Internet Libel
From Ad IDEM / CMLA
Internet Libel The ‘get-message’ From London.
By Mark Stephens
London has developed the reputation as the libel capital of the globe, with crooks, brigands and minor businessmen & celebrities jetting-in to launder their reputations before a Court which finds for claimants in about 90% of cases.
Notoriously, the media bears the burden of proving truth, and is mulcted in damages for failing in a plea of truth. There is no public figure defence or Sullivan standard to be applied. Little or no discovery, and certainly no depositions. In fact the libel laws of Britain fall short of US constitutional standards protecting speech on no fewer than 17 different grounds Vladimir Telnikoff v. Vladimir Matusevitch [November 12, 1997] Maryland Court of Appeals.
The rule which permits wealthy forum-shoppers to come to sue for verdicts that they would be unlikely to obtain at home, dates to well before the internet era, in 1849 the Duke of Brunswick dispatched his illiterate manservant to a newspaper office to obtain a back copy published 17 years earlier. This single publication was considered sufficient to found libel jurisdiction sufficient to defeat the statute of limitations.
From this anachronistic case Duke of Brunswick v Harmer [1849] 14 Q.B. 185 springs a much venerated, if ridiculous, principle that a single publication will be an actionable tort in the UK. The principle of Victorian law from an era when class was all important was applied and followed, aptly enough in the Australian State of Victoria, in Gutnik v Dow Jones [2002] HCA 56 and has now been adopted with alacrity by all Commonwealth jurisdictions.
The essential – and oft missed - difference between English and US libel law is that each print copy sold, each internet hit, constitutes the publication of a separate tort, following the rule in the Duke of Brunswick’s case. Not for us the single publication rule; rather a multiple of wrongs for each internet hit. Technically, an English internet libel is a bundle of torts. The number of torts in the jurisdiction will equal the number of hits within the jurisdiction.
The global reach of the internet invites the courts in London to accept jurisdiction in almost any case. Only Lord Hoffman (in Berezovsky v Forbes [1999] EMLR 735) has expressed cautionary words about the increasing tendency for the British Courts to take foreign disputes to themselves as some kind of internet Globo-cop.
It is also important to bear in mind, as Gray J stated in l Amoudi v Brisard [2006] EWHC 1062 (QB) at §37, that “under English law, a claimant in a libel action on an Internet publication is entitled to rely on a presumption of law that there has been substantial publication.” There is no difference between print and online articles. A claimant merely has to prove that the article has been read once by a third party.
The higher courts have taken the first tentative steps at circumscribing the wilder tendencies of the libel judges in arrogating the world’s libels.
Libel actions are, by their very nature, apt to consume disproportionate amounts of Court resources and to impinge on the right of free speech. The higher courts are increasingly astute to strike them out as an abuse of process when claimants cannot show that they raise a substantial issue that ought to be tried and/or tried in this jurisdiction, or that any trial will effectively remedy a serious wrong that has been committed here.
So far as foreign internet sites are concerned, comity has long been recognised as requiring the most anxious scrutiny of the local importance of a case before editors and journalists and foreign companies are hauled into this jurisdiction, especially at the behest of a foreign, often forum shopping, claimant.
This Dreyfus Brothers principle was endorsed by the Law Lords in Spiliada Maritime Corporation v. Cansulex Ltd [1987] A.C. 460 and applied to deny a foreign claimant any right to sue here for a libel contained in a Parisian and a Belgian newspaper whose sales in this country numbered in the hundreds: see Kroch v. Rossell (1937) 1 All E.R. 725, a case recently approved by the House of Lords in Berezovsky v Michaels' '[2001] 1 WLR 1004.
The response by claimant lawyers, anxious to keep their business, and their clients before the English courts, has been to construct a pleaded artifice of suing only in relation to the torts within this jurisdiction and only in relation to the claimants’ English reputation. The upshot in any forum non conveniens application is that the courts are prone to accept that the court best placed to assess the damage to a claimant’s “English reputation” (sic) is the court in London.
Only the most egregious examples of forum shopping are now struck out.
In Dow Jones v Harrods the 2nd Cir determined that declaratory relief intended to stop forum shopping could not be used as a device against the libel laws of England.
Increasingly, the libel laws of England are being used to obtain remedies to chill speech.
In Al Amoudi v Brisard the defendant had specifically put into his publishing contract that his book should not be published in the UK only to find that 20 some books were served here via Amazon. The court held that it was foreseeable that the books would be published within the jurisdiction in this way and therefore poor Monsieur Brisard was held responsible for the English tort he had sought so hard to avoid.
In the case of Dr Rachel Ehrenfeld she choose, owing to her limited financial circumstances, not to appear in the English courts – her refusal to submit to the jurisdiction of the English Courts caused such irritation that the court made a declaration of falsity: a court order, made in her absence, that the contents of her book were false – presumably including the name of the author?
The failure of English jurisprudence to recognise that the internet needs new rules and the ready acceptance of the Duke of Brunswick/Gutnik approach means that those with the wealth to bring proceedings in London can harass those that write about them in foreign courts. Often in relation to material which is libel-proof in their home jurisdiction. Hence the most recent trend of Gulf billionaires flying in on the Gulfstream’s and Bombardier’s to sue US publishers in London in relation to internet publications.
Many of these cases have been technical and focussed on the court making an assessment of the number of hits from within the jurisdiction. This inexact science ignores the possibility of international readers having their lap top with them in a country other than England. It usually involves looking at where subscribers are registered or where servers appear to have received requests for “get messages” from. When sued in London, be prepared for long and careful analysis of the technical side of your business.
This still leaves unanswered the challenge of, confidence tricksters, arms dealers, financiers of terrorism and those involved in trans-border criminality and other wrongdoing being protected from the closest forms of scrutiny by a few internet hits within the jurisdiction of the English courts.
Mark Stephens of Finers Stephens Innocent LLP in London.
