Internet Defamation: A Solution to the New Zealand Jurisdiction Conundrum

Abstract

Aptly named, the world wide web is characterised as "the most participatory form of mass speech yet developed". 1 It offers the opportunity to broadcast defamatory statements worldwide at the click of a mouse without stepping a physical foot outside one's home forum. At odds with the traditional common law approach, which locates a defamatory publication as occurring at a single place and at a single point in time, the advent of instant global communications via the internet has provided a "borderless" environment where defamatory material, once published, can be read and comprehended by anyone, anywhere with an internet connection. Raising complicated issues of private international law, recent common law decisions illustrate the difficulties of reaching a consensus that reconciles existing jurisdictional laws with the realities of internet publishing. Broadly speaking, courts faced with whether or not to assume jurisdiction in internet defamation suits straddling a multiplicity of forums have taken one of two paths. The first is the Anglo-Australian approach, whereby, maintaining traditional private international law doctrines, online publications are treated as analogous to existing means of communication in the defamation analysis. This results in carving up the internet into discrete legal spheres and increasingly tenuous connections between the claim and forum, curbing rights to free speech in other countries. Secondly, the courts in the United States and Canada follow a different path, where the parties must meet additional hurdles in order to confine the nexus between claim and forum in internet cases.