International Libel and Privacy Handbook: A Global Reference for Journalists, Publishers, Webmasters and Lawyers

The hockey world was shocked more than two years ago when, in the middle of a match, Todd Bertuzzi of the Vancouver Canucks sucker punched Steve Moore of the Colorado Avalanche. Mr Moore subsequently sued Mr Bertuzzi for the tort of battery, and the case is still before the courts. The sorry incident has spawned another lawsuit, in which the defendant is the New York Post. The Plaintiff is the (then) General Manager of the Vancouver Canucks, Brian Burke. Mr Burke claims that the Post defamed him by publishing a column in which it was stated that Mr Burke incited his players to “get” Mr Moore prior to Mr Bertuzzi's attack. Interestingly, while Mr Burke is an American citizen, and the Post is an American newspaper, published in print mainly in the metropolitan New York area, Mr Burke filed his lawsuit in Vancouver, where he resided at the time. The New York Post filed a motion to dismiss Mr Burke's lawsuit before the case went to trial, on the grounds that the Vancouver court had no jurisdiction over the matter. Mr Burke countered by claiming that as the Post was available over the internet and was read online throughout the Vancouver area it was appropriate to try the case in Vancouver. The motion was ultimately decided in favor of Mr Burke by the British Columbia Supreme Court.

The Burke case exemplifies the manner in which issues of tort law and jurisdiction are increasingly intertwined in contemporary case law. Of all torts intertwined in such a manner none is more prominent than the tort of defamation (composed of the two torts of slander – defamation in passing, and libel – defamation of a more permanent nature). Courts worldwide have found that their decisions over jurisdiction increasingly rely on an analysis of the tort of defamation, and the understanding of defamation has been, in turn, transformed as a result. Easy access to material via the internet has led courts to conclude that, less the floodgates of litigation be opened, more is required of plaintiffs in order to establish jurisdiction than mere “online publishing” of material offensive to them. One factor to consider is the harm done to a plaintiff by the publication in a particular jurisdiction. Another is whether the defendant, in publishing the material, should have reasonably foreseen a plaintiff arising in the jurisdiction claimed. Space allows only a limited discussion here, yet unfortunately the reader who picks up a copy of the International Libel and Privacy Handbook in the hopes of a more detailed read will be sorely disappointed, as the interaction between the tort of defamation and the doctrine of jurisdiction is barely mentioned within its covers.

For a book claiming to be both a handbook and to offer a global perspective on the issue of defamation the omission is glaring, and is my main bone of contention with a manuscript that is otherwise reasonably competent and, at least in parts, well researched. The book is a compilation, by geographical regions, of answers submitted by attorneys in various jurisdictions to a uniform set of questions on privacy and defamation put to them by the book's editor. The book also includes several chapters of a more general nature, some, such as the chapter on the US “fair use” doctrine of copyright law, with more tenuous connection to the book's overall theme than others.

I confess that I have read the book in a manner that few probably will – from cover to cover. The book is meant to serve as a handbook, so it is anticipated that the journalist, webmaster, publisher or lawyer (all listed as target markets on the cover) interested in a particular jurisdiction will flip the book open to the jurisdiction in mind, and perhaps consult the cross‐jurisdictional chart at the end of the book, which is an excellent and well‐needed feature in a book of such kind. Yet I doubt whether all of the book's potential readers will be equally served by it. It is not thorough enough to serve as a resource for lawyers facing litigation under foreign jurisdiction. Some of its sections are lengthy (USA, Belgium) while others are too brief (India, Japan). Some of its content is too practical for lawyers, almost bizarrely so as is evidenced by the advice given to a person served with papers in China (pp. 95‐6). And there are some omissions which would be of interest to lawyers and non‐lawyers alike, such as a marked lack of discussion of the burden of proof in defamation cases and where it falls in each jurisdiction. England is a jurisdiction of choice for plaintiffs because every statement is presumed to be false, and defendants must actively prove that their statement was true. In the USA the tables are turned and statements are presumed to be true. The reader would be hard pressed to understand this distinction, which has enormous practical significance, from the book alone, let alone attempt to understand the burden of proof in other jurisdictions, although I suspect non‐lawyers will be drawn more to the examples that have been found to constitute (or not) defamation within each jurisdiction, and not to the more theoretical discussion of points of law. The defenses of absolute and qualified privilege also receive unequal treatment, mentioned in some jurisdictions (Australia) but omitted in others (Canada). In the end, the book is probably of the greatest interest to a comparative scholar about to pursue research into its topics and looking for a quick introduction to the law of defamation and privacy of a particular jurisdiction.

Viewed from that particular perspective the book raises several additional questions. Why were some jurisdictions included in the book while others were excluded? Obviously some selection process was undertaken which resulted in the inclusion of countries such as Switzerland and the exclusion of regions such as the Middle East. Yet arguably the jurisdictions of the Middle East produce more news stories than Switzerland. Is not their media law of more interest to journalists and publishers than the law of a peaceful European jurisdiction? The lack of a theme connecting the various jurisdictions selected for the book is also apparent in the decision to group them by geographical area. The legally trained reader is interested in a comparison that highlights the similarities and differences between legal systems, and I often found myself flipping pages back and forth trying to compare common law jurisdictions with each other, and civil law jurisdictions with each other. That is where the comparative chart, at the end of the book, comes in extremely handy. And while the book does not group jurisdictions of a similar legal system together it does appear to draw distinctions on a political basis. Laws of censorship are mentioned with respect to some jurisdictions (China, Russia), but not others. The omission is misleading – we view Western democracies as democracies, and other nations as totalitarian, not because those nations have laws “on the books” which enlightened democracies do not, but because in liberal democracies the operation of laws of censorship is subject to the general rule of law. Yet the reader would not know, from reading this book alone, that the USA (to name but one example) also has its share of laws that prevent publication of state secrets.

Several errors appear to have crept into the manuscript that would only serve to increase the wariness of the reader at this point, and where a firmer editorial hand would have been welcome. The discussion of the notions of dignity and decorum in Brazil (p. 23) appears to have confused them with each other. The status of the Stare Decisis (precedent) doctrine in Korea (p. 144) is not clear. Is truth a defense against product defamation in Belgium (p. 173), and what, pray, are Belgian “Deontological Sanctions” (p. 185)? For that matter, what are the Russian courts of krai and oblast? No explanations are offered to the baffled and uninformed reader. Case law also suffers from uneven treatment. The reported ratio (legal reasoning) of the Australian Dow Jones decision (p. 78) is overly broad and not representative of the actual decision. The outcome of another famous case, where Princess Caroline of Monaco sued Germany, is not updated in the section on Germany (p. 241) although it is discussed extensively in other parts of the book. I was impressed to note that a fairly recent Canadian case was included however (pp. 45‐6).

The value of the International Libel and Privacy Handbook when all is said and done, lies not in its errors of omission, but in its ability to provide the reader with a new perspective and with new knowledge on its topic. Sometimes a book will be worth its price for one tidbit of information alone. I learned, for example, that South Africa has passed a ban on monitoring in the workplace (p. 328). I learned that the truth will not be my defense if I am sued for defamation in countries such as Germany, Italy or Spain (pp. 378‐9). And I learned that in Japan the right to privacy is based on the right to happiness (pp. 138‐9). I hope I learned correctly – the errors in the book do give one reason to pause. A “global reference” on defamation and privacy, as the book styles itself, is indeed required in this day and age. It is a tad unfortunate that the International Libel and Privacy Handbook does not fully live up to its promise.