The Defamation of Choice-of-Law in Cyberspace: Countering the View That the Restatement (Second) of Conflict of Laws Is Inadequate to Navigate the Borderless Reaches of the Intangible Frontier

By Davis, Philip Adam | Federal Communications Law Journal, March 2002 | Go to article overview

The Defamation of Choice-of-Law in Cyberspace: Countering the View That the Restatement (Second) of Conflict of Laws Is Inadequate to Navigate the Borderless Reaches of the Intangible Frontier


Davis, Philip Adam, Federal Communications Law Journal


So she sat on, with closed eyes, and half believed herself in Wonderland, though she knew she had but to open them again and all would change to dull reality....

--Lewis Carroll (1)

I. INTRODUCTION: THE DEFAMATION OF THE RESTATEMENT (SECOND) OF CONFLICT OF LAWS IN CYBERSPACE

The new information age has caused scholars to consider the adequacy of traditional jurisdictional regimes where interstate disputes arise in cyberspace. Personal jurisdiction has been one of the first of these regimes to undergo criticism and, for the most part, has come out relatively unscathed, despite its opponents' arguments that traditional notions of personal jurisdiction have no place in cyberspace. (2) While the assault on personal jurisdiction in cyberspace has lessened in recent years, in its wake has come yet another attack on conventional jurisdictional notions: a criticism of traditional choice-of-law regimes in cyber-disputes.

Much in the same vein as their assault on personal jurisdiction, many scholars argue that traditional choice-of-law doctrines are inadequate to determine which state law to apply in interstate cyber-disputes. (3) While these critics assert many arguments in support of their view that traditional choice-of-law approaches are inadequate for cyberspace, (4) the overwhelming criticism is that "old choice-of-law doctrines fail to provide any meaningful guidance in the virtual world because these doctrines depend on notions of physical location." (5) Essentially, the argument is that "because there is no `there' in the virtual world, [traditional choice-of-law] doctrines are virtually useless." (6) In the same breath, many scholars are eager to propose offending alternative regimes to these perceived problems with choice of law in cyberspace, (7) most of which deal with choice of law by ignoring it. (8)

While many opponents criticize traditional choice-of-law regimes in cyber-disputes arising out of contracts, trademark infringement, and other areas of law, much of the criticism focuses on the law of defamation in cyberspace, or "cyber-defamation". (9) The brunt of this scholarly attack on traditional choice-of-law regimes almost certainly falls on cyber-defamation actions. This is because of the unique aspect the law of defamation brings to cyberspace: publishing on the Internet is publishing instantaneously all over the world. Thus, in a multistate cyber-defamation action, a defendant could conceivably collect for damages in any state where the defamatory material was published. (10) As one scholar notes, "[t]he Internet allows anyone connected to it to disseminate information, statements, gossip, and so on, to millions of people with a few strokes on a computer keyboard. Thus millions of people now have their own electronic printing presses--capable of inexpensively communicating with millions of others worldwide." (11) Clearly, the law of defamation represents the perfect lens through which to examine the adequacy of traditional choice-of-law regimes in cyberspace.

Despite the various choice-of-law doctrines available, (12) the focus of this Note is almost entirely on the Restatement (Second) of Conflict of Laws ("Restatement (Second)") for two reasons. First, the Restatement (Second) is an eclectic mix of dominant policies and principles taken from traditional choice-of-law doctrines. (13) Second, of those states turning away from the original Restatement of Conflicts of Laws, most are adopting the Restatement (Second). (14)

This Note examines the adequacy of the traditional choice-of-law rules, including the Restatement (Second), in interstate cyber-defamation disputes, and argues that there is nothing different or unique about cyberspace which warrants the modification or abandonment of traditional choice-of-law regimes for cyber-defamation disputes. A distinction must be made, however. This Note does not attempt to argue the adequacy of traditional choice-of-law approaches in and of themselves; the disparaging of traditional choice-of-law doctrines in the real world has been and continues to be a pastime among practitioners and scholars alike. …

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