Implications for the law of defamation in the age of the internet revolution _ the publication requirement

‘Implications for the law of defamation in the

age of the internet revolution – the publication

requirement’

Raymond Holian

Student Number: 12143146

Bachelor of Arts in Law and Accounting

Submission Date: 18th

March 2016

Supervisor: Eoin Quill

Title Page

Name: Raymond Holian

Student Number: 12143146

Name of Institution: University of Limerick

Programme of Study: Bachelor of Arts in Law and Accounting

Title: Implications for the law of defamation in the age of the internet

revolution – the publication requirement

Word Count: 8,489 excluding List of contents, Abstract, Direct quotes from

qualitative data e.g. legislation, quotes from judgments and law

reports.

Name of Supervisor: Eoin Quill, School of Law, University of Limerick

This project is solely the work of the author and is submitted in partial fulfilment of the

requirements of the Degree of B.A. in Law and Accounting

Signed:

Abstract

The age of the internet has presented extraordinary challenges for many principles of law. In

particular it has created vast challenges for the law of defamation. One of the principal

problems for the courts, due to the nature how information is stored and shared, is how to

interpret the publication requirement for the purpose of an action in defamation.

The Defamation Act 2009 has addressed some of the issues. However in general it is felt the

legislature have taken a conservative approach and it has been primarily the role of the courts

to apply existing principles, developed in the era of the letter and the telegram to situations of

internet defamation. A major problem with this approach is certainty as the courts can only

deal with the issues as they arise in individual cases.

This paper will therefore seek to analyse the principles of defamation as they have developed

through traditional methods of communication in order to determine how they might apply in

the case of internet defamation. It will draw on the limited case law which has developed on

internet defamation and also utilise any useful statutory provisions which have been

implemented. The paper will focus on three particular issues within the publication

requirement of defamation.

First, it will focus on unintentional publication. Whereas publication will generally be

intentional, there may also be cases of accidental publication. A successful claim of

unintentional publication will mean that publication will be seen not to have occurred and the

defendant will be exempt from liability for the publication in defamation. As will be shown

there is an inherent danger that information on the internet may be intercepted, more so than

any existing methods of communication.

It will then focus on the distinct issues of multiple publication, repetition and republication.

The inherent danger that content placed on the internet will be accessed and shared by others

creates a number of obvious questions for defamation law including the extent of liability for

publishing to multiple persons, the liability of those who interact with and share defamatory

content i.e. subsequent publishers and the liability of the original publisher for the actions of

subsequent publishers.

It will finally look at the issue of jurisdiction. The internet can be said to provide a platform

for anyone on the planet with the correct expertise to access our data. Due to the number of

users, this information can spread in a matter of seconds to all corners of the globe. The paper

will attempt to outline any issues this may create.

The paper will generally focus on the development of the law through traditional methods of

communication before directing its attention on the particular issues in the age of the internet.

Table of Contents

Table of Contents

Introduction

1

Section

A Communicating Online

1

Communicating via email

Section

B Unintentional Publication

2

Meaning of Reasonably Foreseeable

4

Traditional Communication Methods

(i) Postcard and Telegram 4

(ii) Letter in an envelope 4

Relevance to Online Methods

5

(i) Interception of Communications 6

(ii) Plaintiff's Act in Reporting 7

Outstanding Issues

9

Section

C Multiple Publication, Repetition

and Republication

Multiple Publication

10

Interests of Justice? 11

Repetition

12

Liability of the Original Publisher for

Republication

15

Relevance to Online Methods 17

Section

D Jurisdiction 18

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‘Implications for the law of defamation in the age of the internet revolution – the publication requirement’

Introduction

Just as history views the eighteenth century as a period of industrial revolution, in years to

come, history will inevitably classify the present day as the age of the internet revolution. The

‘world wide web’ has, in an unprecedented manner, become the principal method of

communication since its creation just a few decades ago. People choosing to interact in this

way pose major problems for many principles of law which developed over several centuries.

Maher notes that this use of ever developing technology creates extraordinary challenges for

the law of defamation in particular.1 The application of principles developed in the era of the

letter and the telegram and other traditional communication methods, to the features of online

communication is the major challenge for the courts.

S 2 of the Defamation Act 2009 provides that a defamatory statement is one that ‘tends to

injure a person’s reputation in the eyes of reasonable members of society.’ The elements

which must coincide for a successful claim in addition to this defamatory statement is that it

must be published to some third person, there must be causation and the statement must lead

to injury to the claimant’s reputation.

