Re-Defining Defamation: Psychological Sense of Community in the Age of the Internet

In the era of traditional media, courts typically relied upon geographic constraints, including where a plaintiff lived or worked, to determine the appropriate community in defamation cases. The rise of the Internet has dramatically changed society – easily and immediately linking users across geography while allowing the rapid spread of information through a variety of channels that pose a challenge to the traditional media model centered around editorial judgment and professional ethics. Thanks in part to its global reach, the Internet has allowed users to engage in both business and social relationships around the world. Because of this, a person's need for a good reputation can no longer be confined solely to location. As a result, this article argues that courts must begin to evaluate other factors when determining relevant community in online defamation cases, positing that courts should utilize factors associated with psychological sense of community theory.     

Liberalizing British Defamation Law: A Case of Importing the First Amendment?

Regardless of whether American law tends to be too outlying to be relevant to the rest of the world, the U.S. free speech jurisprudence is more impactful than ever. Indeed, the United States remains a real-life laboratory for other countries in resolving clashes between press freedom and reputation. Jameel v. Wall Street Journal Europe and other recent English media libel cases are a good illustration. This article examines the liberalization of U.K. defamation law in connection with the U.S. actual malice rule while noting English courts' significant adoption of neutral reportage, which American courts consider to be less viable as a libel defense. The principle of functionality informs the article's analytical framework.     

Legal Pluralism and the Adjudication of Internet Disputes

No single entity-academic, corporate, governmental or non-profit-administers the Internet. (American Civil Liberties Union v Reno \[E.D. Pa. 1996] 929 F. Supp. 824, 832) The problems of regulation on the Internet are simply stated. First, it allows novel activities: e-mail, electronic discussion groups, simple transfer or viewing of text, images, sound and video. These activities may fall foul of laws of obscenity or defamation in some or all of the jurisdictions in which it is available. Second, the Internet is a distributed system that straddles geographical and jurisdictional boundaries; the regulation of such activities is likely to fall within two or more national 'legal' jurisdictions. It may therefore be difficult to choose an appropriate jurisdiction. Third, the inevitable need to choose a jurisdiction will mean that the values to be imposed upon the dispute will be the values of that jurisdiction, values that may be different from the values of those involved in the dispute. Much has been written on the first two problems and significant developments have been made in the formulation of principles to be applied to the problem of choosing a jurisdiction. In this paper, I will begin to focus on the third problem, the problem of inappropriate values being imposed upon Internet behaviour. The paper will develop the theme that the need for a single jurisdiction and, in consequence, the need for a single set of values to be imposed upon Internet activities is a fiction born out of centralist systems of western jurisprudence. The paper will review how courts have turned against pluralistic approaches in the past when dealing with clashes in cultural and religious values, particularly the clash in the English courts in the case of Salman Rushdie's 'The Satanic Verses'. Western courts have been dismissive of cultural and religious claims either treating them as 'repugnant' or contrary to public policy, or else questioning the validity of the motives of the applicants. It is evident from recent cases in the US, that judges will use similar techniques to impose their own value values upon Internet activity. The concept of legal pluralism is not recognised within westernised systems of law. The paper will then consider whether a more pluralistic strategy would provide a more satisfactory approach to dealing with such disputes on the Internet: an approach that would enable the resolution of the conflict between different cultural and religious values.     

Information Conduits or Content Developers? Determining Whether News Portals Should Enjoy Blanket Immunity from Defamation Suits

News portals should be held to the same standard of liability for defamation as other news media. Internet service providers (ISPs) enjoy blanket immunity from liability for defamation under Section 230 of the Communications Decency Act, while information content providers (ICPs) might not. Some courts have indicated, however, that a defendant who participates in developing third-party content should be classified as an ICP and thus be held liable. Confusion over the difference between an ISP and an ICP is applied to the case of news portals. This study investigates to what extent news portals should enjoy immunity from liability for defamation. To determine a news portal's exposure to liability, a continuum of involvement is proposed as a standard in which liability is based on a defendant's actions and not on the medium employed. A defendant's involvement with third-party content can be classified under the four levels of the continuum, which can guide courts in deciding whether a defendant is liable. Congress should amend Section 230 to incorporate the continuum and allow courts discretion in determining whether a defendant is immune from liability.     

