Online Defamation and Jurisdiction

Online Defamation and Jurisdiction Presented by: Dr Julia Hörnle (Professor of Internet Law) Online Defamation & Jurisdiction- the Background - Conflict jurisdiction & access to redress vs freedom of expression in online communications? - Cultural and political notions of the limits of privacy and reputation protection, which differ from jurisdiction to jurisdiction - The choice of one party's local court as the competent forum, and one party's domestic law as the applicable law, may favors one party's case over that of the other Within the EU: Jurisdiction Partially Harmonised - Brussels Regulation EU 1215/2012 - Only if one of the defendants is domiciled within the EU, otherwise national rules apply - Defendant's Court - Special Rule of Jurisdiction in Art 7 (2) for torts and other wrongful acts: "place where the harmful event occurred" - Case 21/76 Handelswekerij GJ Bier BV v Mines de Potasse d'Alsace SA [1976] ECR1735 - Either the place where the event giving rise to the damage occurred or the place where the direct damage to the defendant's interests fell - Claimant's domicile: if the direct damage fell there! Defamation: Place Where The Damage Occurs And The Mosaic Rule - Place where the damage occurs: place where reputation is damaged: the claimant's domicile or a place where the claimant has substantial family or business connection - Outside defendant's control for online communications? - Forum shopping: widely spread across several states leading to multiple possible venues? - Case C-68/93 Shevill v Press Alliance [1995] • Mosaic rule: first, the claimant can sue in each and every jurisdiction where she has suffered damage under the second limb of Article 7 (2) with the proviso that she can only claim for the loss suffered in the jurisdiction concerned. - C-509/09 date Advertising GmbH v X and C-161/10 Oliver Martinez v MGN Ltd [2011] • Centre of interests test • Third place of jurisdiction to sue for the whole loss Defamation: Where Is The Event Giving Rise To The Damage? - Depending on the definition of the tort under national law • The place where the conduct took place, • The place were publication or dissemination occurred, or • The place where any of the elements of the tort took place - Common law place where statement is accessed/downloaded Gut nick (Australia) - EU establishment of the publisher (CJEU in Shevill) = frequently domicile of publisher defendant? Centre of interest test in E-Data - Centre of gravity of her protected interests, such as a claimant's habitual residence or place of work or other professional activity - Reasonably foreseeable? - Type of targeting test? - Applies to individuals and businesses: • Case C-194/16 • But for businesses: where the business' goodwill is located and the place to which its products are targeted to The Mosaic Rule And Forum Shopping? - Criticism of the mosaic rule? • Damage is indeed widespread, for example where a famous person has a reputation in several EU Member States, it is technically difficult to quantify the amount of damage to reputation for one particular territory • Multiple claims in different jurisdictions • Unforeseeable • Criticized by AG Bobeck in Case C-194/16 and Islan • Does not apply to injunctions Forum Shopping And English Defendants: Back To England - English common law - Common law rules for in persona jurisdiction - Defendant's presence/voluntary submission - Permission for service outside the jurisdiction • - Paragraph 3.1 of Practice Direction 6B (PD6B) Service of proceedings abroad: discretionary power of court to decline jurisdiction forum non convenient • Spiliada Maritime Corporation v Cansulex [1987] AC 460 (HL) • Interests of justice • Legal and practical considersations - PD6B Para 3.1 (9) - The damage was sustained in England, or alternatively, that the damage sustained resulted from an act committed within England - Similar to the EU jurisdiction rules - Defamation: place of access/downloading pivotal - Downloading in England and damage to reputation there? - Jameel v Dow Jones [2005] QB 946, para 48; Loutchansky v Times Newspapers [2002] QB 783, paras 58-59; Harrods Ltd v Dow Jones [2003] EWHC 1162 (QB); Lewis v King [2004] EWCA Civ etc. - LIBEL TOURISM - Non-domiciled claimant is suing a non-domiciled defendant in respect of an internet defamation on the basis of tenuous business and family links within the jurisdiction which give rise to damage in the form of reputational harm within England - Changes by the UK Defamation Act 2013 - S. 1 damage no longer presumed - S. 9 (2) England must be the most appropriate place to sue! • No longer sufficient to prove that England is an appropriate forum of several Wright v Ver [2019] EWHC 2094 (QB) and Ahuja v Politica Novine [2016] 1 WLR 1414 (QB)  Preponderance of publication in England  Targeting?