7.1–2.70 See Resolution Arts 5.1(c)–(d), and 7.3–4.71 The rapporteur’s official comments accompanying the Resolution address this precise scenario by using the Bolagsupplysningen case (supra n 27) as an example of a case in which the plaintiff had its domicile in Estonia but conducted most of its activities in Sweden. The comments state that in that case “Sweden would qualify as the state of the ‘most extensive injurious effects’ because, in the words of the CJEU ‘any injury to [the plaintiff’s] reputation would be felt most keenly there.’” Resolution, Art 5, cmt. (d).72 Model Convention, Art 3.73 It is assumed that Art 32 of the Model Convention is not applicable in the circumstances in the absence of information regarding the countries’ participation in other relevant international instruments.74 However, if Mr. G were to seek an injunction, Art 9 (read in the light of Arts 10 and 11) would presumably require him to do so in State Y rather than State X. This restrictive approach is justified from the fact that injunctions are considerably more intrusive on freedom of expression than subsequent damages. See Svantesson, (supra n 13) at 667–68.75 Art 14 provides that “A court having jurisdiction based on Article 5 shall apply the laws, other than the rules of private international law, of the State where the court is located (lex fori).”76 See further: D Svantesson, “Jurisdiction in 3D – ‘Scope of (Remedial) Jurisdiction’ as a Third Dimension of Jurisdiction” (2016) 12 Journal of Private International Law 60–76; D Svantesson, “‘Scope of Jurisdiction’ – A Key Battleground for Private International Law Applied to the Internet” (2020/21) 22 Yearbook of Private International Law 245–74.77 See Resolution, Art 3.2.78 As noted earlier, this assumption may be disputed in a case such as Scenario 1, in which only 5 per cent of the viewers were based in State X, compared to 95 per cent of the viewers who were based in State Y. See supra.79 See Resolution, Art 5.2.80 Ole Lando, “Lex Fori in Foro Proprio” (1995) 2 Maastricht Journal of European and Comparative Law 359. The origins of this line of thinking can be traced back to different writings of A Ehrenzweig. See also Lando, ibid. See further Svantesson (supra n 13) 592–93.81 See supra B.4(a)(i) and E.2(e).82 Supra n 30.83 Shevill, supra n 22.84 See eDate Advertising (supra n 28); Bolagsupplysningen OÜ (supra n 27), and Case C-800/19 Mittelbayerischer Verlag KG EU:C:2021:489. These cases are discussed in D Svantesson & I Revolidis, “From eDate to Gtflix: Reflections on CJEU case law on digital torts under Art. 7(2) of the Brussels Ia Regulation, and how to move forward” in Paris Arvanitakis (ed) National and International Legal Space: The Contribution of Prof Konstantinos Kerameus in International Civil Procedure (Sakkoulas Publications, 2022) 319–71.85 Case 21/76, EU:C:1976:166, [1976] ECR 1735.86 Ibid at ¶¶ 32, 35, 39.87 See eDate Advertising (supra n 28); and Bolagsupplysningen (supra n 27).88 See Resolution, Art 5.1 (a)-(b).89 See Resolution, Art 5.1(c)-(d).90 Model Convention, Art 3.91 Art 4 again makes clear that the matter of jurisdiction is to be determined by reference to the rules of the Model Convention only, and since there is no indication of any choice of court agreement, we can again ignore Art 6. Further, Arts 7–12 are inapplicable to the claim of damages. Most importantly, there is no indication that the defendant “has taken reasonable steps to avoid contact with that State” (Art 12). It is also assumed that Art 32 of the Model Convention is not applicable