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UK Courts Address Jurisdiction in Internet Libel Cases
Two recent UK court decisions dealt with the question of jurisdiction in Internet libel cases. The first case involved, among others, boxer Lennox Lewis and promoter Don King.
The material in question was stored on websites based in California, and related to another proceeding taking place in New York. The issue was whether the American defendant could be served outside of the UK. It was accepted that the tort had occurred in the UK, because in England, the tort of libel is committed where the publication takes place, and Internet text is published at the place it is downloaded. The question was then whether the court should exercise its discretion to find that the UK was the convenient forum for the conduct of the trial.
The Master who made the first decision, and the judge who heard the first appeal, both decided that the UK was a proper forum, and allowed service outside the jurisdiction.
The UK Court of Appeal discussed various principles or strands of reasoning that courts should have in mind when deciding whether a forum is appropriate. The initial presumption is that the natural or appropriate forum is the place where the tort is committed. However, the more tenuous the claimant's connection to that jurisdiction, the weaker the first consideration becomes.
With respect to "trans-national" libels, including Internet libels, the Court recognized that a defendant who publishes defamatory material on the Internet may be vulnerable to multiple actions in different jurisdictions because of the rule that each publication constitutes a separate tort. The Court considered the Australian case of Gutnick v. Dow Jones, and stated that global publishers should not be "too fastidious" as to the part of the globe where they are made libel defendants, although courts will still have to ascertain the most appropriate forum in the circumstances of each case. The Court of Appeal concluded that in an Internet libel case the court's discretion will be more open-textured, for that is the means by which the court may give effect to the publisher's choice of a global medium.
The defendant's lawyer argued that in deciding the appropriate forum in Internet libel cases, courts should be more prepared to stay proceedings where the defendants did not target their publications towards the jurisdiction in which they were sued. That is, the defendant's intentions should be taken into account when addressing forum non conveniens issues in Internet libel cases. The Court of Appeal rejected this submission out of hand and found that in such cases, defendants have "targeted" every jurisdiction where their text may be downloaded, and it makes little sense to distinguish between one jurisdiction and another to try to decide which was "targeted".
In the end, the Court of Appeal decided that the trial judge applied the proper principles and did not make any errors of law, and therefore dismissed the appeal.
The second case involved an online article in the LA Times containing statements by Governor Schwarzenegger. The Court of Queen's Bench applied the Lewis v. King decision to hold that an Internet publication occurs in any place where the text is read or downloaded.
These decisions along with recent decisions out of Canada and Australia demonstrate that courts in many countries are taking a liberal approach to jurisdictional issues in Internet libel cases, and that defendants who post potentially libelous material on the Internet must be prepared to face legal action in various jurisdictions even if these jurisdictions were not "targeted".
For a copy of the Lewis v. King, visit:
http://www.courtservice.gov.uk/judgmentsfiles/j2844/lewis-v-king.htm
For a discussion of recent Canadian case law on this topic, visit:
http://www.heydary.com/publications/online-defamation-laws.html