Lecture 3 - Applicable law and competent court: Online defamation
Defamation = a defamatory statement is one which injures the reputation of another person: it tends
to lower him in the estimation of right-thinking members of society generally. Requirement is that
it’s published and in this regard, this means that it’s communicated to a third person.
Difference between libel and slander is that the first is in writing and the second is done orally.
If you wanted to have a claim on defamation, you had to prove that words are: published to third
parties and lower your reputation (in the eyes of right thinking people) and the defendant has to
prove statement to be true. How do you prove opinions to be true? This is hard since burden of proof
is on you. Freedom of speech and right to privacy are both at stake in this case. Privacy protects
reputation of a person as well. Art. 8 of ECHR is important here and the right to freedom of speech
(say something less positive) against interest of person’s right to privacy.
Low threshold defamation cases in UK caused forum shopping. From a UK perspective, problematic
because their courts get overburdened. It also causes situations in courts to become a question of
private international law since the question of the applicable law becomes relevant.
Internet characteristics
An influence of the internet is that it spreads way further, if I make a bad comment about who knows
where in the world where can I be held liable (internationalisation), or what Dutch people think is
non-offense might be to other cultures as we deem it to be irony or a joke. Tracking and tracing
where a defamation was made (dematerialisation), is this really possible? Long arm of the law trying
to have their law be applicable to another territory extend to other countries.
Private international law - applicable law
About contractual (Rome I) and non-contractual obligations (Rome II). General terms and conditions
are part of the contract between parties, can contain applicable law but you cannot contract out of
all obligations or rights that consumers have. General rule is the freedom of choice, it’s an important
part of the contract that can be decided on, German + Dutch parties can decide on applicable French
law. Art. 6(2) provides for the seller not opting for another type of law that provides less protection
for the weaker party than it would have under its own law.
Defamation is explicitly excluded from the scope of this Regulation, so defamation is left to the
national law of the MS after which it comes down to the countries having a bilateral agreement
regulating on such things.
Jurisdiction
Article 5 (3) Brussels I has case law on such matters and has been copied and pasted into Brussels I
Recast. The place where the defendant is domiciled has jurisdiction but defamation is exempted: the
courts for the place where the harmful event occurred or may occur. The interpretation for the rules
on jurisdiction is to be found in case law.
Cases (important for exam)
Shevill case was about an appeal against the jurisdiction of the UK court because the case is
connected to France. Did the harmful event occur in the UK or in France? Is it where people read the
paper (it was not an online paper, merely physical), or is it where there is a significant reputation?
What is the threshold? The court made a ruling that you can go to the place where the publisher of
the defamatory statement is established or, secondly, the place in which the publication was
Defamation = a defamatory statement is one which injures the reputation of another person: it tends
to lower him in the estimation of right-thinking members of society generally. Requirement is that
it’s published and in this regard, this means that it’s communicated to a third person.
Difference between libel and slander is that the first is in writing and the second is done orally.
If you wanted to have a claim on defamation, you had to prove that words are: published to third
parties and lower your reputation (in the eyes of right thinking people) and the defendant has to
prove statement to be true. How do you prove opinions to be true? This is hard since burden of proof
is on you. Freedom of speech and right to privacy are both at stake in this case. Privacy protects
reputation of a person as well. Art. 8 of ECHR is important here and the right to freedom of speech
(say something less positive) against interest of person’s right to privacy.
Low threshold defamation cases in UK caused forum shopping. From a UK perspective, problematic
because their courts get overburdened. It also causes situations in courts to become a question of
private international law since the question of the applicable law becomes relevant.
Internet characteristics
An influence of the internet is that it spreads way further, if I make a bad comment about who knows
where in the world where can I be held liable (internationalisation), or what Dutch people think is
non-offense might be to other cultures as we deem it to be irony or a joke. Tracking and tracing
where a defamation was made (dematerialisation), is this really possible? Long arm of the law trying
to have their law be applicable to another territory extend to other countries.
Private international law - applicable law
About contractual (Rome I) and non-contractual obligations (Rome II). General terms and conditions
are part of the contract between parties, can contain applicable law but you cannot contract out of
all obligations or rights that consumers have. General rule is the freedom of choice, it’s an important
part of the contract that can be decided on, German + Dutch parties can decide on applicable French
law. Art. 6(2) provides for the seller not opting for another type of law that provides less protection
for the weaker party than it would have under its own law.
Defamation is explicitly excluded from the scope of this Regulation, so defamation is left to the
national law of the MS after which it comes down to the countries having a bilateral agreement
regulating on such things.
Jurisdiction
Article 5 (3) Brussels I has case law on such matters and has been copied and pasted into Brussels I
Recast. The place where the defendant is domiciled has jurisdiction but defamation is exempted: the
courts for the place where the harmful event occurred or may occur. The interpretation for the rules
on jurisdiction is to be found in case law.
Cases (important for exam)
Shevill case was about an appeal against the jurisdiction of the UK court because the case is
connected to France. Did the harmful event occur in the UK or in France? Is it where people read the
paper (it was not an online paper, merely physical), or is it where there is a significant reputation?
What is the threshold? The court made a ruling that you can go to the place where the publisher of
the defamatory statement is established or, secondly, the place in which the publication was
