Private Harms in the Cyber-World: The Conundrum of Choice of Law for Defamation Posed by Gutnick v. Dow Jones & Co.[dagger]

Reputation, reputation, reputation! O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial. My reputation, Iago, my reputation!1

The purest treasure mortal times afford

Is spotless reputation: that away,

Men are but gilded loam or painted clay.2

I. Introduction

Shakespeare's Moor of Venice, Othello, exemplifies the lengths a person will resort to in clearing one's reputation.3 Duped by Iago, Othello believes himself to be a cuckold. With his wife supposedly in the arms of another man, Iago convinces Othello that if his peers hear of this affair, it will be the end of the good fortune that led to Othello's rise to high rank in the Venetian military.4 With the thought of a soured reputation eating at his sanity, Othello reacts with rage.5 He orders the death of his wife's suitor and prepares himself to confront his wife about her infidelity.6 It is only after Othello kills his wife that he learns of lago's manipulations and the false statements Iago made impugning Desdemona's honor.7 It is the consummate tragedy.

Transport Desdemona forward a few hundred years. Iago has not told Othello directly of Desdemona's alleged betrayal; instead, he is a reporter and has printed a denigrating story about the affair on the website of The Venetian News, which is read by people around the globe.8 Desdemona's reputation is her gateway to the world community; it goes before her to tell others of her honesty, trustworthiness, and ethos.9 It is the first thing that ingratiates Desdemona to her peers, and it is the last thing she wants to see tarnished.10 The article has falsely defamed her, and she has a right to see that reputational harm redressed in a court of law.11 As Shakespeare recognized centuries ago, persons who have lost their reputation are left with little else, for one who has a bad reputation is worth little.12

Yet the remedy that Venice has a right to afford to Desdemona's reputation has traditionally been limited to the reputational harm suffered within its geographical boundaries.13 This was historically sound because the harm caused by a defamatory statement was generally confined to a single geographic zone, which had an interest in protecting its citizens from harm.14 As communications technology advanced, however, the reach of the harm to reputation outstripped the reach of the interest of a single state in offering full legal redress for that harm.15 With the advent of the Internet, lago's words can now reach around the globe at the push of a button, leaving Desdemona with great harm and Venice with a question of whether it can, under choice of law principles, extend its own law from the physical world into the cyber-world to protect her. '6 How does the physical world regulate defamatory communications on the Internet through choice of law concepts, when these communications defy the limits of the physical world?17

This Note offers a modest proposal as an answer to this important choice of law problem, attempting to chart both Desdemona and Iago a course in the treacherous waters of international Internet defamation. Part II outlines the elements of a cause of action in defamation18 and the requirement of publication, as well as traditional choice of law for a defamation action.19 Part III addresses how these geography-oriented choice of law considerations for defamation have been challenged by the boundless Internet, even though courts have tried to apply them in due course.20 Part IV explores how the Australian High Court, in Gutnick v. Dow Jones & Co.,21 used the traditional stateoriented approach to defamation choice of law to apply local law at the cost of ease of international communication.22 This Part also analyzes the logical errors committed by both the High Court and Dow Jones in resolving the thorny issue of choice of law for international defamatory Internet communication.23 Finally, Part V posits a new approach to choice of law for international defamation on the Internet, using arbitration to establish the law of a single country to apply in an action for defamation, if the plaintiff opts not to take a binding determination of falsity with a concurrent duty on the defendant to retract the statement.24 But first it is important to understand the purpose of the tort of defamation and its original elements.

II. Defamation, Publication, and the Situs of Harm

The tort of defamation is meant to remedy harms that cannot be quantified in terms of personal physical damage but that are more ethereal and social.25 "[D]efamation is an invasion of [a person's] interest in reputation and good name."26 The tort's objective is to rectify the harm caused from statements made by one person to another about a third, so the content of the statement and the form of dissemination are central to the tort.27 But there is no steadfast rule on what is or is not defamatory.28 Instead, the tort has an ad hoc nature due to the competing concerns of freedom of expression and freedom from personal invasion and reputational insult.29 There is a general consensus, however, on the form of the cause of action, and the need for a publication as the necessary link between insult and injury.30 This Part first explores defamation in the abstract31 and then discusses publication of the defamatory statement as the heart of the tort.32 Finally, this Part describes how publication and choice of law principles33 intersect to resolve the question of what law to apply in a multijurisdictional defamation suit.34