In this feature we revisit some older posts which may still be of current interest.  This was first posted on 8 February 2010

The EU Parliament’s Committee on Legal Affairs has  been considering the cross-jurisdictional dilemmas posed by actions for defamation and privacy.  It is working towards what is known as Rome II, which will be a series of rules regarding which court and which law will apply in disputes which involve more than one jurisdiction.  The particular dilemma concerning defamation and privacy actions arises from whether particular consideration ought to be given to the jurisdiction in which the editorial decision to publish was taken (as opposed to the jurisdiction, if different, in which the resulting damage took place).

At present, for instance, following the decision of the European Court of Justice in Shevill v Presse Alliance [1995] 2 AC 218, a London-based newspaper which was published in Sweden and which defamed or breached the privacy of a Swedish resident could be sued in that jurisdiction under Swedish law (and potentially in other EU jurisdictions where the claimant was caused damage).  It is important to bear in mind that in a number of EU jurisdictions (including Sweden and France) the publication of a libel is still a criminal offence.

For understandable reasons, European media organisations believe that the applicable law ought to be that of the jurisdiction where the editorial decision to publish was made.  This is because it would be impractical for a newspaper to consider what legal risk would occur in other jurisdictions prior to making the decision to publish.

As part of its consideration of this issue, the Committee on Legal Affairs has considered the current state of the law of defamation law in this jurisdiction.  William Bennett, a specialist barrister in such matters, presented a paper to the committee which to some extent foreshadowed Lord Hoffman’s recent speech by concluding that the law was fairly balanced in England and Wales and that recent media articles to the contrary were “somewhat one-sided”.

William Bennett’s presentation can be found here.