in the circumstances in the absence of information regarding the countries’ participation in other relevant international instruments.92 Svantesson (supra n 13) at 671.93 Model Convention, Art 9. Art 9 provides that a plaintiff may also bring an action in defamation “in accordance with the preceding Articles” to prevent injury from occurring, and that this action must be brought in the state in which the defendant is expected to perform the injuring act. This wording may create an internal conflict because “the preceding articles” provide that the defamation action must be filed in the state of injury. To avoid the conflict, the quoted phrase should be read as referring to the other elements of the defamation action, but not to the state where that action must be filed.94 Model Convention, Art 11.95 Indeed, the Model Convention to be presented in the next edition will reconsider the entire approach to rectification and removal.96 According to its website the Network is a non-profit and neutral “multistakeholder” organisation “addressing the tension between the cross-border Internet and national jurisdictions … [by] facilitat[ing] a global policy process engaging over 400 key entities from governments, the world’s largest internet companies, technical operators, civil society groups, academia and international organizations from over 70 countries.” https://www.internetjurisdiction.net/about/mission97 See Dan Jerker B Svantesson, Internet & Jurisdiction Global Status Report (Internet & Jurisdiction Policy Network, 2019).98 Ibid at 14.99 Ibid. See also ibid at 2 (“Clarifying how existing national laws apply in cyberspace and developing new balanced frameworks to address abuses, will enable the digital economy to protect human rights and will determine the shape of the emerging digital economy. To preserve the open, cross-border nature of the internet, policy coherence and legal interoperability between multiple regimes must be established. This requires communication, coordination and, ultimately, cooperation among all stakeholders.”).100 This phrase is attributed to President Harry S Truman.\",\"PeriodicalId\":44028,\"journal\":{\"name\":\"Journal of Private International Law\",\"volume\":null,\"pages\":null},\"PeriodicalIF\":0.3000,\"publicationDate\":\"2023-05-04\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Journal of Private International Law\",\"FirstCategoryId\":\"1085\",\"ListUrlMain\":\"https://doi.org/10.1080/17441048.2023.2236419\",\"RegionNum\":0,\"RegionCategory\":null,\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q3\",\"JCRName\":\"LAW\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Journal of Private International Law","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1080/17441048.2023.2236419","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q3","JCRName":"LAW","Score":null,"Total":0}
引用次数: 0
摘要
摘要跨国诽谤案件中的法律冲突具有政治和文化敏感性,其解决一直是一个难题。但互联网的无处不在增加了它们的频率、复杂性和强度。面对网络环境的现实——包括国界的消失——一些国家已经采取单边行动来维护他们的价值观和保护他们的利益。一些国家颁布了有利于消费者或其他潜在原告的法律,而其他国家则采取措施保护包括出版商和互联网服务提供商在内的潜在被告。因此,这些冲突现在比以往任何时候都更具争议性。我们认为有更好的办法——公平的多边行动,而不是自私自利的单边行动。在本文中,我们提出了两项多边行动建议。第一个是国际法学会2019年通过的一项决议形式的一套软法律原则。第二是拟议的《诽谤示范公约》。在介绍和比较了这两种工具之后,我们将它们应用于由法院最终裁决的两个主要案例(互联网时代的第一个和最新的一个)衍生的两种场景。第一种情况是基于2002年澳大利亚高等法院对道琼斯公司诉古特尼克案的判决。第二个是基于2021年底欧盟法院判决的netflix Tv v. DR案。我们相信,这两项文书将为这些和其他跨境诽谤冲突提供更合理的解决方案。但是,如果我们不能在细节上说服读者,我们希望证明其他多边解决方案是可行和可取的,而且它们远远优于持续的单边“军备竞赛”。无论如何,我们希望这一条款将促进拟订其他多边行动建议。关键词:互联网诽谤跨境案件管辖权适用法律承认和执行外国判决国际法改革建议披露声明作者未报告潜在的利益冲突。注1“诽谤旅游”一词描述了一种情况,即非居民原告起诉非居民被告在一个关系薄弱的国家,仅仅是因为其有利于原告的诽谤法。