Bruce Schneier famously noted ‘hardware is easy to protect: lock it in a room, chain it to a

desk, or buy a spare. Information poses more of a problem. It can exist in more than one

place; be transported halfway across the planet in seconds; and be stolen without your

knowledge.’2 The information he is referring to here is that which is transferred over the

internet. It can be said to provide a platform for anyone on the planet with the correct

expertise to access our data. Furthermore due to the number of users, this information can

spread in a matter of seconds to all corners of the globe.

The publication requirement is therefore the one requirement which has been most affected

by the development of technology and will thus be the focus of this paper. This paper will

attempt to decipher the impact of the internet’s unique characteristic of accessibility on

existing principles of publication, centring on:

(i) Unintentional Publication

(ii) Multiple Publication, Repetition and Republication; and

(iii) Jurisdiction

1 John Maher, The Law of Defamation (Dublin Round Hall 2011) p 46 para 3-01.

2 Bruce Schneier, Protect Your Macintosh (San Francisco Peachpit Press 1994)

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The analysis throughout will focus on the development of the law through traditional

methods of communication before turning to the particular issues for online communication.

Communicating Online:

Before turning to the principles of law it is important to have an understanding of the way in

which communications sent over the internet occur. It is difficult to explain the complexities

of online interactions in any short form but the most fundamental basis of online

communications is that they rely on a server, that is, an external computer program or a

machine that waits for requests from other machines (clients) and responds to them. The

purpose of a server is to share data among clients. Theoretically at least information

transferred through a server is accessible. However someone with sufficient expertise would

be required to access any such data.

Communicating via Email

Figure 1 gives a simple explanation

of the process involved in sending an

email from one address to another.

John who wishes to send an email to

Mary presses send. It then goes

through the server he is connected to

for processing. It is then sent over

the internet to the server Mary is

connected to for processing. It is then

processed in the server Mary is connected to before it finally reaches Mary’s inbox.

For the purpose of simplicity the figure above has avoided the use of complicated terms. If

talking about private email as opposed to business email, mass amounts of communications

would go through the servers where private individuals email is dispatched. It is therefore

highly unlikely any communications would be seen or indeed be monitored. This is important

from the perspective of the foreseeability requirement as will be discussed.

Business email sent from a business address, as distinct from private email, is much more

likely to be monitored. Most businesses will have an acceptable usage policy for internet use

and a typical email sent from a business address may include the following passage

The views expressed in this email may be personal to the sender and may not represent the

views of [the business]. Please note that messages to or from [the business] may be monitored

to ensure compliance with the firm’s internet usage policy and procedures.

The inclusion of such a passage would indicate that the content may be monitored and lead to

the conclusion that it is likely that the content would be seen by another person. However in

this case it is also important to note that such content may be privileged. A fuller discussion

of this is beyond the scope of this paper but it is likely that only content of a personal nature,

sent from a business address could be said to be capable of being published for the purpose of

defamation. Content relating to the running of the business may be privileged.

Figure 1

John (client 1) sends email to Mary (client 2)

Server hosting John's email

address receives the data

Internet

Server hosting Mary's email

address receives the data

Mary receives Email

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We can relate this simple example of an email to other online methods of communication.

Anything posted online must direct its way through a server before being posted through

another server to a site. For the purpose of this paper an understanding of the relationship

between the people communicating and the server will be required throughout.

A. Unintentional Publication:

Whereas publication will generally be intentional, there may also be cases of accidental

publication. A successful claim of unintentional publication will mean that publication will

be seen not to have occurred and the defendant will be exempt from liability for the

publication in defamation. As we have already seen all online communications are directed

through a server and persons with the correct expertise are capable of accessing and viewing

such content. Naturally it is therefore possible if not probable that someone may access our

communications without our intention. The question for the law is whether such

communications will be seen as a publication for which a defendant is liable in defamation.

Common law liability for unintentional publication generally only attached where the

publication, albeit unintended was also reasonably foreseeable. This rule has also been

reflected in the 2009 Act.3

S 6(4) states:

There shall be no publication for the purposes of the tort of defamation if the defamatory

statement concerned is published to the person to whom it relates and to a person other than

the person to whom it relates in circumstances where –

(a) It was not intended that the statement would be published to the second-mentioned

person, and

(b) It was not reasonably foreseeable that publication of the statement to the first – mentioned

person would result in its being published to the second mentioned person.