"For the Protection of the Reputation or Rights of Others ": The European Court of Human Rights' Interpretation of the Defamation Exception in Article 10(2)

Legal observers have praised the European Court of Human Rights' defamation case law as an example to be emulated in international law. Yet scholars who have studied the court's defamation jurisprudence have focused primarily on a handful of the court's noteworthy cases. A broader examination of the court's entire body of defamation case law provides a complete picture of the court's defamation jurisprudence. The ECHR's defamation case law has come increasingly to mirror principles of common law and United States First Amendment law. Although the ECHR has produced some commendable judgments protecting speech critical of governments and politicians, it has developed a hierarchy of protected expression that leaves other expression vulnerable to restriction. Further, even though the court has condemned several specific criminal defamation prosecutions, it has failed to strike down, and has expressly condoned, criminal defamation in general.     

错误的生命之诉的法律适用

错误的生命之诉是近年来出现的一种新型诉讼。目前,法国、美国五个州的最高法院准许了原告就此提起的财产损害赔偿请求,而英国、美国19个州的最高法院、加拿大的两个省、德国联邦宪法法院均驳回了原告的损害赔偿请求。但实际上,全部或部分驳回原告方诉讼请求所持的理由并不成立,原告的确受到了侵害,受侵害的客体是拥有充分知情的父母的利益。     

Clashing conceptions of press duties: Public journalists and the courts

This article bridges the growing, but controversial, public journalism movement with First Amendment jurisprudence and libel law. It examines whether the movement finds support in laws that affect the press and, in particular, in court‐created defenses and privileges that protect journalists in modern defamation law. Do defenses that safeguard journalists in their traditional routines as fact gatherers and reporters also protect them in the kinds of roles and duties envisioned by public journalism advocates? Furthermore, has the United States Supreme Court, in non‐defamation cases involving the First Amendment, expressed concern for protecting what might be called the “public journalism functions” of the press? Does the Court create a different image for the press than the one envisioned by public journalism advocates? This article addresses these questions. It ultimately concludes that public journalists and courts have two very different conceptions about the role that journalists play in a democracy.     

The Protection of Reputation in Japan: A Systematic Analysis of Defamation Cases

Although Japanese defamation law has been a subject of legal interest for scholars and judges, their main focus was the defamation rules that appeared in cases publicized by legal reporters. The following study coded 232 defamation cases against the media that were decided in district courts in Japan, according to the type of database that reported the cases. Statistical results reveal that newspapers are more likely to report defamation cases than other databases because stories about defamation cases may satisfy readers' interest or because the newspaper might have been informed by plaintiffs who won their cases. The results also show that the professional status of the plaintiff is a predictor of the case outcome. Politicians and officials are less likely to win in defamation cases than are executives and criminals, and they received lower damages than athletes and entertainers.     

Internet court's challenges and future in China

China established the world's first Internet court in Hangzhou in August 2017. Subsequently in 2018 Internet courts in Beijing and Guangzhou were established respectively. With the official establishment of these three Internet courts, China's electronic litigation advanced to a new stage.. Internet courts offer many advantages, and this innovative adjudication model has earned widespread approval for both its speedy acceptance of cases and speedy hearing of cases. This article analyzes the questions and challenges faced by Internet courts, proposes solutions such as compliance with three basic legal ethical principles, re-establishing the sense of presence and ritual of litigation, establishment of risk mitigation mechanisms between the legal system and technological systems to develop the ability for the construction of Internet courts in China.     

