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.

• Author: Davis, Philip Adam

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)

1. 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. (15) Further, this Note does not argue which choice-of-law approach would be most effective in dealing with cyber-defamation. The only goal of this Note is to demonstrate that traditional choice-of-law rules are not confounded by defamation disputes arising in cyberspace.

2. BACKGROUND: THE LAW OF DEFAMATION AND THE RESTATEMENT (SECOND) OF CONFLICT OF LAWS

   Cyberspace is a breeding ground for defamation. (16) Several factors contribute to this. As one commentator suggests, "[T]he low cost of cyberspace communications makes wide-scale distribution of wrongful communications possible." (17) Therefore, "the caution ordinarily exercised in face-to-face real space tends to recede in the world of anonymity and solitude that one finds in front of computer terminals. The temptation to engage in otherwise reckless behavior increases the probability of [cyber-defamation]." (18) Further, messages in cyberspace "transmit few social cues, so people communicating electronically tend to talk more freely than they would in person." (19) Moreover, cyberspace provides numerous forms by which people can engage in cyber-defamation, whether via an e-mail message, a message posted to a newsgroup or bulletin board, or an available file via file transport protocol or database. (20) More than ever before, people are linked to one another across the country by engaging in various forms of communication. The more people communicate with one another, the greater the potential for defamation suits.

   Due to the ease with which one can publish defamatory material via cyberspace, the potential for global publication of the material instantaneously (21) , and the varying defamation laws among states (22), choice-of-law plays an even more crucial role in interstate defamation actions.

   1. The Law of Defamation

      In general, defamation refers to a "false written [or spoken] statement that exposes a person to public ridicule, hatred, or contempt, or injures [their] reputation." (23) The basic elements of a defamation action commonly include: (1) a statement of fact was published by showing or saying it to a third party; (2) the statement was false at the time it was made; (3) the statement was defamatory; (4) the statement reasonably refers to the plaintiff; (5) the statement was made with the requisite degree of fault; and (6) the statement caused actual injury. (24)

      Despite the common elements of defamation shared among states, many key variations in defamation law exist. For example, state defamation laws may vary on the requisite degree of fault required in defamation cases, (25) the requirement of falsity, (26) distinctions between fact and opinion, the defamatory nature of the statement, the requisite reference to the plaintiff, (27) the availability of defenses and privileges, (28) and special procedural rules. (29) These differences among state defamation laws "reflect deliberate state policy choices, stemming from a balance of free speech values against interests in compensating injured plaintiffs." (30) Such state policy choices are what choice-of-law doctrines, like the Restatement (Second), serve to protect.

      In a defamation action, a plaintiff may sue (i.e., personal jurisdiction is proper) in any state in which the plaintiff can prove that someone received the defamatory message. (31) "However, that forum's law will not necessarily govern the suit. It is that forum's choice of law rules that direct the court to the applicable law." (32) As is evident, choice of law is a critical tool for the sophisticated attorney (33) in interstate defamation actions; it is one tool that could easily determine the ultimate outcome of the case. (34)

   2. The Restatement (Second) of Conflict of Laws Approach for Defamation

      Whether the case ends up in the federal court system by way of diversity jurisdiction or in the state court system, a judge must always apply the forum state's choice-of-law rules. (35) In addition, in order for a state law to be selected in a constitutionally permissible manner, a state must have a significant contact or contacts creating a state interest such that the choice of its law is neither arbitrary, nor fundamentally unfair. (36)

      Under the Restatement (Second), (37) the first step is to determine whether the alleged defamatory material was published in one state, or two or more states. Where alleged defamatory material is published in only one state, there is a presumption that the law to be applied is "the ... law of the state where the publication occurr[ed]." (38) This presumption can only be rebutted by demonstrating that "some other state has a more significant relationship, to the occurrence and the parties, in which event the ... law of the other state will be applied." (39) Thus, all relationships being equal, the law where the defamed party is domiciled controls by default. In multistate defamation actions, where the defamatory statement is contained "in any one edition of a book or newspaper, or any one broadcast over radio or television, exhibition of a motion picture, or similar aggregate communication[,]" (40) there is a strong presumption that the state with the most significant relationship will be "the state where the person was domiciled at the time, if the matter complained of was published in that state." (41) In multistate defamation actions involving corporations or other legal persons, "the state of most significant relationship will usually be the state where the corporation, or other legal person, had its principal place of business at the time, if the matter complained of was published in that state." (42)

      Again, in order to overcome all presumptions stated above, one must demonstrate that another state has a more significant relationship to the dispute. (43) Judges make this determination by applying the choice-of-law principles listed in...