This article considers the private international law rules applying to tort actions generally, and the tort of defamation in particular, within Australia, the United Kingdom, Canada and the United States. It identifies outstanding jurisdictional and choice of law issues which remain for defamation actions in Australia following Dow Jones & Company Inc v Gutnick (1) (Gutnick') and the passage of the Uniform Defamation Legislation and, using an economic analysis, evaluates whether Australia's current private international law rules are meeting the policy objective of promoting certainty in the application of the law.
This article finds that the decision in the Gutnick case increase costs for publishers by article finds that the decision in the Gutnick case increases costs for publishers by requiring them too consider many legal standards in assessing the risk to which they are exposing themselves by publishing on the Internet. Further, while the Uniform Defamation Legislation ('UDL') has created greater certainty for publishers, by harmonising state and territory substantive defamation laws and mandating a single substantive law apply to all publications in Australia, it falls short by failing to address the high level of uncertainty regarding the ability of a plaintiff to recover damages from an Australian court for harm suffered as a result of an overseas publication.
This article concludes that uncertainty regarding the Australian choice of law rules for defamation could be addressed by extending the choice of law rules contained in the UDL to overseas publications. It also suggests that the expansive jurisdictional reach of Australian courts in relation to defamation could be addressed through the adoption of a less onerous forum non conveniens test.
In less than a decade, the application of Australian private international law to torts has undergone considerable transformation, especially in relation to defamation.
First, the choice of law rules for torts generally underwent substantial change as a result of John Pfeiffer Pty Limited v Rogerson (2) ('Pfeiffer') and Regie Nationale des Usines Renault SA v Zhang (3) ('Zhang). As a result, choice of law rules in Australia for both interstate and international torts are generally governed by the law of the place of the tort (or lex loci delicti).
Second, the High Court's decision in Gutnick (4) provided the High Court of Australia with the opportunity to apply private international law rules in the context of defamation occurring on the Internet. The decision raises questions, from a policy point of view, regarding the extend to which a publisher can practically comply with the defamation laws of various countries in the case of multi-jurisdictional publications. This aspect of the case, more so than the principal finding (that the place of downloading is ordinarily the place where an Internet defamation occurs) attracted significant discussion and criticism.
Third, after nearly 30 years of calls for reforms, all Australian states and territories finally enacted substantially uniform defamation laws by the end of 2006. Relevantly, these laws prescribe choice of law rules for intranational publications. However, the common law, including its choice of law rules, has been left intact for cases involving publications occurring outside of Australia.
These various developments have extensively changed the private international law framework for defamation proceedings in Australia. The assessment of the evolving rules and consideration of unresolved issues forms the basis of this article.
1. The Australian Legal Framework
A. The Tort of Defamation
Defamation may be defined as the tort of publishing to persons, other than the person defamed, imputations the effect of which is to lower the reputation of the person defamed in the eyes of the public at large. …