Tolofson and Flames in Cyberspace: The Changing Landscape of Multistate Defamation
University of British Columbia Law Review, Vol. 31, No. 1, 1997
36 Pages Posted: 21 Nov 2007
This early paper, published at a time when legal issues relating to the internet were still relatively new, examines the conflict of laws issues surrounding on-line defamation claims, and particularly the question of what choice of law should apply in Canada in light of the Canadian Supreme Court decision in Tolfson v. Jensen (1994), which established a new choice of law rule for tort cases involving conflict of laws.
The paper begins by suggesting that on-line defamation claims will likely increase dramatically in the coming years, and examines the conflict of laws issues that will thus arise. It proceeds to examine the nature of the tort of defamation, emphasizing that the complex area of law is primarily concerned with protecting the private right to protection of one's reputation, which in turn will inform the analysis for choice of law. Next the analysis moves to an overview of the conflict of laws rules that governed defamation and all other tort claims prior to Tolofson, with the choice of law rule having been that to ground a claim a plaintiff had to prove that the wrong was actionable under the law of the forum in which the claim was made(lex fori), and that it was not justifiable under the law of the jurisdiction in which the tort was committed (lex loci).
Moving to an analysis of the reasons in Tolofson, an automobile accident insurance claim case, the paper reviews the Court's establishment of lex loci delecti as the new rule governing choice of law in tort cases involving multiple jurisdictions. The paper analyzes the extent to which the Court may have left room for an exception for those cases in which the tort occurs in one jurisdiction but the greatest harm is suffered in another. Finally, the paper considers the nature of multi-state defamation via the internet, and queries the extent to which it really raises new and novel issues that require unique rules. It makes the modest claim that there are some circumstances in which on-line defamation may raise new issues. The paper concludes by suggesting that a consideration of the values that defamation law seeks to protect, the nature of on-line defamtion, and the narrow exception that the reasons in Tolofson may permit, would form a basis for a specific rule for choice of law in on-line defamation cases, that being to apply the law of the place of greatest harm.
Keywords: Internet, on-line, defamation, libel, conflict of laws, private international law, choice of law, cyberspace
JEL Classification: K13, K33,
Suggested Citation: Suggested Citation