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Defamation on the Web

The use of the World Wide Web has implications for the law relating to conflict of laws.
This is the body of law developed to address questions generated by the involvement in a legal issue of one or more legal systems or, more correctly, legal jurisdictions.

Publication on the Web involves publication everywhere the material is accessed. Therefore publication will, potentially if not actually, invoke the legal rules of every place of access. Eoin O’Dell publishes in Ireland and is, therefore, in the view of Irish law, subject to Irish law.

If the Great Firewall of China is incorrect and Mr. Eoin O’Dell’s site is not blocked from access by the people of China, then, as viewed by Irish law, the law of China applies to his publications there.

Of course the law of China may not see matters in that way.

For example, the law of the United States takes the view that the applicable law (and jurisdiction) is the law of the place of “uploadingâ€? or “hostingâ€?.

UK and Australian law corresponds with Irish law.

However the UK courts have, in Jameel v Dow Jones & Co, ameliorated this readiness to assume jurisdiction by requiring the Plaintiff to prove substantial (certainly “non-minorâ€?) readership and therefore substantial damage, in the UK, before being permitted to proceed with the action.

This case was in no way out of kilter with Gutnick v Dow Jones & Co., an earlier Australian case.

Mr. Gutnick lived in Australia and was libeled by the Defendants on the Internet. The Defendant objected to the courts of Australia having jurisdiction, not by reference to the extent of publication, or otherwise, in Australia, but on the grounds that the “uploadingâ€? or “hostingâ€? took place in the USA.

This involved the Defendant appealing to the Australian court to accord sole jurisdiction to the US courts, an appeal which, not surprisingly, was unsuccessful. The Defendant settled with the Plaintiff for a substantial amount.

Assume that Eoin O’Dell falls foul of the law of China, what would it mean to him if he were accused in a Chinese court of libeling some citizen of China? Probably nothing, assuming he intends never to travel to China. An adverse judgment in such a court is not enforceable in Ireland, where Eoin O’Dell lives.

Eoin O’Dell has the advantage, relative to a business like Dow Jones & Co., of not conducting business in China or of having any assets in that jurisdiction.

It is this latter point that is likely to determine the practicality of proceedings commenced in distant jurisdictions, rather than the exposure to many systems of law.