在2013年《诽谤法》颁布之前,英国一直是诽谤原告——主要是富人和名人——的一个极具吸引力的论坛,因为它有有利于原告的实体法,宽松的管辖权法,以及以论坛为中心的法律选择规则。参见Trevor C. Hartley,“‘诽谤旅游’与法律冲突”(2010)59《国际与比较法季刊》25.2。现代世界是多元文化的家园,价值体系大相径庭。毫无疑问,美国的互联网用户经常发表违反法律的言论,例如,中国禁止宗教表达的法律,各国禁止倡导性别平等或同性恋的法律,甚至英国对新闻自由的限制。雅虎, Inc.诉La Ligue Contre Le Racisme and L 'Antisemitisme, 169 F.Supp。[d] [d] .2001。[2002]《中华人民共和国著作权法》第5卷第1期,《中华人民共和国著作权法》第4卷,《中华人民共和国著作权法》第4卷,《中华人民共和国著作权法》第4卷《华尔街日报》,2002年12月18日,at A19(致编辑的信:“言论自由将在袋鼠法庭中幸存”)[2002]李建军,陈建军,陈建军参见《保护我国持久和确立的宪法遗产(SPEECH)法》,28 U.S.C.§4102(2010)。本法禁止承认外国诽谤判决,除非:(1)外国法院的管辖权符合美国宪法正当程序条款的要求;(2)外国法院适用的诽谤法对“言论和出版自由的保护至少与美国宪法第一修正案所规定的一样多”。8见47 U.S.C.§230(c)(1)(“交互式计算机服务的提供者或用户不得被视为由另一信息内容提供者提供的任何信息的发布者或演讲者。”)参见2016年4月27日欧洲议会和理事会条例(EU) 2016/679,关于在个人数据处理和此类数据自由流动方面保护自然人,并废除指令95/46/ EC(一般数据保护条例)在18个国家中,有14个国家制定了针对跨境侵犯人格权冲突(包括诽谤)的具体法律选择规则,允许原告从几个州的法律中选择适用法律,如伤害州、原告原籍州、被告原籍州等。 见下文第44段及其所附案文IDI于1873年在比利时根特成立,其目标是“促进国际法的进步”——无论是公共的还是私人的——特别是“努力制定国际法的一般原则,以符合文明世界的法律良知”。该决议在Symeon C Symeonides,《通过互联网的跨境侵犯人格权》(Brill, 2021) 148及后续文献中得到了广泛讨论。海德堡大学的Erik Jayme教授担任联合报告员。报告员得到了由Bernard Audit教授、jrgen Basedow教授、Michael Bogdan教授、lassna gannag<e:1>教授、hassine Gaudemet-Tallon教授、Paul Lagarde教授、Alain Pellet教授、Emmanuel Roucounas教授和Walter Rudolf教授组成的IDI第八委员会的协助。西蒙尼德独自负责随附的逐条评论14 .参见丹·杰克·B·斯万特森:《国际私法与互联网》(Wolter Kluwer出版社,2021年第4版),650-79(附逐条评论)分辨率,Art 1.2.15分辨率,Art 7.1-2。然而,如果原告在被告目前的“家乡州”提起诉讼,而被告在遭受伤害时不是在家乡州,则适用的法律是考虑到所有情况,具有最密切和最重要联系的州的国内法。同上第7.2.16条分辨率,第5.1(c)和(d)条见决议第1.11(a)-(b)条。18决议,第5.1(a)条决议,第1.8条(重点增加)见决议第4(a)条。21决议,第4(a)条参见案例c -68/93 Shevill [1995] ECR 1-415.23参见决议,第5.3.24条决议,第5.1(c)条25决议,第4(c)条。26 2018 SCC 28.27 Case C-194/16 Bolagsupplysningen OÜ EU:C:2017:766.28参见Case C-509/09和C-161/10 eDate Advertising GmbH v. X和Martinez v. MGN Limited, EU:C:2011:685, [2011] ECR I-10269.29 Supra . 22.30参见Case C-251/20 netflix TV v. DR, EU:C:2021:1036。同样的差异存在于Gutnick的维多利亚法院的管辖基础,以及2013年诽谤法之前的英格兰和威尔士以及遵循马赛克原则的其他国家第1.11条第(a)和(b)项将被告和原告的“母国”定义为自然人的住所或经常居住地,以及法人的法定所在地、主要营业地、注册或成立地。此外,(c)项规定,如果某人的专业或商业利益受到损害,则该人的主要专业或商业机构所在州被视为该人的家乡州。33 .广告(参见n . 28), at¶49。法院还指出,根据具体情况,原告的利益中心可能在受害者“追求……”的州。这是一项专业活动。”同上,该决议通过第1.11(c)条涵盖了这种可能性,该条指的是原告的专业或业务所在地。见上文,前一注即使原告的家乡州不符合原告利益中心的资格,只要原告在那里遭受了损害,仍然有很好的理由允许那里的管辖权。然而,由于该决议也涉及对被告的公平,它为被告提供了下文讨论的管辖权逃避决议,第5.2.36条见Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984).37参见Calder v. Jones, 465 U.S. 783 (1984).38它还背离了这些制度,不授权对netflix TV诉DR(见第30条)等案件行使管辖权,在这些案件中,法院的唯一联系是发生了某种损害。参见场景2,红外线该决议第6.2条规定,争议前选择法院协议是可执行的,如果:“(a)该协议是自由谈判的,以书面形式表示,并涵盖非合同义务;(b)所有当事方从事商业或专业活动,而该协议是该活动的一部分;(c)根据法院地国国际私法规则所适用的法律,该诉讼在其他方面是有效的。“40决议,第5.1.41条这两个例外适用于以下情况:审判发生在(1)审判时是被告的家乡州,但伤害发生时不是,或(2)在有效的选择法院协议中指定的州,但不是根据第5条具有管辖权的州之一。在这两种情况下,适用的法律都是与当事人和争端有“最密切和最重要联系”的国家的法律。见第7.3条第二句;第7.5条第二句。然而,如下文所述,这些情况相当罕见见B.4(a)(i).43参见Symeon C . Symeonides:《国际私法:理想主义、实用主义与折衷主义》(Brill, 2021) 203-08。
Cross-border internet defamation conflicts and what to do about them: Two proposals
AbstractConflicts of laws in cross-border defamation cases are politically and culturally sensitive and their resolution has always been difficult. But the ubiquity of the internet has increased their frequency, complexity, and intensity. Faced with the realities of the online environment—including the virtual disappearance of national borders—several countries have acted unilaterally to preserve their values and protect their interests. Some countries enacted laws favouring consumers or other potential plaintiffs, while other countries took steps to protect potential defendants, including publishers and internet service providers. As a result, these conflicts are now more contentious than ever before. We believe there is a better way—even-handed