The Scientological Defenestration of Choice-of-Law Doctrines for Publication Torts on the Internet, 15 J. Marshall J. Computer & Info. L. 361 (1997)

Two major doctrines exist for choosing which state's law applies to an interstate tort: the "lex loci deliciti" (the law of the place of the wrong) approach and the "most significant relationship" approach. In the context of the Internet, the "lex loci deliciti" approach has been criticized for its harshness. For example, it is possible for an e-mail posting to be non-actionable where written, but actionable where read. Likewise, the "most significant relationship" approach has been criticized for its indeterminacy and lack of predictability because the outcome as to the extent of liability for a publication tort on the Internet would be controlled by the highly specific circumstances of each case, rather than by precedent. As a result, some argue that traditional law is inadequate and propose a variety of new ways for dealing with the inadequacies of today's choice-of-law doctrines in Internet related cases. However, a series of recent Internet libel and copyright cases suggest that courts are quite unimpressed by the uniqueness of the Internet and are willing to apply traditional choice-of-law doctrines to those cases. The emerging pattern of such choice-of-law is one that resembles the Second Restatement's suggestion that in most multi-state publication torts, the most appropriate state law to apply is the law of the state where the plaintiff was domiciled or had its principal place of business. In contrast, two Church of Scientology cases, Religious Technology Center v. Lerma and Religious Technology Center v. F.A.C.T.Net, Inc., upset the emerging trend of choice-of-law decisions by applying the law of the state where the defendants resided. Both cases involved the Church of Scientology's efforts to maintain the secrecy of its sacred texts known as "Advanced Technology" manuals. By upsetting the predictability of choice-of-law issues, these courts disserve the very community they seek to protect. Moreover, the ambiguity injected into the Internet choice-of-law issue by these cases may invite legislative or political tinkering, a prospect that does not bode well for Internet autonomy.