establishing jurisdiction for online libel

Because the internet is a global network, accessible anywhere, one of the questions I often hear when training online community hosts and moderators is "which country’s libel laws apply?". The BBC World Service is a perfect example of how complicated this can get:

  • The BBC World Service has it’s headquarters in London
  • Traffic to BBC websites is load balanced across servers on each continent
  • The World Service has satellite offices where local staff work from in most countries around the world
  • Visitors to the website can come from anywhere

The matter is complicated more when we talk about online libel that comes from user generated contributions – the party who wrote the defamatory comment or post could be in yet another country. So whose libel law applies? Well, most web publishers include a clause in their website’s terms and conditions stating that the law for the country where their operations are based is the law that applies. But this is really probably little more than wishful thinking. To paraphrase one English legal scholar, "Parliament reserves the right to make it illegal for a frenchman in Paris to smoke" – and, no doubt, other governments who wished to could ignore website statements about whose law applies to that website.

In December, an Arizona Court of Appeals ruled that a Phoenix based hosting company can’t be sued in Arizona by a Bali based businessman who claims he was libelled on a website hosted by them. In other words, the location of the corporate HQ and servers in Arizona wasn’t enough for the Arizona court to claim jurisdiction over the case. More about the case, including links to a newspaper article reporting it and the case decision itself, can be found on Robert J. Ambrogi’s Media Law blog.

So who does have jurisdiction in internet libel cases? I suppose the answer is the court that is willing to take the case on which is probably a more uncertain position than many of us thought we were in.