multilateral action rather than self-serving unilateral action. In this article, we advance two proposals for multilateral action. The first is a set of soft law principles in the form of a resolution adopted by the Institut de Droit International in 2019. The second is a proposed Model Defamation Convention. After presenting and comparing these two instruments, we apply them to two scenarios derived from two leading cases (the first and one of the latest of the internet era) decided by courts of last resort. The first scenario is based on Dow Jones & Company Inc v Gutnick, which was decided by the High Court of Australia in 2002. The second is based on Gtflix Tv v. DR, which was decided by the Court of Justice of the European Union at the end of 2021. We believe that these two instruments would produce more rational solutions to these and other cross-border defamation conflicts. But if we fail to persuade readers on the specifics, we hope to demonstrate that other multilateral solutions are feasible and desirable, and that they are vastly superior to a continuing unilateral “arms race.” In any event, we hope that this article will spur the development of other proposals for multilateral action.Keywords: Internetdefamationcross-border casesjurisdictionapplicable lawrecognition and enforcement of foreign judgmentsinternational law reform proposals Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 The term “libel tourism” describes situations in which a non-resident plaintiff sues a non-resident defendant in a tenuously connected country solely because of its pro-plaintiff defamation law. Until the enactment of the Defamation Act 2013, England was a magnet forum for defamation plaintiffs—mostly the rich and famous—because of its pro-plaintiff substantive law, its lenient jurisdiction law, and its forum-centric choice-of-law rules. See Trevor C. Hartley, “‘Libel Tourism’ and Conflict of Laws” (2010) 59 International and Comparative Law Quarterly 25.2 As an American court noted in the famous Yahoo! case, The modern world is home to widely varied cultures with radically divergent value systems. There is little doubt that Internet users in the United States routinely engage in speech that violates, for example, China’s laws against religious expression, the laws of various nations against advocacy of gender equality or homosexuality, or even the United Kingdom’s restrictions on freedom of the press. Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 169 F.Supp.2d 1181, 1186–87 (N.D. Cal.2001).3 [2002] HCA 56, 210 CLR 575, 194 ALR 433, 77 ALJR 255.4 See, e.g., New York Times, Dec. 11, 2002, at A34 (“A Blow to Online Freedom”).5 Wall Street Journal, Dec. 18, 2002, at A19 (Letters to the Editor: “Free Speech Will Survive Kangaroo Court”).6 Gutnick, [2002] HCA 56, at ¶ 200, Callinan J, concurring.7 See Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 U.S.C. § 4102 (2010). This Act prohibits recognition of foreign defamation judgments unless: (1) the foreign court’s jurisdiction comported with the requirements of the US Constitution’s Due Process clause, and (2) the defamation law applied by the foreign court provides “at least as much protection for freedom of speech and press” as provided by the First Amendment of the US Constitution.8 See 47 U.S.C. § 230(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”).9 See Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/ EC (General Data Protection Regulation).10 Fourteen out of the eighteen countries that have enacted specific choice-of-law rules for cross-border