Notice of foreign legal obligations

Online publications are often about people, and as it is perhaps human nature to find greater pleasure in writing and reading scandalous stories reflecting upon the wickedness of one's fellow men than about the Mother Teresas of this world, defamatory material abounds in cyberspace. Furthermore, given that the publishers of such stories, their victims and their readership are more often than not located in different States, a relatively substantial body of transnational defamation cases has built up. Perhaps by now not surprisingly, in these cases courts have struggled with the issue of how to accommodate transnational defamatory publications within the parameters of national defamation law – parallel to those discussions which have taken place in trademark law, consumer contract law and in the various areas of public or criminal law. Bar minor variations, the common themes running through these areas are undeniable. Again, in online defamation cases there is a strong judicial endorsement of the country-of-destination approach despite the protests of the online publishing community and many persuasive arguments to the contrary. Again, there is a tension between the moderate country-of-destination approach (concerned with the protection of online publishers from overregulation) and the outright country-of-destination approach (concerned with the protection of online ‘consumers’ from injurious foreign content). In this chapter, the country-of-destination approach moves centre-stage. The chapter discusses what is identified as the main challenge to the country-of-destination approach, namely, notice: the ability of online publishers to foresee and know their foreign legal obligations.