In 2012 the Irish Courts found themselves tangled in a jurisdictional web. The case of Coleman v MGN ( IESC 20) started out somewhat like this: Mr Coleman woke up one day in 2003, only to discover that his face was portrayed in the Daily Mirror (UK) next to an article about hooligans and drunkards. Distraught by the implications of the publication, he sought damages inter alia for defamation, negligence and breach of contract.
Nine years later, the Supreme Court decided it lacked jurisdiction to decide in his favour so far as the printed material was concerned, and accepted that a) it did not circulate in Ireland, and b) there was no proof of actual damage to his reputation by the said material.
But Mr Coleman made a very valid argument, one that only the High Court judge was willing to accept: the news can easily travel by word of mouth.
When internet publication of the said issue was brought forward, the Supreme Court completely disregarded the archival web edition of the Daily Mirror; access to it was only by subscription. In addition to that, it demanded evidence of the public online edition from 2003 – which could not be furnished.
A year and a half later CSI Manufacturing Ltd, an Irish company, found itself in the same position as Mr Coleman; it decided to follow the lines of the Brussels Convention and ‘close co-operation’, and started legal proceedings in Ireland against the UK branch of Dun & Bradstreet. DnB.co.uk is a web site that offers reports on the creditworthiness of companies to the D&B’s contracting parties. Those reports are restricted to registered members only. Once again, on appeal, the judgment was ‘lack of jurisdiction as a result of membership by subscription’ ( IEHC 547). Following the lines of Coleman, CSI was required to prove access to Ireland that resulted in spoiling its reputation: only one company had accessed their credit report, and that was based in Northern Ireland.
It sounds reasonable that a claim for damages cannot stand where the only third party involved is somewhere out of the jurisdiction, has shown a lack of interest and it is but one. On the other hand though, could it be that Charleton J of the High Court was right in relation the word of mouth in Mr Coleman’s case? If only one company accessed that report and that company was not even in the Republic of Ireland, then how did CSI learn about its contents? And if CSI could learn about the contents of the said report from Ireland, what is there to stop any other Irish company from acquiring the same information?
Furthermore, no attention was ever paid to the fact that internet content has a variety of ways of reproducing itself, either voluntarily by archiving or backing up, or incidentally by bots and spiders.. or even the mere ‘save page’ the end user can do from most devices.
Indeed, here is a random copy of the Daily Mirror on 19th March, 2003.
This brings up the issue of potential or future defamation; if one copy of the ‘restricted content’ is kept somewhere, what is to stop it from surfacing at any moment in time, in any place? The https protocol can preclude search engines, spiders and bots from indexing a page and its contents, but it will not stop the end user from saving or reproducing anything. Knowing the ability of internet users to save pages for later access and the ease with which information is shared nowadays (with a mere click of a button), is it not highly anticipated as a ‘probable’ result (Speight v Gosnay (CA 1891)) or ‘reasonably foreseeable’ (Ss.6(4)(b) Defamation Act, 2009) of an internet publication, albeit a restricted one?
Ss.6(4)(a) of the Defamation Act, 2009 states that a publication to a second person, that was not intended for them, does not constitute publication in this jurisdiction. Taking solely that into account then it is reasonable to say that a publication restricted to members is only intended for the eyes of those members. That seems to be the reasoning behind both Coleman and CSI – geographical restriction.
In CSI, in particular, the High Court considered both the recent Martinez/eDate and the older Shevill v Presse Alliance cases, whose joined outcome was a wide jurisdictional selection for the plaintiff by ‘centre of interest’ with regards to location, or alternatively, either the State in which the publisher is established or the State in which the damage took place. And all of these grounds were disallowed with one swoop of ‘content widely unavailable’.
Taking into account that S6(4) of the Defamation Act, 2009 is read cumulatively (meaning the publisher must both not intend for the other party to make themselves aware of the publication and not foresee the probability of such an event), one would have to wonder if the reasoning of the Courts is legally sound, or if this is a case of ‘bad precedent’ that cannot allow subsequent cases to be decided on their merits.
Restricted content has no real barriers on the internet. It is like a newspaper I subscribe to, that I decided to lend my neighbour. The repercussions might not be actionable in contract due to privity, but they are quite actionable in tort due to foresight.
I strongly believe we need to change that point of view.