infringement of personality rights conflicts (including defamation) allow plaintiffs to choose the applicable law from among the laws of several states, such as the state of injury, the plaintiff’s home state, the defendant’s home state, etc. See infra n 44 and accompanying text.11 The IDI was founded in 1873 in Ghent, Belgium, with the goal of “promot[ing] the progress of international law”—both public and private—by, inter alia, “striving to formulate the general principles of the subject, in such a way as to correspond to the legal conscience of the civilized world.” IDI statute, Art 1.12 The Resolution is extensively discussed in Symeon C Symeonides, Cross-Border Infringement of Personality Rights via the Internet (Brill, 2021) 148 et seq. Professor Erik Jayme of Heidelberg served as co-rapporteur. The rapporteurs were assisted by the IDI’s Eighth Commission consisting of Professors Bernard Audit, Jürgen Basedow, Michael Bogdan, Léna Gannagé, Hélène Gaudemet-Tallon, Paul Lagarde, Alain Pellet, Emmanuel Roucounas, and Walter Rudolf. Symeonides had sole responsibility for the accompanying article-by-article commentary.13 See Dan Jerker B Svantesson, Private International Law and the Internet (Wolter Kluwer, 4th edn, 2021) 650–79 (with extensive article-by-article commentary).14 Resolution, Art 1.2.15 Resolution, Art 7.1-2. However, if the plaintiff sues in the defendant’s current “home state” which was not the defendant’s home state at the time of the injury, the applicable law is the internal law of the state that, considering all the circumstances, has the closest and most significant connection. Ibid Art 7.2.16 Resolution, Art 5.1(c) and (d).17 See Resolution, Art 1.11(a)-(b).18 Resolution, Art 5.1(a).19 Resolution, Art 1.8 (emphasis added).20 See Resolution, Art 4(a).21 Resolution, Art 4(a).22 See Case C-68/93 Shevill [1995] ECR 1-415.23 See Resolution, Art 5.3.24 Resolution, Art 5.1(c).25 Resolution, Art 4(c).26 2018 SCC 28.27 Case C-194/16 Bolagsupplysningen OÜ EU:C:2017:766.28 See Cases C-509/09 and C-161/10 eDate Advertising GmbH v. X and Martinez v. MGN Limited, EU:C:2011:685, [2011] ECR I-10269.29 Supra n 22.30 See Case C-251/20 Gtflix TV v. DR, EU:C:2021:1036. Gtflix is discussed infra at F.1.31 The same difference exists with the jurisdictional bases of the Victoria court in Gutnick, and similar bases available in England and Wales before the Defamation Act 2013, as well as other countries that follow the mosaic principle.32 Subparagraphs (a) and (b) of Art 1.11 define “home state” for both defendants and plaintiffs as the state of domicile or habitual residence for natural persons and the state of the statutory seat, principal place of business, incorporation or formation, for legal persons. In addition, subparagraph (c) provides that, if a person suffers injury to its professional or business interest, then the state in which that person has its principal professional or business establishment is considered that person’s home state.33 eDate Advertising (supra n 28), at ¶ 49. The Court also noted that, depending on the circumstances, the plaintiff’s centre of interest may be in the state where the victim “pursu[es] . . . a professional activity.” Ibid. The Resolution covers this possibility through Art 1.11(c), which refers to the plaintiff’s professional or business home. See supra, previous note.34 Even if the plaintiff’s home state does not qualify as the plaintiff’s centre of interests, there is still good reason to allow jurisdiction there, as long as the plaintiff suffered injury