Owing  to  the  growing  inter-connectedness  of  modern  soci-eties, content published online in one state can be accessed instantly and across the globe, possibly generating enormous impact.  An  allegedly  defamatory  statement  can  therefore  be  considered  to  have  produced  damage  in  several  states,  which  may  result  in  complex  international  legal  disputes.  Indeed, the occurrence of forum shopping has become more frequent  as  well  as  more  creative  in  recent  years,  which  can  negatively impact on freedom of expression.

This  study  aims  to  provide  a  better  understanding  of  the  phenomenon  of  forum  shopping  in  contemporary  defama-tion cases, and to distinguish factors that may be conducive to  it,  with  a  view  to  identifying  existing  or  emerging  good  practices.

Study on forms of liability and jurisdictional issues in the application of civil and administrative defamation laws in Council of Europe member states prepared by the Expert Committee on human rights dimensions of automated data processing and different forms of artificial intelligence (MSI-AUT)

In light of the Council of Europe’s previous commitments, the Committee of Ministers adopted on 4 July 2012 its Declaration on the Desirability of International Standards dealing with Forum Shopping in respect of Defamation (“Libel Tourism”). In the Declaration, the Committee of Ministers of the Council of Europe stated that “libel tourism is a form of “forum shopping” when a complainant files a complaint with the court thought most likely to provide a favourable judgment (including in default cases) and where it is easy to sue”. It has been stressed that the prevention of libel tourism should be part of the reform of the legislation on libel/defamation in member states in order to strike a fair balance between the competing rights of freedom of expression (Article 10 ECHR) and the right to respect for private and family life (Article 8 ECHR). It has also been underlined that “libel tourism” is a serious threat to freedom of expression and information.

As a reaction to the threat posed by the “libel tourism” phenomenon, further work is foreseen on studying liability and jurisdictional issues in the application of national defamation laws in Council of Europe member states, possibly laying a basis for a standard setting instrument on this issue.

The Parliamentary Assembly of the Council of Europe (PACE) further affirmed its determination to stand for the decriminalisation of defamation in its Resolution 1577 Towards decriminalisation of defamation (2007) and the corresponding Recommendation 1814 (2007).

PACE called on the Council of Europe’s member states to abolish prison sentences for defamation without delay, to guarantee that there is no misuse of criminal prosecution for defamation and to safeguard the independence of prosecutors in these cases, to define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law, and to ensure that civil law provides effective protection of the dignity of persons affected by defamation. Secondly, PACE called on the member states to set reasonable and proportionate maximum amounts for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk, and to provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury.

In Resolution no. 2035 on the Protection of the safety of journalists and of media freedom in Europe (2015) and the follow-up Resolution no. 2141 on Attacks against journalists and media freedom in Europe (2017) PACE paid close attention to steps already taken and steps that still need to be taken within the members states towards decriminalisation of defamation and compliance with the ECHR standards.

The "Examination of the alignment of the laws on defamation with the relevant case-law of the European Court of Human Rights, including the issue of decriminalisation of defamation" (2005) aimed to highlight the main issues and the benchmark principles that can be drawn from the ECtHR case-law regarding defamation proceedings and freedom of expression. The study also took stock of the state of defamation laws in the member states of the Council of Europe and showed that the majority of states still criminalise defamation.

As a follow-up, the “Study on the alignment of laws and practices concerning defamation with the relevant caselaw of the European Court of Human Rights on freedom of expression, particularly with regard to the principle of proportionality” (2012) was prepared. This study built upon the previous work and focused on the principle of proportionality in light of the most recent case-law of the ECtHR.

The analysis of the ECtHR case-law in respect of defamation was taken a step further with the recent Council of Europe publication of the study on “Freedom of expression and defamation. A study of the case-law of the European Court of Human Rights” (2016) by Tarlach McGonagle in collaboration with Marie McGonagle and Ronan Ó Fathaigh. This study focuses on issues that the ECtHR has identified with regard to the definition of defamation, type and proportionality of sanctions, and the available defences in defamation cases. The study also addressed the issue of the potential chilling effect that overprotective defamation laws might have on freedom of expression.