The Law of Defamation and the Internet

Update 7

Regie National des Usines Renault SA v Zhang [2002] HCA 10 (High Court of Australia, 14 March 2002) (‘Zhang’s case’)

Australian High Court decision abolishing the double actionability test for choice of law in cases involving foreign torts.

This landmark decision has the effect of abolishing, in Australia, the traditional common law double actionability choice of law test in cases involving torts committed outside Australia. A copy of the decision can be found by following this link.

The double actionability test, and its application to defamation cases with foreign elements, are discussed in paras 25.03–25.28 of The Law of Defamation and the Internet. Those paragraphs continue to state the choice of law principles which apply in the United Kingdom to defamation cases concerning material published outside the United Kingdom.

The Facts

The respondent (‘Zhang’) brought proceedings in the Supreme Court of New South Wales to recover damages he sustained in New Caledonia, a French colony in the South Pacific, while driving a vehicle manufactured in France by the appellants (‘the Renault companies’). Zhang travelled to New Caledonia in order to fulfil an Australian government requirement that applicants for permanent residency lodge their applications from a place outside Australia. The Renault companies had sought to stay the New South Wales proceedings on the ground that New South Wales was an inappropriate forum for the trial of the action.

The Decision

By a 6-1 majority (Callinan J dissenting), the High Court held that the New South Wales Supreme Court had jurisdiction to hear and determine the proceeding, and that in doing so, the law governing liability was that of France. That law applied both in New Caledonia, where Zhang suffered his injuries, and in France, where the vehicle was designed and manufactured.

The majority judges held that the double actionability choice of law test, which has its genesis in Phillips v Eyre (1870) LR 6 QB 1, no longer has any place in Australian law. In farewelling that test, Kirby J observed that it was ‘a rule inappropriate to a time of global and regional dealings, technological advances that increase international conflictual situations and attitudinal changes that reject, or at least reduce, xenophobic opinions about the worth and applicability of the law of other jurisdictions.’

The decision in Zhang’s case brings the Australian choice of law test for torts committed outside Australia into line with the choice of law test for intra-Australian torts established in John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625. That case is discussed in The Law of Defamation and the Internet, paras 25.36–25.45. In short, John Pfeiffer Pty Ltd v Rogerson established the lex loci delicti (the law of the place of the tort) as the governing law in relation to all torts occurring in Australia which have an interstate element.

The effect of the decision in Zhang’s case is that the lex loci delicti will also be the governing law in Australia in all cases involving torts committed outside Australia.

Consistently with John Pfeiffer Pty Ltd v Rogerson, the Court held in Zhang’s case that a ‘flexibility’ exception of the kind which was applied in decisions such as Boys v Chaplin [1971] AC 356 and Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190 (see The Law of Defamation and the Internet, paras 25.11–25.13) will not be available in Australia in cases involving foreign torts. The Court recognised, however, that Australian courts might permanently stay proceedings in cases where it would be contrary to public policy to give effect to the lex loci delicti.

The Court reserved for future consideration whether questions about the kinds of damage, or amount of damages that may be recovered in places outside Australia should be treated as substantive issues governed by the lex loci delicti, or as procedural issues governed by the les fori (the law of the forum). John Pfeiffer Pty Ltd v Rogerson is authority for the proposition that, within Australia, all such questions are substantive, rather than procedural: see The Law of Defamation and the Internet, para 25.39.

The existing authorities on this latter point are to the effect that the availability of heads of damages, at least, is a substantive question: see eg Boys v Chaplin [1971] AC 356, 379, 384–5, 393; Stevens v Head (1993) 176 CLR 433, 459–460. The amount of damages appears to be a procedural matter governed by the lex fori in England: Boys v Chaplin [1971] AC 356, 379, 384–5, 393. The position was the same in Australia until John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625, which held that questions about the amount of damages that might be recovered in the various Australian States and Territories were to be treated by Australian courts as substantive issues, governed by the lex loci delicti. Whether the High Court would extend that position to questions about the amount of damages that might be recovered in foreign countries, or adhere to the English position, is left unresolved by Zhang’s case.

Application to Defamation Cases and the Internet

For the purposes of Anglo-Australian defamation law, material is published at the place or places where it is read, heard or seen.

While the adoption of an inflexible lex loci delicti test greatly simplifies the Australian choice of law rules for torts committed outside Australia, it will not have such a significant effect in defamation actions. Where defamatory material is published to a global audience via the Internet, for example, and a plaintiff seeks to recover damages in an Australian court in respect of the worldwide publication of that material, the court will potentially have to consider the defamation laws of each place in which the material has been read, heard or seen. Furthermore, a defendant seeking to take advantage of defences available in places outside Australia will have to plead and prove those defences, a matter which is likely to be cumbersome and costly. The proof of foreign law is discussed in paras 25.47–25.54 of The Law of Defamation and the Internet.

The circumstances in which an Australian court would be justified in permanently staying defamation proceedings in respect of publications occurring outside Australia on public policy grounds are not at all clear, and little guidance is given in the judgments in Zhang’s case.

Also unresolved is whether the amount of damages that may be recovered in respect of defamatory material published outside Australia is a substantive question, and therefore governed by the lex loci delicti, or a procedural question, and therefore governed by the lex fori.

The implications of the adoption of an inflexible lex loci delicti test for defamation actions are discussed further in the author’s article, ‘Choice of Law in Defamation after John Pfeiffer Pty Ltd v Rogerson’ (2001) 6 Media and Arts Law Review 171.

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