Multistate Defamation, Cross-Border Torts, and Choice of Law
May 6, 2022
Multistate defamation cases have always presented difficult choice-of-law problems, but the advent of the internet has exacerbated them. Nunes v. Cable News Network, Inc is a good example on point, besides being a very interesting case on other grounds. This post presents this case, but also examines how other countries resolve conflicts in cases of cross-border defamation and other infringements of personality rights, such as invasion of privacy. In recent years, eighteen countries have enacted statutory rules for these conflicts and fourteen of them adopted the notion of giving plaintiffs the right to choose the applicable law, within certain parameters.
Nunes v. CNN
Devin Nunes, a nationally known former congressman representing a California district, sued CNN, a national news network, Nunes alleging that he was defamed by an article posted on CNN’s digital platform in New York and subsequent comments made on a CNN program also broadcast from New York. This is one of ten defamation lawsuits Nunes filed in the last three years against national media organizations and individual journalists. None of those lawsuits were filed in California (a state with strong anti-SLAPP laws), but four of them, including this one, were filed in Virginia (a state with very weak anti-SLAPP laws). This suit was transferred from a Virginia federal court to a New York federal court and, under Van Dusen, it was decided under Virginia’s choice-of-law rules.
Virginia follows the first Restatement of Conflict of Laws, which mandates the application of the law of “the place of the wrong” and defines that place generally as the place of the “last event” necessary to make an actor liable, and specifically for defamation cases as the place where the defamatory statement is “communicated.” The first Restatement does not address cases of multistate defamation, namely cases in which the defamatory material is communicated in several states, and the Virginia Supreme Court has not decided such a case. Left to its own devices, the transferee court “predicted,” as federal courts do in similar cases, that in multistate defamation cases the Virginia Supreme Court would apply the law of the state in which the plaintiff suffered “the greatest harm,” which ordinarily is the state of the plaintiff’s domicile “absent strong countervailing circumstances.” The court heldthat, under this test, California substantive law governed the case and dismissed the action because of the plaintiff’s failure to comply with the provisions of the California retraction statute.
The Second Circuit affirmed the district court’s holding and agreed with its reasoning, after rejecting the plaintiff’s renewed arguments that the “wrong” occurred in New York where the article was posted and the comments were broadcast. The Second Circuit noted that (1) the lex loci delicti rule as formulated in the first Restatement mandates the application of the law of the place of injury (not the place of conduct) as the “last event” necessary to make the actor liable, and (2) an injury does not occur, and thus the tort of defamation is not completed, until the defamatory material is viewed or heard by third parties. The court acknowledged, however, that a straightforward application of the place-of-injury rule in multistate defamation cases is “impracticable and unworkable” because, especially in cases involving the internet, a statement is “instantaneously transmitted across the country” and is “viewed or heard simultaneously in several states, implicating the law of all jurisdictions where third parties were exposed to the information.”
Rather than certifying the choice-of-law question to the Virginia Supreme Court, the Second Circuit decided to resolve the conundrum by “predicting” that the Virginia Supreme Court would apply the substantive law of “the state where the plaintiff incurred the greatest reputational injury, with a presumption that absent countervailing circumstances, a plaintiff suffers the most harm in his state of domicile.” The Second Circuit rejected the plaintiff’s and the dissenting judge’s arguments that this test was the same as the Restatement (Second)’s “most significant relationship” formula, which the Virginia Supreme Court had specifically denounced. Applying this test, the Second Circuit held that California substantive law governed this action because (1) Nunes suffered “the greatest harm in his home state of California among those constituents who were responsible for sending him to Washington, D.C., in the first place,” and (2) there were no countervailing circumstances sufficient to overcome the presumption that his greatest reputational harm occurred in his home state.
The dissenting judge agreed that the place-of-injury rule was impractical in cases of nationwide broadcasts but argued (1) that the “second-best approach” would be to apply the law of the state of conduct, which occurred in New York, and (2) that this approach would be “more faithful” to the Virginia Supreme Court’s decision to adhere to the “place of the wrong” rule and to “reject modern approaches based on domicile.” The dissenting judge also argued that, even under the majority’s approach, the plaintiff’s greatest reputational injury occurred in Washington, D.C., because the defamatory article focused on the plaintiff’s role as Chair of the House Intelligence Committee.
The Relevant Contacts and Policies in Multistate Defamation Cases
Nunes v. CNN is typical of many multistate defamation cases. By definition, these cases present the cross-border scenario (as do most other cases of infringement of personality rights) in that the injurious conduct and the resulting injury or injuries occur in different states. Thus, both the conduct and the injury are relevant contacts in resolving these conflicts. Any system that (like the first Restatement) relies on only one of these contacts in resolving these conflicts is presumptively deficient.
Moreover, additional contacts, such as the parties’ domiciles and their relationship, if any, are also relevant. Section 150 of the Restatement (Second) requires consideration of all relevant contacts (and § 6 policies) when it calls for the application of the law of the state of the “most significant relationship,” albeit with a presumption in favor of the law of the plaintiff’s domicile.
Ideally, a complete choice-of-law approach or rule for multistate defamation cases should consider not only all relevant contacts, but also the relevant policies of each contact state on the competing values of freedom of speech and protection of privacy. Obviously, this is easier said than done. Most legislatures shy away from such complexities. Nevertheless, as the rules described in the next section illustrate, some contemporary legislatures have stopped pretending that their rules should be as value-neutral as the lex loci delicti rule purported to be.