there. However, because the Resolution is also concerned with fairness for the defendant, it provides defendants with the jurisdictional escape discussed below.35 Resolution, Art 5.2.36 See Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984).37 See Calder v. Jones, 465 U.S. 783 (1984).38 It also deviates from these regimes by not authorising jurisdiction in cases such as Gtflix TV v. DR, (supra n 30), in which the forum’s only connection is the occurrence of some injury. See Scenario 2, infra.39 Art 6.2 of the Resolution provides that a pre-dispute choice-of-court agreement is enforceable if: “(a) it was freely negotiated, expressed in writing and covers non-contractual obligations; (b) all parties engaged in commercial or professional activity and the agreement was part of that activity; and (c) it is otherwise valid under the law applicable under the private international law rules of the forum State.”40 Resolution, Art 5.1.41 The two exceptions apply to cases in which the trial takes place (1) in a state that is the defendant’s home state at the time of the trial but not at the time of the injury, or (2) in a state designated in a valid choice-of-court agreement which is not one of the states that would have jurisdiction under Art 5. In both of those cases, the applicable law is that of the state that has the “closest and most significant connection” to the parties and the dispute. See Art 7.3, second sentence; Art 7.5, second sentence. However, as explained below, these cases are rather infrequent.42 See supra B.4(a)(i).43 See Symeon C Symeonides, Private International Law: Idealism, Pragmatism, Eclecticism (Brill, 2021) 203–08. For detailed discussion of most of these rules, see Symeon C Symeonides, Codifying Choice of Law Around the World (OUP, 2014) 59–65.44 See Symeon C Symeonides, “Infringement of Personality Rights via the Internet: Jurisdiction and Choice of Law” (2022) Lex and Forum 311, 323. The 14 countries are Albania, Bulgaria, Lithuania, Moldova, Montenegro, Romania, Serbia (draft), Switzerland, Turkey, Czech Republic, Monaco, Hungary, Belgium, and Poland. These rules give plaintiffs between two and five choice-of-law options. The four countries that do not authorise pro-plaintiff choices are Australia (six states), China, Japan, Norway (draft), and Taiwan. See ibid.45 That law “shall govern all substantive issues” between the parties, that is, no dépeçage, see Art 7.4.46 Art 8.2 of the Resolution provides that a pre-dispute choice-of-law agreement is enforceable if: “(a) it was freely negotiated, expressed in writing and clearly covers non-contractual obligations; (b) all parties engaged in commercial or professional activity and the agreement was part of that activity; and (c) the application of the chosen law is not manifestly incompatible with the public policy (ordre public) of the forum State or the State whose law would be applicable under Article 7.”47 Resolution, Art 8.1.48 See Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act, 28 U.S.C. § 4102 (2010).49 Art 32 which relates to situations where the application of the Model Convention may be displaced in favour of other prior international agreements with which the Model Convention overlaps.50 For more on this useful, but these days typically overlooked possible test, see Dan Jerker B Svantesson, “Jurisdictional Issues in Cyberspace: What Should Article 7 – Consumer Contracts, of the Proposed Hague Model Convention, Aim to Accomplish in Relation to E-commerce?” (2001) 17 Computer Law and Security Report 318–25.51 States that