I hold an LLM in Commercial law with Distinction and also have an LLB degree. I enjoy carrying out legal research and writing. I particularly enjoy research in comparative law and completed my dissertation for my masters with a comparative study of Letters of Credits. My research interests cover a wide range of legal subjects such as legal methods, law of contract, law of tort, commercial law, international law, business crime, international sale of goods, law of international trade, electronic commercial law, information technology law and human rights amongst others. I am about to begin my PHD in law and look forward to an exciting opportunity to undertake more research.
Advice for a complainant deciding in which country to sue for internet defamation: comparative study of the United Kingdom and United States
Internet defamation litigation differs from traditional libel litigation as unique challenges such as jurisdiction issues, anonymity of the author responsible for the defamation and the cost of successfully tracking down the defendant, face a claimant seeking a remedy for destroyed goodwill of a business or damage to reputation1. This work provides a guide for a complainant deciding which country to bring an action for ‘international’2 Internet defamation by comparing the libel law in the United Kingdom (UK), which is generally regarded as the most claimant-friendly in the world3 with that of the United States (US) which is aimed at protecting free speech.4
The first issue that a complainant needs to consider is the position in both countries in relation to accepting jurisdiction for Internet defamation. For defamatory material published on the Internet, the acts of writing, disseminating and reading the statement in issue and the main damage to the defamed individual’s reputation may well take place in different jurisdictions5 due to the global reach of the Internet.6 Thus, with the Internet, the initial place of publication becomes a matter of little practical significance7 and complainants may engage in ‘libel tourism’.8 The inevitable question then is: which country would be an appropriate forum to bring a claim and would the courts of only one country have jurisdiction in respect of an internet defamation claim or does a separate cause of action arise in every country where the defamatory statement can be read?9
Under UK law, publication takes place where the statement is read and comprehended, which, for the Internet translates into the place where it is downloaded.10 If a claimant can establish that there has been a substantial publication within the jurisdiction of the courts of England and Wales he may be able to bring libel proceedings in the UK.11 Furthermore, under UK law every repetition of a defamatory statement is a fresh publication that gives rise to a fresh cause of action against each successive publisher.12 This ‘multiple publication’ rule which dates back to the 19th-century case of Duke of Brunswick v Harmer,13 has now been applied to publication on the Internet.14 The implication is that once a defamatory material is accessed by an Internet browser in the UK, there has been publication here which gives rise to a fresh course of action. The courts in the US, by way of contrast, have departed from this position15 and now apply the ‘single publication rule’.16
The impact of the multiple publication rule can be seen in the areas of choice of law, jurisdiction and forum non conveniens.17 In relation to choice of law, it makes it possible for the English Courts to have jurisdiction with regard to the publication in England but not the publication in other countries.18 If the claimant, however, limits his claim to a remedy for publication in England, foreign publication, even if much more significant than English publication, will be ignored and English law will be applied.19 This might prove beneficial to a claimant and could therefore make the English courts a preferred venue for litigation.
As regards jurisdiction, it has been held20 that a claimant domiciled in the EU has a right to choose either the court of the place where the publisher is established,21 or the courts of the places where the publication was distributed in each contracting state where the reputation of the person is harmed or injured22 and such actions cannot be stayed on forum grounds23. Essentially, place of publication is a deciding factor for jurisdiction under EU law. Where the claimant is not from a contracting EU state, English law applies, which in libel cases gives jurisdiction only with regard to items published in England.24 Although this is subject to the doctrine of forum non conveniens,25 the recent decisions of the courts in regard to this doctrine,26 show that the protection it affords to publishers who find themselves sued in England over ‘international’ libels has dwindled in recent years.27 So in application, the position is almost the same both for a person domiciled in an EU state and any other party. The UK position may be contrasted with the position in the US as even where a publication has been accessed on line in a particular state, there is the additional requirement of ‘targeting’, which has to be satisfied before the US courts will assume jurisdiction.28 It would therefore be easier for a complainant to establish jurisdiction in an English court than a US court due to the absence of the requirement to show ‘targeting’.
