Defamation Act 2013: Let’s Learn from the Irish

A lot has been said about the new Defamation Act. Some have welcomed it as the dawn of a new era for freedom of expression, others as likely to lead to the suppression of genuine claims. Regardless of what people think, it is the new law, and as a new law that has not yet been tested in England and Wales, one can only hypothesise as to what the results may be.

Surprisingly though, it has been partly tested in Ireland. The argument is, if it has worked for Ireland, why would it not work for the England and Wales? A comparison of the two could be a good indication of what the future holds.

read more on INFORRM: Defamation Act 2013: Let’s Learn from the Irish – Clare Tsimpourla.

CSI MANUFACTURING v DUNN & BRADSTREET: Coleman v MGN round II

Mr Coleman was unfortunate enough to have his picture publicized next to an article about hooligans and drunkards by the Daily Mirror in 2003. That picture was also allegedly publicized in the internet edition of the said distribution, open to the worldwide public by subscription – but did that actually result in absolute geographical restriction? (read below). Mr Coleman claimed damages for defamation, damages for breach of contract, negligence, breach of duty and breach of statutory duty. 9 years later, the Supreme Court could not be furnished with evidence of the internet publication by the plaintiff (and obviously hard to ascertain the defendant kept an archive of publications so old for the sake of discovery), and therefore, since both the defendant and the paper’s audience were restricted to the UK, it lacked jurisdiction to decide in favour of the plaintiff.

Mirror Mirror on The Wall

I cannot resist commenting on the case of Coleman v MGN Limited (the mirror.co.uk libel case), it is indeed very interesting and quite contradictory.

I will take this backwards, starting from my findings and the words of Mrs Justice Denham:

¶ 14 of the appeal, she argues that ‘there is no evidence that the daily edition of the Daily Mirror was in the World Wide Web in 2003’.

The evidence is prominent on the WWW, from archives to daily website snapshots, I assure you every single common user has instant and free access to this evidence. Here is a sample demonstrating how the cover portrayed on the front page and the headlines on it, are separately and wholly published on mirror.co.uk in 2003, as well as every other day. Unfortunately not all dates and, most importantly, pictures are accessible some 9 years later, nonetheless one can easily put two and two together and draw the conclusion that the cover as well as the content of the daily printed publication were also published on the internet (why should the 13th March or the 20th September be a particular exception?). It sounds circumstantial but it doesn’t have to be, there are many ways to give direct proof – which will not be analysed here.

Now, let’s move on to the facts. The editors of the Daily Mirror knew very well what they were doing when they published the picture of a non UK resident (twice to be precise) next to stories about drunkards and teenage hooligans. Of course this is a very good cause for defamation, provided that the plaintiff takes a short trip to London where the newspaper is based – and the courts have, obviously, jurisdiction.

But Mr Coleman, for reasons of his own, decided to put the matter on trial in the area of his residency (Ireland) rather than hop on that short flight. Quite foreseeably, the defendant brought the matter of jurisdiction to the table and, as a result, the learned judge asked for proof of publication or circulation of the said newspaper in Ireland to be given in reasonable time, which in the end backfired since they were never able to provide such evidence (instead they changed their plea). The defendant’s motion for the court to decline jurisdiction failed and was left being sued for defamation, breach of contract, negligence and breach of statutory duty. On top of that, the claim was for exemplary, aggravated and punitive damages – what else could they possibly ask for? The defendant appealed this decision to the Supreme court, which in turn stated the above and more.

What saddens me is that Charleton J invested so much grey matter into making a fair, contemporary point that nobody eventually understood – or appreciated. I need to copy this from the appeal, it’s good study material, if anything:

“This is an application that the Court should exercise an extreme jurisdiction, to stop this case on the pleadings only. I have to take a statement of claim as being true in every respect. I therefore must take the statement of claim at its height, including all inferences that might be drawn from the primary facts pleaded.

This is a difficult situation and one that raises the question ‘Where does libel occur?’ With internet publications nowadays a recording from Saudi Arabia might end up in Ireland on the news. Because of the migratory movement of persons and technological age we live in, a newspaper from abroad can arrive a day later in Ireland.

Take the law as stated in Gatley, eighth edition para. 266 that ‘the original publisher of a defamatory statement is liable for its republication by another person where inter alia the repetition or republication of the words to a third party was the natural and probable result of the original publication’. [quoted from Ewins –v- Carlton Television].

In the statement of claim the plaintiff has claimed that the publication [by the defendant] caused him damage in this jurisdiction and that claim is repeated in the affidavit [filed in response to this motion]. He may therefore have a case. However, if it is clear that the plaintiff’s case must fail, my preference is of course that everyone should be put out of their misery now.

From Erwins –v- Carlton Television, the Rules under the Brussels Convention seem to be clear. In that case, Mr. Justice Barr held that where there was publication in several jurisdictions the plaintiff has a choice.

The rules as to where damage occurs can be seen in relation to a car accident in France. In terms of defamation it is different. Therefore when answering the question ‘Where did the damage occur?’ in terms of defamation, given that in the Ewins case Mr. Justice Barr followed the decision in Shevill –v- Presse Alliance SA, the plaintiff is within his rights to choose the jurisdiction. He may not be able to prove publication but he could prove it if someone brought back a copy of the paper from the United Kingdom. There could be rumours flying around from emigrants and migratory workers from the United Kingdom.

The question in contract is a lot less clear. Taking the statement of claim at its height the plaintiff should be entitled to pursue his claim. I do not know if the plaintiff will succeed in proving the terms of the contract but, insofar as it is suggested that there was an obligation to delete the [plaintiff’s] picture from the defendant’s database, presumably that database is located in the British Island, not here.

I hope I am not continuing the misery of proceedings but in my opinion the appropriate order is to refuse the motion.”

And to think Mr Coleman would have won the case had he hired an internet specialist to track down a server, any server, with the snapshot of the said issues on mirror.co.uk. Our footpints are all monitored and stored in databases worldwide, from our first click to our last glimpse. He just needed someone who knew how to take it a step further from Google – and he still wouldn’t have to board that flight!

You can read the judgement here.