Defamation in the Internet context raises new challenges that do not always have clear solutions. When a defamation case crosses borders, with a claimant suing a defendant outside of the country where he or she lives, which country's laws should apply?
In Latin America, where defamation laws are not consistent, the issue threatens to erode the universal right to freedom of expression, which is enshrined by nearly every national constitution in the region. Definitions of what constitutes a criminal defamation offense – and therefore its consequences – vary throughout the region. A critical comment online could lead to a fine in one country but a prison sentence in another.
New cases, new scenarios
The liabilities faced by Internet service providers, search engines, and platforms that allow users to post their own content (such as Twitter and Facebook) is another issue to be considered. Should search engines be held liable if they offer links to defamatory content?
In an interview with Global Voices Advocacy, attorney Eleonora Rabinovich, director of the Freedom of Expression Program at the Association for Civil Rights Asociación por los Derechos Civiles [es] (Association for Civil Rights, ADC) explained the complexity of the issue:
The issue of intermediary liability has become particularly evident in Argentina due to a myriad of legal actions filed by different ‘celebrities’ and well‐known public figures against Google and Yahoo! for violation[s] of their honor and privacy, or for unauthorized use of their names and images on websites with sexual or pornographic content.
The well-known case of the Argentinian singer Virginia Da Cunha, who sued Yahoo! after her image was reproduced on websites with sexual and pornographic content without her consent, reached the Supreme Court. The judges ruled that Yahoo! contributed to the spread of the defamatory content and that because the search engine had the technical abilities to prevent this from happening, it could be held liable for the offense, even though it did not create or promote the defamatory images in any way.
In May 2011, ADC opposed the decision arguing that,
Argentine judges fail to analyze the inhibitory and silencing effect that their decisions have on third parties, and they do not develop an appropriate appreciation of the constitutional values involved in the cases to be solved.
Towards a New Legal Model
The right to free expression is a pillar of any democracy and must be protected. In countries where defamation is defined as a criminal offense, a person who posts an online message criticizing another can face criminal trial and imprisonment. Criminal defamation is considered to go against the American Convention of Human Rights due to its chilling effect on freedom of expression. In recent years, several Latin American countries have taken steps to decriminalize it. However, there is still much to be done in this respect. Brazil, Colombia, Ecuador, and Venezuela still criminalize defamation.
National Endowment for Democracy Fellow Eduardo Bertoni believes that defamatory content disseminated on the Internet poses particular dilemmas for governments by raising the question of territorial jurisdiction. Leading a recent roundtable discussion entitled, “Internet Jurisdiction: The Problem of Online Defamation in Latin America,” Bertoni posed the question:
In Internet defamation cases, should actions be brought before the court with jurisdiction over the victim or over the offender? Should other criteria be taken into account? Which judges should be entrusted with this analysis?
When legislation is not consistent from country to country, a single case can have dramatically different outcomes depending on where it is tried. This is particularly prevalent in places like Latin America, where language and certain legal norms are shared among many countries in the region. Defamation cases are complicated in the online world, where there are often online and offline editions of publications, search engines, and other intermediaries involved in the hosting of the content in question. It it is easy to imagine someone trying to have his case heard in a jurisdiction that will work to his own benefit.
In his research, Bertoni – who is also the director of the Center for Studies on Freedom of Expression and Access to Information (CELE) at Palermo University School of Law, in Buenos Aires – identified three main models that judges have used to determine where (or in what country) defamation cases should be decided.
Under this model, the jurisdiction (or the country whose laws will be applied to the case) is determined according to the location of the server that hosted the offending content. Yet this may not be the same country where the content was viewed or downloaded.
Bertoni described one Argentinean case involving offending content that appeared in a newspaper with both online and print editions. Judges applied the server model, but somehow confused online and print media. They determined the jurisdiction for the case based on the location of the print version of the online newspaper. The case was decided in the city where the content in question was printed — not the city where the claimant lived. Cases like this highlight the lack of a basic understanding of how the Internet works; the judges were thinking in a traditional way about a non-traditional medium.
Commenting on this case, Bertoni noted that,
Some policy makers or judges do not understand the difference between an online statement and the ordinary press and they apply similar principles in an incorrect way.
Here, jurisdiction depends on the nationality of the victim or the country in which the victim downloads the content. This model has been used in cases in the US, the UK, Australia, Canada and in some European courts. This model centers around the idea that one's honor or reputation can be damaged in any part of the world, and thus gives the victim the ability to go to court in their own country or municipality of residence.
Under the author model (somewhat the opposite of the victim model), jurisdiction is selected based on the nationality or place of residence of the author of the content. Many advocates favor this model as it allows the author to be tried under the law in her own country, by which she unquestionably must abide, regardless of where else in the world her words (defamatory or not) might be read.
Courts Should Focus on Enforcement, Not Jurisdiction
Bertoni suggests that courts should focus on enforcement rather than jurisdiction. His proposed model is inspired by the American SPEECH Act, a federal statutory law in the US that makes foreign libel judgments unenforceable in US courts, unless those judgments are compliant with the First Amendment (this is an attempt to fix the problem of libel tourism).
Bertoni's proposal would require increased harmonization of defamation laws from country to country and the decriminalization of defamation, following the standards of human rights bodies such as the Inter-American System for the Protection of Human Rights. The aim, he concluded, is that no matter the place, the law should be consistent and equal in all cases.