have signed the ICCPR are expected to act in this manner. However, Art 17 serves as a reminder.52 Provided that the requirement associated with lodging communications are met.53 This case has been strongly influential both in Australian courts and abroad. Furthermore, it has been subjected to extensive and ongoing academic scrutiny. For a recent example see, for example, K Pappalardo and N Suzor, “Dow Jones & Company v Gutnick (2002)” in D Rolph (ed) Landmark Cases in Internet Defamation Law (Hart Publishing, 2019) 217–41.54 Dow Jones & Company Inc. v. Gutnick (2002) 210 CLR 575.55 [2012] SCC 19.56 [2018] SCC 28.57 See Resolution, Art 1.11(a).58 Resolution, Art 5.1(c). See also Art 4(c).59 See Resolution, Art 1.11(b).60 See Resolution, Art 1.8.61 See Resolution, Art 5.1(c) and Art 4(c).62 31 F.4th 135, at 141 (2nd Cir. 2022).63 See infra E.2(e).64 By contrast, if Mr. G were to sue in State Y, Bmag would not have any jurisdictional escape. See Resolution, Art 5.1 (a) or (b).65 By contrast, if Mr. G were to sue in State Y, the internal law of that state will govern under Art 7.1 or 2, without any escape.66 Under Art 7.3, the request must encompass all substantive issues. In other words, Mr. G may not pick and choose only certain parts of State Y law.67 See supra B.4(a)(i).68 See supra E.2(a).69 These states are the defendant’s home state and the state of the defendant’s critical conduct. See Resolution, Arts 5.1(a)–(b), and 7.1–2.70 See Resolution Arts 5.1(c)–(d), and 7.3–4.71 The rapporteur’s official comments accompanying the Resolution address this precise scenario by using the Bolagsupplysningen case (supra n 27) as an example of a case in which the plaintiff had its domicile in Estonia but conducted most of its activities in Sweden. The comments state that in that case “Sweden would qualify as the state of the ‘most extensive injurious effects’ because, in the words of the CJEU ‘any injury to [the plaintiff’s] reputation would be felt most keenly there.’” Resolution, Art 5, cmt. (d).72 Model Convention, Art 3.73 It is assumed that Art 32 of the Model Convention is not applicable in the circumstances in the absence of information regarding the countries’ participation in other relevant international instruments.74 However, if Mr. G were to seek an injunction, Art 9 (read in the light of Arts 10 and 11) would presumably require him to do so in State Y rather than State X. This restrictive approach is justified from the fact that injunctions are considerably more intrusive on freedom of expression than subsequent damages. See Svantesson, (supra n 13) at 667–68.75 Art 14 provides that “A court having jurisdiction based on Article 5 shall apply the laws, other than the rules of private international law, of the State where the court is located (lex fori).”76 See further: D Svantesson, “Jurisdiction in 3D – ‘Scope of (Remedial) Jurisdiction’ as a Third Dimension of Jurisdiction” (2016) 12 Journal of Private International Law 60–76; D Svantesson, “‘Scope of Jurisdiction’ – A Key Battleground for Private International Law Applied to the Internet” (2020/21) 22 Yearbook of Private International Law 245–74.77 See Resolution, Art 3.2.78 As noted earlier, this assumption may be disputed in a case such as Scenario 1, in which only 5 per cent of the viewers were based in State X, compared to 95 per cent of the viewers who were based in State Y. See supra.79 See Resolution, Art 5.2.80 Ole Lando, “Lex Fori in Foro Proprio” (1995) 2 Maastricht Journal of European and Comparative Law 359. The origins of this line of thinking