Online Publication Claims: Foreign defendants and section 9 of the Defamation Act 2013 – Darryl Hutcheon

7 11 2017

For many years there was a perception that the private international law rules applied by English courts allowed for so-called “libel tourism”, meaning the practice of opportunistic litigants (often with very limited connections to England and Wales) using English courts to bring defamation claims with much stronger connections to other jurisdictions. In enacting section 9 of the Defamation Act 2013 Parliament sought to address this concern by making it much harder for English courts to hear those kinds of claims.

Section 9 provides that:

  • The section applies to an action for defamation against a person who is not domiciled (a) in the United Kingdom; (b) in another Member State; or (c) in a state which is for the time being a contracting party to the Lugano Convention.
  • A court does not have jurisdiction to hear and determine an action to which the section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.

The section does not apply to any claims where jurisdiction has been taken under the Regulation or the Lugano Convention, as in those cases the defendant can be sued “as of right” – wherever the claimant is situated – under the rule in C-281/02 Owusu v Jackson [2005] QB 801.

Where section 9 applies it does not matter whether the claimant has served the claim form on the defendant in the jurisdiction (because the defendant is present in the jurisdiction) or out of the jurisdiction (having received permission to do so applying rules 6.36 and 6.37 of the Civil Procedure Rules).

The effect of section 9 is that where a claimant brings a defamation claim relating to a statement published online and read in England (by a relatively small number of people) and read in, say, the USA (by a much larger number of people), the English court will usually not have jurisdiction to hear any of the claim (including insofar as it relates to the publication in England). This overrides the orthodox position at common law (as re-affirmed by the House of Lords in Berezovsky v Michaels [2000] 1 WLR 1004), to the effect that each actionable publication of a defamatory statement constitutes a separate tort which must be considered separately when deciding if the English court has jurisdiction to hear a claim about it.

The Explanatory Notes to the Act state (at para 66) that:

 It is intended that (section 9) will overcome the problem of courts readily accepting jurisdiction simply because a claimant frames their claim so as to focus on damage which has occurred in this jurisdiction only. This would mean that, for example, if a statement was published 100,000 times in Australia and only 5,000 times in England that would be a good basis on which to conclude that the most appropriate jurisdiction in which to bring an action in respect of the statement was Australia rather than England. There will however be a range of factors which the court may wish to take into account including, for example, the amount of damage to the claimant’s reputation in this jurisdiction compared to elsewhere, the extent to which the publication was targeted at a readership in this jurisdiction compared to elsewhere, and whether there is reason to think that the claimant would not receive a fair hearing elsewhere.

 This passage suggests that the analysis envisaged is very similar to a traditional “forum non conveniens” analysis, including the “stage 2” question of whether justice can be done abroad.

Section 9 was considered by Sir Michael Tugendhat in Ahuja v Politika Novine I Magazini D.O.O [2015] EWHC 3380 (QB). It was suggested that the claimant should produce the fullest reasonably available evidence as to publication in all places in which the words complained of have been published ([30]). This creates a heavy burden on claimants, who will presumably be expected to produce worldwide statistics on publication, not only of the particular article / statement in question, but of ones like it (in light of section 9(3)). The court also accepted that questions such as the convenience of witnesses and the relative expense of suing in different jurisdictions (which are relevant to the question of forum non conveniens) would be relevant in this context too ([70]).

 While the decision in Ahuja did not explicitly address the relationship between section 9 and the general forum non conveniens test, one difference seems to be that the burden of proof will now always be on the claimant (unlike where a defendant seeks a stay pleading forum non conveniens).

In conclusion, section 9 only narrows English courts’ jurisdiction over defamation claims relating to statements published online and viewed all over the world, when they are brought against non-EU domiciled defendants. While there has not been a great deal of case-law on the application of section 9 to date, the early signs are that courts will apply it strictly: see Ahuja and the very recent (brief and obiter) analysis of section 9 by Nicklin J in Huda v Wells and ors [2017] EWHC 2553 (QB) at [84]-[85].

Darryl Hutcheon is a member of Matrix Chambers and an author of Online Publication Claims: a Practical Guide. 

This is an edited extract from Chapter 4 of the book which will be published on 9 November 2017.

 


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