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7 J. Media L. 1 (2015)

handle is hein.journals/joomaw7 and id is 1 raw text is: 



Journal of Media Law, 2015                                              Routledge
Vol. 7, No. 1, 1-35, http://dx.doi.org/10.1080/17577632.2015.1055942 R






The   law   applicable to cross-border defamation on social media:
        whose law governs free speech in 'Facebookistan'?

                                   Alex  Mills*

                   Faculty of Laws, University College London, UK

                 (Received 9 January 2015; accepted 23 March 2015)

      In the past decade, social media platforms such as Facebook and Twitter have
      gone  from being a novelty to becoming an essential part of many people's
      personal and professional lives. Like previous changes in communications
      technology, social media poses  a legal challenge. Can existing laws be
      applied or adapted  to this new context, or does  it pose new  problems
      requiring new solutions? This article examines one aspect of this question
      through  an analysis of the private international law issue of what law
      applies (or should be applied) to cross-border defamation claims on social
      media. Cross-border defamation raises a range of issues, including private
      international law questions regarding which courts should adjudicate claims
      and  which  substantive law should  be applied. While  the jurisdictional
      issues are  important and  have  a significant impact on  the issues of
      applicable law, there are distinct questions and concerns raised by the
      choice of law question for cross-border defamation on social media. Indeed,
      it is a topic which perhaps raises some of the most difficult issues in private
      international law, as well as having important broader consequences for
      media  law and free speech regulation. At a general level, it concerns choice
      of law in defamation, which has proven  a particularly challenging subject
      in practice and in proposed law reforms - at present it remains excluded
      from  both UK  and  EU  statutory rules concerning choice of law in tort.
      More  specifically, it concerns defamation online, a context which might be
      grounds  for suggesting that a further specialised rule is required - a view
      taken by  the ECJ in relation to jurisdiction over online defamation. And
      finally, it concerns defamation  online on  social media,  which  raises
      challenging issues in terms of adapting the law to new media contexts, as
      well  as identifying the relevant 'public' within which a  reputation is
      established. These are not just difficult practical questions, arising with
      increasing frequency in litigation, but also problems of principle which
      have broader implications. As social media become increasingly important
      modes  of socialisation and communication, greater attention will need to be
      paid to the question of whose  law  governs standards of free speech on



*Email: a.mills@ucl.ac.uk. This article was originally presented at a conference on 'The
Legal Challenges of Social Media to Freedom  of Expression', held at the University of
Leicester in December 2013, and thanks go to the conference organisers and participants.


C 2015 Taylor & Francis

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