Search

Conflicts 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. [ABSTRACT FROM AUTHOR]

Online harassment is a significant and growing problem. Under current conditions, however, economic pressures and constitutional restrictions make actionable change unlikely. This Article proposes a model for community self-governance that may be termed ‘e-judiciaries,’ in which online community members participate in a process of reviewing and disciplining alleged participant misconduct. In support of this model, the Article examines quantitative and qualitative data from a major online community that has adopted this approach to self-regulation. Empirical analysis suggests that this regulatory design leads community members to adopt an aggressive approach to policing harassment. Such a system, expanded more broadly into other online communities entailing high amounts of user-generated content and activity, has the potential to work as an effective anti-harassment countermeasure. [ABSTRACT FROM AUTHOR]