Edited by David Mangan and Lorna E. Gillies
Chapter 13: Choice of law in defamation and the regulation of free speech on social media: nineteenth-century law meets twenty-first-century problems
Social media networks have democratised the power of mass communication. One less laudable consequence of this development is, however, that individuals are at a much greater risk of committing defamation than existed under traditional media, which would generally exercise editorial control. The legal problems associated with defamation on social media are made more complex by the fact that through the internet in general, and social media in particular, communications will readily cross borders. Where a communication crosses borders, the question of the applicable law arises – whose law should govern whether the communication gives rise to an actionable claim for defamation? This is a problem which is addressed by rules of private international law, in particular through choice of law rules. This chapter examines the rules which apply in the English courts to determine which national law governs cross-border claims in defamation, considering whether a special rule should apply for online defamation, and whether the problems raised by social media require further specialised regulation. In so doing, it also analyses why the applicable rules, which were developed in the nineteenth century, have proven so resistant to modernisation in the face of the challenges of the twenty-first century. Keywords: choice of law; jurisdiction; defamation; libel; social media; internet
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