Defamation in cyberspace: A Japanese perspective

The aim of this paper is two-fold: first, to introduce how Japanese law and its jurisprudence have dealt with the case of on-line defamation, which is arguably one of the most acute problems in modern society, and second, to critically examine the efficacy of such an approach. The recent decision of the Supreme Court in on-line defamation (as oppose to off-line defamation) will be introduced as an exemplar of the way Japanese law and its jurisprudence have dealt with such an acute problem. A first step will be to provide, by way of background, a brief overview of how defamation in a conventional sense has been treated by the Japanese legal system. The second step will be to outline how the Japanese jurisdiction has dealt with on-line defamation, that is to say, to what extent the Japanese court regulates on-line defamatory comments made by the ordinary people. A third step will be to examine the efficacy of such an approach, and the final step will be to examine whether the UK court can learn a lesson from the Japanese jurisdiction. The author will draw upon Japanese jurisprudence, in order to consider whether a valuable lesson might be offered to the UK jurisdiction.     

Plaintiff Identification in the “Persona Torts”: What Defamation Law Can Offer the Right of Publicity and Related Claims

Courts applying the persona torts – right of publicity, appropriation and false endorsement claims under the Lanham Act – often lack a precise methodology for determining whether a plaintiff has been depicted or identified. A number of courts have accepted the ambiguous notion that a defendant need only appropriate a plaintiff’s “identity.” Moreover, these courts apply an essentially impressionistic approach to whether that appropriation has occurred. This article, drawing from defamation doctrine, synthesizes a more nuanced and rigorous approach to the depiction question – an approach that also better safeguards important First Amendment values.     

From gatekeepers to publishers: Liability of internet intermediaries in India for hosting defamatory content

This article aims to analyse the liability of Internet intermediaries in India for hosting defamatory content. In the absence of any statutory law relating to online defamation, the courts in India have had to rely upon comparable developments in the United Kingdom to define the contours of liability of the intermediaries for facilitating the publication of defamatory content on the Internet. However, affixing liability on intermediaries in the absence of similar statutory immunities provided to them under the UK law may prove prejudicial to the intermediaries. Therefore, this article argues that India should enact a comprehensive law to statutorily limit the grounds on which liability may be imposed on Internet intermediaries for hosting online defamatory content. This article further argues that India should adopt and codify the ‘notice and notice plus’ approach to intermediary liability as it ensures that intermediaries are not held liable as publishers for hosting the defamatory content, but in the meantime are also encouraged to take active steps to ensure effective justice to the victims of online defamation.     

Trade Secrecy Injunctions,Disclosure Risks,and eBay's Influence

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four‐factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts’ more deliberative approach to patent injunctions post‐eBay has been viewed as beneficial for the patent system. Over the past decade, eBay’s influence has migrated to other areas of IP. This article offers the first account of eBay’s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP—for example, the hard‐to‐quantify risk that disclosure poses to trade secret owners—has lessened eBay’s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret—that is, where a defendant builds upon a plaintiff's trade secret but does not disseminate it—courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility.     

Public or Personal Character in Election Campaigns: A Review of the Implications of the Judgment in Watkins v Woolas

Reviewing the Election Court's decision that a candidate's parliamentary election literature was unlawful under the Representation of the People Act, the Divisional Court held that statements could either be about a candidate's public character or his personal character but not both. Though the legislation was compatible with the ECHR if it penalised only the latter, the question for the courts is really a matter of whether statement impugns a candidate's character more than merely as a necessary implication of an allegation regarding conduct such as the breaking of election promises.     

Of Values and Legitimacy – Discourse Analytical Insights on the Copyright Case Law of the Court of Justice of the European Union

The Court of Justice of the European Union (CJEU) increasingly faces societal value‐conflicts in EU law disputes. For example, in EU copyright law, in the digital age, diverse fundamental values, as well as cultural and societal developments, are at stake. This article discusses the role of the CJEU in the European value discourse, using copyright law as a case study. The methodological approach used, critical discourse analysis, is seldom applied in jurisprudential studies, but is well suited for teasing out value‐related aspects of case law. Exploratory research of seminal copyright cases suggests that the CJEU's discourse of the various values seems unnecessarily one‐sided and shallow. A lack of discursiveness in the jurisprudence would diminish the legitimacy of the Court's decisions, and would not offer adequate guidance to national courts or private decision‐makers, to whom the Court at the same time may be leaving more of the task of value reconciliation.     