In relation to the imitation period for bringing an action for defamation, in the UK actions are to be commenced within one year of the publication of the material complained of.29 However, under the multiple publication rule, the statute of limitations runs anew each time a magazine, book or newspaper is sold;30 and, for internet postings (such as internet archives), the limitations period remains open so long as the publication is accessible online.31 This therefore means indefinite liability for publishers and online publishers, particularly those who maintain electronic archives as illustrated in the Loutchansky decision.32 A contrary position is seen in the US, which follows a “single publication” rule, as the statute of limitations generally begins to run from the first publication or Internet posting of the statement, even if the publication remains on sale or the posting stays up on the Internet.33 A claimant may therefore find that on the same facts, his action may be heard in a court in the UK, but time barred in the US.
The multiple publication rule could have a further drastic effect as an article which would be defamatory but for the fact that it was in the public interest when first published, may lose its public interest defence of qualified privilege when published again at a later date if the facts have changed over time or the information is no longer of genuine public interest.34 For such articles which are accessed from online archives, this will give rise to a separate action of libel – unless it can be proven that the public interest defence continues to apply at the date the article is accessed.35 This effectively means that there could be multiple actions from the same article where it is published both as a hard copy and online as in the Flood case. It also means that materials could become defamatory in the future and actionable as such, which gives the claimant more opportunity to sue.
This divergence between the UK and the US on the multiple publication rule has been criticised in the US as giving ‘unfair advantage to the claimant’, creating ‘an open ended liability that might well chill free speech of public concern’.36 In the UK, there has also been criticism of the rule and calls for legislative reform37 in the wake of the decision of the European Court of Human Rights that provided any second or subsequent action is brought reasonably proximately to the original publication the rule does not breach article 10 of the European Convention on Human Rights (ECHR).38 The point remains though that from the point of view of a claimant, the present position in the UK affords them a better opportunity to bring their action.
Whilst there have been criticisms of the practice of forum shopping, a prudent complainant would do well to consider his options as to forums as there could be very different decisions as to liability and quantum of damages depending on the jurisdiction. From the foregoing analysis, the English courts are more claimant-friendly than the US courts, so more claimants may wish to institute actions for Internet defamation in the UK once they can establish they have a reputation here. However, even if a claimant wins at trial against a foreign defendant, all hope may not be lost for the defendant as claimants may find that their enthusiasm for English justice is not shared by the courts to which they must turn in order to enforce their judgments.39
1BD Sells, ‘Recent Developments in Internet Defamation Law’ (2006) JITL & P 1
2A libel claim could be international in three respects: it could be brought by a claimant based abroad, it may be brought against a publisher based abroad or it may be brought in respect of a publication which has occurred abroad. Sometimes more than one of these elements will be present as in King v Lewis  EMLR 4
3TC Hartley, ‘ “Libel Tourism” and Conflict of Laws’ (2012) ICLQ 25
4A Melville-Brown, ‘Publish and be Damned – By the Court’ (2009) Eur L 16
5Sells (n 1).
6IJ Lloyd, Information Technology Law (5th edn OUP, Oxford 2008) 572 this may be contrasted with the era of printed materials where the majority of a newspaper’s circulation would be restricted to its country and jurisdiction of publication.
7Lloyd (n 6) 572.
8This is a type of forum shopping where a claimant chooses to bring a libel action in the jurisdiction thought most likely to give a favourable result. See Hartley (n 3).
9Sells (n 1).
10See Richardson v Schwarzenegger  EWHC 2422, in which Eady J stated that it was now ‘well settled’ that ‘an internet publication takes place in any jurisdiction where the relevant words are read or downloaded’.
11Melville-Brown (n 4).
