Jurisdiction and choice of law when online content could damage privacy or honor

Michael Chertoff and Paul Rosenzweig are the authors of the recently published document A PRIMER ON GLOBALLY HARMONIZING INTERNET JURISDICTION AND REGULATIONS. In the document, they address a problem that has not yet been resolved and that the cited title sufficiently describes. As a consequence of reading this work, I am interested in highlighting the coincidences with a few of the considerations outlined in my book, “Defamation on the Internet, problems of jurisdiction and applicable law,” which was just published in Argentina by the editor Ad-Hoc.

Thanks to the Internet, the possibility of content distribution has a never-before-seen reach. In addition, the places this content ends up are increasingly unknown by the author. All of this has an enormous impact in the legal world. The general problem that I address in my book is related to the problem of determining jurisdiction and the applicable law in cases of possible damages to honor – and to privacy – through content produced and received by subjects located in different countries.

To respond to this problem, as I demonstrate in my book, distinct solutions may be adopted, which I refer to as models: the model that follows the server – the applicable law on jurisdiction follows the place where the data is hosted -, that which follows the author – it follows the place where the author is or his/her citizenship-, and that which follows the victim – the same as the last model, except now with regard to the victim. These are models that I construct from judicial decisions from the United States, the United Kingdom, Australia, and various countries in Latin America.

Chertoff and Rosenzweig offer similar alternatives: "We propose a choice-of-law rule based on either: the citizenship of the data creator; the citizenship of the data subject; one based on the location where the harm being investigated has taken place; or one based on the citizenship of the data holder or custodian."

The coincidences we have are evident. But perhaps the most significant is that it will be difficult to resolve this problem without an agreement between the States that choose one of the proposed models. The coming years will tell us if this agreement is possible.