Homosexuality as Defamation: A Proposal for the Use of the “Right-Thinking Minds” Approach in the Development of Modern Jurisprudence

False imputations of homosexuality have long been considered by courts to be defamatory per se, but many jurisdictions are beginning to revisit the issues surrounding homosexuality and defamation in the wake of a national debate over gay rights. This article examines whether courts should abandon false imputations of homosexuality as per se defamation and concludes that, at a minimum such statements should no longer be defamatory per se and further provides courts with a framework to go a step further and hold that such statements hold no defamatory meaning.     

Against the Grain: Therapeutic Judging in a Traditional Family Court

The last several decades have seen a proliferation of specialized courts, including within the family court system, that deviate from the adversarial model, and that rely on therapeutic jurisprudence and other problem‐solving techniques. Whether and how traditional family courts can incorporate the best practices of these specialized courts is a largely understudied area. Drawing from ethnographic observations of a traditional urban family court, this study finds that some judges are able to transform nontherapeutic courtrooms into therapeutic ones despite obstacles. These “against the grain” actors, who act contrary to the institution's dominant norms and practices, demonstrate how therapeutic jurisprudence and other problem‐solving techniques can be utilized in traditional courtrooms.     

Game of courts: A tale of principles and institutions

The ontological, terminological and conceptual confusion that surrounds the concept of ‘general principles of European Union law’ is far from being resolved. The constitutional interlocutors—the Court of Justice of the European Union and the highest courts in Member States—have at times fiercely argued about their different understanding of general principles, whereas European legal scholarship has failed to convincingly clarify the intricacies surrounding this source of law. Instead of engaging with a more abstract, theoretical question of what general principles are, this paper reflects on the practical, functionalist question: how are they used by the Court of Justice and what are some of their functions and implications? To do so, it enquires into contextual, institutional and strategic features of the Court's behaviour and jurisprudence and responses of the highest national judiciaries to this jurisprudence. The aim is to offer an alternative account of the Court's jurisprudence on general principles.     

The online defamation maze: are we finding a way out?

The main purpose of this paper is to examine the efficacy of the first decision that explored online defamation (as opposed to offline defamation) delivered by the Supreme Court of Japan. A discussion of the future implications of the case is then undertaken. The paper supports the First Instance (the Tokyo District Court) decision and its approach, and argues that such an approach might have provided greater implications for the future. The author also argues that the Tokyo District Court seems to have taken a more reflective view on the fluidity of online defamation and the nature of the online environment, and shows a degree of willingness to accept and incorporate such a nature. The author concludes that the Tokyo District Court's approach, although it could be seen as rather radical and extreme, seems to be more persuasive than that of the Supreme Court. It also submits that the court might have brought a more balanced and healthy outcome for the beneficiaries, including not only the claimants, the defendants, but also society as a whole. It is the case that innocent internet users can potentially be both the passive and active recipients of the information (i.e. comments posted on webpage). Before a detailed analysis and examination of the case is undertaken, a brief outline of how Japanese law and its jurisprudence have dealt with the traditional form of defamation (i.e. offline defamation) is provided as background.     

Biographing Realist Jurisprudence

This essay reexamines realist jurisprudence through a review of two biographies of leading realists: Dalia Tsuk Mitchell's Architect of Justice: Felix Cohen and the Founding of American Legal Pluralism (2007), and Spencer Waller's Thurman Arnold: A Biography (2005). The essay argues that when biographies of legal realists are considered alongside their academic writing, a more robust jurisprudence emerges. Realist lives crystallize the intuition that the major innovation of legal realism was not, as generally assumed, its attitude toward judges and adjudication. Instead, realist jurisprudence is an institutionalist view of law with a focus on groups rather than individuals. Realist jurisprudence understands courts, legislatures, administrative agencies, and nongovernmental groups as important loci of law, lawmaking, and legal reasoning.