12‘Truth’ (NZ) Ltd v PN Holloway  1 WLR 997, 1002-3
13 14 QB 185
14Godfrey v Demon Internet Ltd  QB 201at 208; Loutchansky v Times Newspapers (nos 2, 3, 4 and 5)  EMLR 14 where the Court of Appeal upheld Gray J’s adherence to the traditional rule in the context if limitation periods, seeing no reason to depart from the Court of Appeal’s decision in Berezovsky v Forbes (No 1)  EMLR 278 despite counsel’s strenuous arguments to the contrary.
15See WL Prosser, ‘Interstate Publication’ (1953) 51 Mich LR 959; LA Wood, ‘Cyber-Defamation and the Single Publication Rule’ (2001) 81 Boston ULR 895; and N Shanmuganathan, ‘Liability of Online Publishers Following Gutnick’ (2002) 152 NLJ 1040
16Ogden v Association in the United States Army (1959) 177 Supp 498 at 502
17TC Hartley, ‘ “Libel Tourism” and Conflict of Laws’ (2012) ICLQ 25
18Hartley (n 18).
19Hartley (n 18).
20See Sheville and Ors v Press Alliance SA Case C/68/93 available at < http://ubb-app.derby.ac.uk/courses/1/2009-7LC023/content/_293109_1/Shevill%20v%20Press%20Alliance.pdf?bsession=4167063&bsession_str=session_id=4167063,user_id_pk1=55558,user_id_sos_id_pk2=1,one_time_token=> accessed 5 May 2010
21Which would have jurisdiction in respect of all the harm
22In this case the claim must be limited to damage flowing from the copies of the publication distributed in the territory of the forum.
23Civil Jurisdiction and Judgements Order 2001
24If the publication in England was minimal, the court might strike out the proceedings for abuse of process: Jameel (Yousef) v Dow Jones & Co Inc  QB 946. Although recent decision in Madras v New York Times Co  EWHC 3135 urges caution with the abuse of process doctrine.
25Under this doctrine, English courts stay proceedings if the court of another country is clearly a more appropriate forum. See A Eardley, ‘Libel Tourism in England: Now the Welcome is Even Warmer’ (2006) Ent LR 35
26See Berezovsky v Michaels [ I WLR 1004
27A Eardley, ‘Libel Tourism in England: Now the Welcome is Even Warmer’ (2006) Ent LR 35
28SK Young v New Haven Advocate et al., 315 F. 3d 256
29Limitation Act 1980 s 4A
30See Duke of Brunswick (n 14).
31See Loutchansky (n 15).
32B Jordan, ‘ “Existing Defamation Law Needs to Be Updated So That it is Fit for the Modern Age” – The Government’s Consultation on the Multiple Publication Rule’ (2010) Ent LR 41
33Firth v State of New York 98 NY 2d 365, 370, 775 NE 2d 463 (NY 2002)
34S King, ‘Gary Flood v Times Newspapers Ltd: Online Archives Must be Regularly Reviewed for Defamatory Material (Case Comment) (2010) Ent LR; See Flood v Times News Papers Ltd  EWHC 2375;  EMLR 8
35King (n 36).
36Charles Glasser, Global Medial Counsel for Bloomberg News, as quoted in A Melville-Brown, ‘Reputation- a Matter of Timing (2009) Eur L 14
37On September 16, 2009, the Ministry of Justice Published Consultation Paper CP 20/09 on Defamation and the Internet: the Multiple Publication Rule available at < www.justice.gov.uk/consultations/…/defamation-consultation-paper.pdf -> accessed 6 May 2010 for comments on this paper, see B Jordan, ‘ “Existing Defamation Law Needs to Be Updated So That it is Fit for the Modern Age” – The Government’s Consultation on the Multiple Publication Rule’ (2010) Ent LR 41
38Times Newspapers Ltd v The United Kingdom (3002/03)  EMLR 14
39US courts in particular have declined to enforce awards on the basis that English libel law is anathema to the First Amendment.