Foreign Choice-of-Law Rules for Multistate Defamation Cases
In recent years, seventeen countries and all six Australian states have enacted choice-of-law rules dealing specifically with conflicts arising from infringement of personality rights, including defamation. In addition, Norway and Serbia have produced draft codifications, which are pending before the parliaments of those countries. Fourteen of these codifications give the victim two to four choices of the applicable law. Table 1, below, depicts these choices. The remaining codifications (Australia, China, Japan, Norway, and Taiwan) do not give the victim a choice. All of these rules, as well as all the other rules mentioned in this post, are discussed in Symeonides, Cross-Border Infringement of Personality Rights via the Internet (2021).
Table 1. Choice-of-law rules for injuries to rights of personality
|Lex fori||V’s ctr.||V’s dom.||I||C||D’s dom.|
The abbreviations at the top of the last five column are as follows: the victim’s “center of interest” (an EU term), the victim’s domicile (or habitual residence), the state of injury (“I”), the state of conduct (“C”), and the defendant’s home state (domicile, habitual residence, or principal place of business). The asterisk indicates that the application of the law of the state listed in that column is subject to foreseeability proviso.
In 2019, the Institut de Droit International (IDI) adopted a Resolution entitled “Injuries to Rights of Personality Through the Use of the Internet: Jurisdiction, Applicable Law and Recognition of Foreign Judgments.” This Resolution, which consists of six detailed articles, will be presented in the future. Suffice it to say that the Resolution also espouses the idea of giving plaintiffs a choice on the applicable law, albeit in a more complex way that depends on where the action is filed. Moreover, in one category of cases, the Resolution also gives a choice to the defendant. The Resolution also provides that the state of “the most extensive injurious effects” is a permissible jurisdictional basis (subject to exceptions), as well as a basis for choosing that state’s law.
In the European Union, the Rome II Regulation of 2007 expressly excludes from its scope non-contractual obligations arising out of “violations of privacy and rights relating to personality, including defamation.” The exclusion was thought necessary when it became clear that the opposing views on this subject were too strongly held to allow a reasonable compromise. Media organizations strongly opposed the choice-of-law rule proposed in the Commission’s preliminary draft, which used the victim’s habitual residence as the primary connecting factor. In response, the Commission changed the connecting factor to “the place in which the damage took place,” subject to a “fundamental rights” exception but this change did not reduce the publishers’ opposition.
In 2012, the Parliament adopted a resolution requesting the Commission to submit a proposal that would add to Rome II a choice-of-law rule that would apply the law of the country in which “the most significant element or elements of the loss or damage occur or are likely to occur.” That country “shall be deemed to be” the country “to which the publication or broadcasting service is principally directed” as determined by “the language of the publication or broadcast or by sales or audience size in a given country.” The proposal provided two exceptions for defendants. First, if the defendant could not reasonably have foreseen the “substantial consequences of his or her act occurring in the [aforementioned] country,” then the law of the defendant’s home state should govern. Second, if the country to which the publication is “principally directed” is “not apparent,” then the law of the country in which the “editorial control is exercised” should govern.
As far as can be ascertained, the Commission has not taken any action on this proposal. Thus, for the time being, each EU Member State applies its own choice-of-law rules to multistate defamation cases.
Choice-of-Law Rules for Cross-Border Torts in General
The pro-plaintiff bend that characterizes the statutory rules listed above is also present in other rules that apply to cross-border torts in general. Following a principle known as favor laesi (favoring the injured), many recent codifications directly authorize the application of the law of either the state of conduct or the state of injury, whichever favors the victim. They do so by either choosing the more favorable of the two laws or allowing the tort victim to choose between them. Specifically:
(1) Ten codifications contain an express rule applicable to all cross-border torts, which instructs the court to choose the law that is more favorable to the victim.
(2) Nine codifications directly authorize the victim to choose between these laws.
(3) Eight codifications allow but do not require the court to apply the more favorable law.
(4) Twenty-five other codifications, including Rome II, which is applicable in twenty-six EU countries, contain express favor laesi rules applicable only to certain cross-border torts, such as environmental torts or products liability.
Obviously, Mr. Nunes would have fared much better under the above rules. For his political opponents and others, this may be a reason to criticize these rules. For what it may be worth, my own view is that giving victims of cross-border torts a choice between the laws of the state of conduct and the state of injury is a good idea, but only if the choice of the law of the state of injury is subject to an objective foreseeability proviso. I adopted this notion in drafting the Oregon codification and the IDI Resolution mentioned earlier, and have supported the Reporters’ adoption of the same idea in the draft Restatement (Third) of Conflicts.
However, as I explained in my writings, my endorsement of this idea is based not on victim sympathy (the favor laesi principle) but on what I believe is an appropriate accommodation of the involved states’ interests in the two principal patterns of cases. Specifically:
(1) When the state of conduct has a pro-victim law and the state of injury has a pro-defendant law (Pattern 1), the result is a false conflict in which only the state of conduct has an interest in applying its law. Because the victim will choose that law, the result will be consistent with the way most American courts would resolve this false conflict.
(2) When the state of conduct has a pro-defendant law and the state of injury has a pro-victim law (Pattern 2), the result is a true conflict in which each state has an interest in applying its law. On balance, the victim should be allowed to choose the law of the state of injury, but only upon showing that the occurrence of the injury in that state was objectively foreseeable. This condition tips the scales in favor of applying the law of the state that experiences the impact of the injurious out-of-state conduct and provides a good retort to any argument of unfair surprise asserted by the defendant.
Thus, victim choice is simply an efficient vehicle for appropriately resolving these conflicts—and doing so in a way that is remarkably consistent with the results of the case law, but without having to reinvent the wheel in each case or unnecessarily prolonging litigation.