can be traced back to different writings of A Ehrenzweig. See also Lando, ibid. See further Svantesson (supra n 13) 592–93.81 See supra B.4(a)(i) and E.2(e).82 Supra n 30.83 Shevill, supra n 22.84 See eDate Advertising (supra n 28); Bolagsupplysningen OÜ (supra n 27), and Case C-800/19 Mittelbayerischer Verlag KG EU:C:2021:489. These cases are discussed in D Svantesson & I Revolidis, “From eDate to Gtflix: Reflections on CJEU case law on digital torts under Art. 7(2) of the Brussels Ia Regulation, and how to move forward” in Paris Arvanitakis (ed) National and International Legal Space: The Contribution of Prof Konstantinos Kerameus in International Civil Procedure (Sakkoulas Publications, 2022) 319–71.85 Case 21/76, EU:C:1976:166, [1976] ECR 1735.86 Ibid at ¶¶ 32, 35, 39.87 See eDate Advertising (supra n 28); and Bolagsupplysningen (supra n 27).88 See Resolution, Art 5.1 (a)-(b).89 See Resolution, Art 5.1(c)-(d).90 Model Convention, Art 3.91 Art 4 again makes clear that the matter of jurisdiction is to be determined by reference to the rules of the Model Convention only, and since there is no indication of any choice of court agreement, we can again ignore Art 6. Further, Arts 7–12 are inapplicable to the claim of damages. Most importantly, there is no indication that the defendant “has taken reasonable steps to avoid contact with that State” (Art 12). It is also assumed that Art 32 of the Model Convention is not applicable in the circumstances in the absence of information regarding the countries’ participation in other relevant international instruments.92 Svantesson (supra n 13) at 671.93 Model Convention, Art 9. Art 9 provides that a plaintiff may also bring an action in defamation “in accordance with the preceding Articles” to prevent injury from occurring, and that this action must be brought in the state in which the defendant is expected to perform the injuring act. This wording may create an internal conflict because “the preceding articles” provide that the defamation action must be filed in the state of injury. To avoid the conflict, the quoted phrase should be read as referring to the other elements of the defamation action, but not to the state where that action must be filed.94 Model Convention, Art 11.95 Indeed, the Model Convention to be presented in the next edition will reconsider the entire approach to rectification and removal.96 According to its website the Network is a non-profit and neutral “multistakeholder” organisation “addressing the tension between the cross-border Internet and national jurisdictions … [by] facilitat[ing] a global policy process engaging over 400 key entities from governments, the world’s largest internet companies, technical operators, civil society groups, academia and international organizations from over 70 countries.” https://www.internetjurisdiction.net/about/mission97 See Dan Jerker B Svantesson, Internet & Jurisdiction Global Status Report (Internet & Jurisdiction Policy Network, 2019).98 Ibid at 14.99 Ibid. See also ibid at 2 (“Clarifying how existing national laws apply in cyberspace and developing new balanced frameworks to address abuses, will enable the digital economy to protect human rights and will determine the shape of the emerging digital economy. To preserve the open, cross-border nature of the internet, policy coherence and legal interoperability between multiple regimes must be established. This requires communication, coordination and, ultimately, cooperation among all stakeholders.”).100 This phrase is attributed to President Harry S Truman.