Despite the common elements of defamation shared among states, many key variations in defamation law exist.
In a defamation action, a plaintiff may sue (i.e., personal jurisdiction is proper) in any state in which the plaintiff can prove that someone received the defamatory message.
The Restatement (Second) of Conflict of Laws Approach for Defamation
In multistate defamation actions, where the defamatory statement is contained "in any one edition of a book or newspaper, or any one broadcast over radio or television, exhibition of a motion picture, or similar aggregate communication[,]" (40) there is a strong presumption that the state with the most significant relationship will be "the state where the person was domiciled at the time, if the matter complained of was published in that state." (41) In multistate defamation actions involving corporations or other legal persons, "the state of most significant relationship will usually be the state where the corporation, or other legal person, had its principal place of business at the time, if the matter complained of was published in that state." (42)
The Restatement (Second) also provides a list of relevant contacts to be taken into account when applying the factors listed in section 6, which include: "(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered." (52) As far as the law of defamation is concerned, "[t]he place of the plaintiff's domicil, or on occasion his principal place of business, is the single most important contact for determining the state of the applicable law." (53) These considerations serve to ensure that a court will not apply the law of a state with little interest in the case.
These proposals for changing choice-of-law principles for cyber-defamation rely on the perceived notion that defamation in cyberspace is somehow different and, therefore, cyber-defamation needs different choice-of-law rules.
Defamation laws in State A, B, and C vastly differ.
As is typical in most critics' analyses, Faucher's analysis of the Restatement (Second) as applied to his cyber-hypothetical identifies nothing unique about the medium of cyberspace that makes the Restatement (Second) any more "long, difficult, and murky" to apply when compared to defamation in real-space.
Consider the following variation on Faucher's cyber-hypothetical involving a defamation dispute in real-space: A is the publisher of America Today, a nationally read newspaper located in State A.
In order to answer whether cyberspace offers something unique to choice-of-law doctrines for defamation, making section 6 principles "vague and of little direction" as Faucher suggests, it is imperative to analyze section 6 principles in cyberspace versus section 6 principles in real-space.
(92) Such principles may be of greater importance in the tort law area of defamation, however.