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Focus on defamation: a new Council of Europe study draws attention to dangers of ‘forum shopping’ in defamation cases

Strasbourg 20 September 2019
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Focus on defamation: a new Council of Europe study draws attention to dangers of ‘forum shopping’ in defamation cases

What we say online can generate enormous impacts across the globe. Owing to the growing inter-connectedness of modern societies, a defamatory statement published online in one state can be accessed instantly and nearly everywhere. For the courts, this creates a challenge: an allegedly defamatory statement can be considered to have produced damage in several states, which may result in complex international legal disputes on the most appropriate jurisdiction to deal with the case.

The Council of Europe is publishing a new study on forms of liability and jurisdictional issues in the application of civil and administrative defamation laws in Council of Europe member states. The study, prepared under the remit of the Inter-governmental Steering Committee on Media and Information Society, provides a closer look at the phenomenon of forum shopping, which can have an important chilling effect on freedom of expression.

The term forum shopping refers to the practice of bringing defamation lawsuits before courts where it is easiest to sue and where the likelihood of a favourable outcome is the highest, by playing on any possible connection with the court’s jurisdiction. This creates an environment where virtually any court in any country may be chosen to launch a libel suit. Defendants (whether individuals or legal entities, such as media) therefore face heightened levels of unpredictability, which creates a chilling effect on freedom of expression. As forum shopping has become more frequent, and its forms more creative in recent years, the phenomenon presents an important concern.

Most Council of Europe member states are taking measures to mitigate negative implications for the freedom of expression. The new study identifies 15 good practices that are recommended for wider use across Council of Europe member states.