A common law position for a choice of law in internet defamation ? the case for Hong Kong

• Author: Dr. Poomintr Sooksripaisarnkit
• Position: School of Law, City University of Hong Kong Hong Kong SAR
• Pages: 129-137

JICLT

Journal of International Comm ercial Law and Technology

Vol.9, No.3 (2014)

129

A common law position for a choice of law in

internet defamation – the case for Hong Kong

Dr. Poomintr Sooksripaisarnkit

School of Law, City University of Hong Kong

Hong Kong SAR

Abstract. With ever i ncreasing access and use of internet worldwide, torts

committed via internet are seen more often while legal positi ons in common law fail to

keep pace with such developments. This can be seen especially in Hong Kong where

conflict of law rules are still based on traditional common law authorities. In the event of

internet defamation, the courts in Hong Kong necessarily apply the ‘double actionability’

rules such that there would only be a cause of action if such an alleged tort is actionable

under both the law of th e form (lex f ori) and the law of the place where such wrong was

committed (lex loci delicti). But, for internet defamation, how can the lex loci delicti be

determined? This paper s eeks to analyse this pro blem and proposes a suitable approach in

determining the lex loci delicti in the event of internet defamation

1. Introduction

Whilst a freedom of expression is a value upheld by most of the worl d’s constitutional orders, a need to

protect a person from untrue statements which harm his or her reputation must also be recognised. In this

modern world, untrue statements can pass across different countries in a matter of seconds or minutes.

Such statements uploaded on websites or web-boards can attract wi de group of readers around the world.

With such new forms of defamation, however, ’…law remains local, indeed parochial’.1 It is more

complicated when, for example, a person whose reputation is harmed is sitting in his office in Hong Kong

while untrue statements relating to him are published on a website based in Thailand. Readers of that

website include a group of persons in Australia. Such a scenario raises a question on conflict of laws as it

involves ‘foreign elements’.2 Unlike in Thailand where a written but slightly outdated statute, namely the

‘Conflict of Laws Act B.E.2481’ prevails or in the European Union where the ‘Rome II regulation’3 is

applicable, conflict of law rules in Hong Kong are still based purely on common law authorities. To be

more precise, these common law authorities are all old and outdated. This is because Hong Kong did not

implement the ‘Private International Law (Miscellaneous Provisions) Act 1995’ of the United Kingdom.

To what extent such rules based upon decided common law cases of the last century can be adapted into

modern internet torts? In light of no sign of legislative interest in Hong Kong as yet, this question remains

pivotal to probe. This paper is divided into three parts. In the first part, general principles of conflict of

law rules for cross-boundary torts are briefly described. Then, in the second part, relevant decisions

relating to internet defamations in other common law jurisdictions are an alysed to see how these may

have influences upon traditional common law approach used in Hong Kong. Afterwards, t his paper will

suggest a suitable approach which the courts in Hong Kong should take in cases concerning internet

defamations.

1 Rick Glofcheski, Tort Law in H ong Kong (Sweet & Maxwell 2009) 645.

2 In this context, foreign elem ents mean contacts with those systems of la w other than that of Hong Kong. See Sir Lawrenc e

Collins and the others (eds), D icey, Morris and Collins on The Conflict of Laws Volume 1 (14th edn, Sweet & Maxwell

2006) para 1-001.

3 Regulation (EC) No 864/2 007 of the European Parliament and of the Coun cil of 11 July 2007 on the law applicable to n on-

contractual obligations.