Jurisdictional Rule "x" in the Conflict of Laws: Challenges of Policy and Security in Internet Torts With Business Implications

• Publication year: 2023

Jurisdictional Rule "X" in the Conflict of Laws: Challenges of Policy and Security in Internet Torts with Business Implications

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Pontian N. Okoli^*

Table of Contents

I. Introduction........................................................................................398

II. Contemporary Drivers of the Internet.........................................406

A. Policy and Security............................................................406
B. The Effect of Policy on Internet Jurisdiction.....................411

III. The Case and Parties........................................................................418

A. The Nature of the Case......................................................418
B. The Parties.........................................................................420

IV. Convenient Forums..........................................................................425

A. Forum Non Conveniens.....................................................425
B. Unreasonable Exercise of Jurisdiction and Developing Countries............................................................................ 433
C. Towards a Future of Conveniens.......................................441

V. The Bridge Between Developed and Developing Countries: Defamation and Security of Obligations in Africa.............444

VI. Conclusion.........................................................................................458

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I. Introduction

International litigation has remained important despite some challenges in efforts to attain solutions to conflict of laws problems. For example, the initial phase of the Hague Judgments Project was unsuccessful.¹ The revived Judgments Project succeeded and led to the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the Hague Judgments Convention).² The Hague Judgments Convention focuses on jurisdiction in terms of recognition (or enforcement), but it also offers some indication as to what grounds of direct jurisdiction may be permissible.³ Although the current Convention covers civil and commercial

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matters, it excludes some subjects from its scope. One such subject is defamation.⁴ No consensus could be found in this "rapidly developing area,"⁵ although it is fair to extend this description to the Internet generally.⁶ Thus, defamation was excluded from the scope of the Hague Judgments Convention.⁷ The Judgments Convention has the potential to facilitate international litigation. However, the exclusion of defamation highlights the need to explore how conflict of laws rules can help to overcome challenges that litigants face. The grounds of direct jurisdiction remain a matter of practical importance in international litigation, but features of the Internet—especially its ubiquitous effect—emphasize why it is essential to examine online defamation in a practical manner. It is difficult to agree on the appropriate forum or fora with respect to the exercise of jurisdiction in internet defamation cases. Furthermore, it is considerably difficult to accept any rigid rules on parallel proceedings concerning global defamation cases. This is because there is a lack of mutual trust between States with respect to the substantive law standards that should be applied.⁸

The steady advancement of the Internet highlights the need to promote "security in law."⁹ A clear articulation of this need was set out many decades ago:

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The principle or policy of security is simply that, so far as possible and proper, a given situation should have equal legal treatment everywhere. Security in law has two faces: on the one hand, it implies the rule of law, or in other words the orderly settlement of disputes in accordance with general rules; on the other hand, it implies equality in the application of the rules, so that the same case will receive the same treatment everywhere.¹⁰

From the perspective of individuals affected, "regularity in the application of law is needed to ensure the protection of their just interests and to enable them to anticipate the consequences of their conduct, so that they can plan their affairs accordingly."¹¹ These explanations and application of "security in law" constitute a more holistic approach better suited to Internet defamation than "legal certainty and predictability."¹² This is because the latter approach does not necessarily cater to challenges that a strict adherence to legal certainty or predictability may pose.¹³ Different, or even competing, substantive national legal approaches to defamation should not ipso facto mean that there is no space for coordinating conflict of laws rules. Where there are competing domestic policies concerning "individual evaluation," justice is not essentially uncertain merely because it is not always completely certain.¹⁴ Thus, specifying the criteria for determining the forum where a party may file suit in Internet defamation cases does not translate to a scrutiny of the merits

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of each case. At the same time, however, promoting security in law largely allows jurisdictions to determine cases according to applicable laws but with a chance to assess the extent to which resulting obligations may be enforced abroad. There is nothing objectionable about this approach especially because the Hague Judgments Convention, as an analogy, innovatively "does not prevent the recognition or enforcement of judgments under national law."¹⁵ In other words, "the Convention sets a minimum standard for mutual recognition and enforcement of judgments but States may go further."¹⁶ In fact, if there is a need to distinguish between adjudicative jurisdiction and enforcement jurisdiction (and that the former may be more expansive than the latter),¹⁷ then this is all the more reason to adopt a systematically flexible approach to determining which courts can hear disputes arising from Internet defamation.

This Article considers two major senses in which security may be used with respect to the Internet. The first is ensuring that parties comply with legal procedures because compliance has an effect on how Internet defamation disputes may be resolved.¹⁸ The second is exploiting the inadequacies of complex technology to evade the performance of obligations or to cause loss to others.¹⁹ The realities of the Internet compel an inquiry into the complementarity of both senses with a view to facilitating legal redress. In this context,

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there are challenges at global and regional levels. This Article proceeds on the basis that strictly national approaches to Internet matters are unsustainable in the long term. The focus on security in law should be distinguished from other general meanings of security which may be also applicable to conflict of laws.²⁰ Secured transactions, for example, fall outside the remit of this Article even though challenges associated with the Internet clearly affect such areas.²¹ Nevertheless, areas of overlap are also instructive because they serve as a reminder that certain challenges may sometimes compel private international law actors to look beyond the traditional confines of conflict of laws. For example, security interests in intellectual property have driven a convergence of intellectual property, private international law, and security interest law.²² Like the Internet, the issue of security challenges the traditional boundaries and approaches to conflict of laws. More cross-subject synergy and international collaboration is required. There is currently "insufficient international coordination and coherence to address cross-border legal challenges on the internet."²³

It is necessary to consider how much space conflict of laws is willing to cede, not just to public international law, but also to government regulatory schemes in the context of local laws. For example, parties may decide to focus

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more on reporting regulatory breaches under regional or even national legislation, rather than pursue claims in contract or tort.²⁴ From a tort standpoint, the same set of facts may give rise to both public²⁵ and private law claims in defamation. ²⁶ More than ever, the need for collaborative endeavors across jurisdictions is pertinent.²⁷ A central aim of this Article is to ascertain the extent to which a flexible approach to the exercise of jurisdiction in defamation cases considering business implications and competing State interests can exist. The inquiry of this Article is significant partly because of a gap in specific literature on Internet defamation with respect to business implications and competing State interests, the need for (at least) international cooperation beyond traditional categorizations, and the absence of a clear policy that should drive a determination of appropriate courts to hear cases. Such issues have not been resolved, especially in a way that factors in the interests of both developed and developing countries.

This Article, therefore, addresses what jurisdictional rule "x" should be.²⁸ This is especially so as there is no agreement on what rule is ideal with respect to the Internet. Jurisdictional rule "x" represents the search for the most appropriate basis for courts to hear suits regarding defamation. This jurisdictional rule should be predicated on a clear articulation of policy that promotes security in law and obligations. The search for jurisdictional rule "x" using a purely formulaic, technical approach has impeded progress in this area of Internet defamation. There is a striking argument that such a "correct technical formula" actually "does not exist—the private international law rules in this area are not a question of technicality but a matter of policy in respect of fundamental values."²⁹ This Article will demonstrate, however, that in conflict of laws there should be a clear focus on aspects of policy that should inform legal decisions on appropriate fora to hear Internet defamation...