Following the implementation of the 2009 Act there has been significant debate over the

continued application of the common law principles. It has been suggested that the statute

would only be relevant to a limited number of cases.4 It is however unlikely that the principle

of unintentional publication would be limited to this narrow interpretation. Although the

common law defences to defamation were repealed in section 15 of the 2009 Act,5 it has been

submitted that unintentional publication is unlikely to be characterised as a defence but rather

as a situation where publication for the purpose of defamation law cannot be seen to have

3 Defamation Act 2009

4 For example Eoin Carolan and Ailbhe O’Neill, Media Law in Ireland (Bloomsbury Professional 2010) at p

195 argue that s 6 (4) will only apply where publication to the second person occurs as a result of the

communication with the person to whom the statement relates; See also Neville Cox and Eoin McCullough,

Defamation Law and Practice (Dublin Clarus Press 2014) at 2-38 who suggest this interpretation would

preclude the use of the statutory provision where there have been multiple unintended publications. For example

in a situation where A only intended the defamatory statement to be communicated to B (to whom it relates) but

unintentionally it was communicated to C and D the statute would have no application 5 S 15 Defamation Act 2009 abolishes all pre-existing common law defences (except for the privilege defences,

see ss.17 & 18).

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occurred.6 Section 3 (2) states the ‘Act shall not affect the operation of the general law in

relation to defamation except to the extent that it provides otherwise (either expressly or by

necessary implication)’. Characterisation of unintentional publication as a situation where

publication is seen not to have occurred as distinct from a defence would enable the common

law rules to continue to have effect. This would seem to be the most appropriate decision and

for the purpose of this paper it will therefore be assumed that the common law rules continue

to apply.

Reasonably Foreseeable:

The meaning of reasonably foreseeable in s 6 (4), is not defined in the Act but has been

considered extensively at common law. Maher highlights that the rule now reflected in s 6 (4)

was originally formulated and refined in cases concerning letters and telegrams, and disputes

over whether the writers should be held liable for defamation where the material was read by

someone other than the addressee.7 Comparisons can be drawn between the characteristics of

such communications and online equivalents. Just as a letter goes through the post system

and is delivered by a post man, an email or message over the internet goes through a server

system monitored by a ‘post-master’.8 In traditional cases much turns on whether it is

reasonably foreseeable to the sender that someone other than the addressee would read the

material, and whether by failing to take precautions against this, the sender would forfeit a

privilege which might otherwise protect the communication.

Traditional Communication Methods

(i) Postcard and Telegram

It is generally accepted that postcard and telegram communications will be read by persons

other than the final intended recipient.9 The same logic can be applied to fax

communications. Thus in Williamson v Freer,10

in relation to telegrams Brett J stated ‘[the

telegram] is necessarily communicated to all the clerks through whose hands it passes. It is

like the case of a libel contained on the back of a post-card’.11

The presumption of publication

here would not prevent a defendant from attempting to prove there had been no publication. It

merely shifts the burden of proof.

(ii) Letter in an Envelope:

With regard to letters in envelopes which are sealed and other genuinely private

communications, there is no presumption that they will be read or accessed by third parties

and hence it becomes a factual question as to whether it was foreseeable that this would

6 Neville Cox and Eoin McCullough, Defamation Law and Practice (Dublin Clarus Press 2014) at 2-39; See

also Maher (n1) p 51 Para. 3-19 7 Maher (n 1) p 52 Para 3-20.

8 Although an email is delivered automatically and electronically as distinct from post which is hand delivered.

9 Robinson v Jones (1879) 4 LR IR 391; McCann v Edinburgh Roperie (1891) 28 LR IR 24.

10 (1874) LR 9CP 393 (The plaintiff was employed as assistant in the shop of the defendant. The defendant

accused the plaintiff of robbing him of money sent two post-office telegrams to her father, who resided in

London, to inform him of his suspicions). 11

(1874) LR 9CP 393 at 394.

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happen. At common law, a publisher was only liable where he or she knew or ought to have

known, that the communication would be read by someone else.

In Delacroix v Thevenot12

the writer of a defamatory letter sent the letter to the plaintiff

knowing that the plaintiff’s clerk would normally open any letters marked private. The clerk

also gave evidence that this was a habit of his and the defendant was aware of this habit as he

knew the business well. Lord Ellenborough held that there was sufficient evidence for the

jury to decide that the defendant intended the letter to be read by a third person. Similarly in

Gommersall v Davies13

it was held that it was right to leave the question of whether there was

an intended publication to the jury where there was evidence that a clerk, in the ordinary

course of business, opened letters addressed to the plaintiff, and that practice was known to

the plaintiff.

By contrast in Keogh v The Incorporated Dental Hospital of Ireland 14

the defendants were

not liable for publication because the defendants had no reason to believe that the letter to the

plaintiff refusing him enrolment at the institution would be opened by his assistant. The

plaintiff here had requested to be entered into dentistry school. The plaintiff had operated as a

dentist for a number of years. The school sent a letter to the plaintiff’s office rejecting the

application which was opened by the plaintiff’s clerk. This was normal practice in the

absence of the plaintiff. There was however no evidence that the defendant knew of the

practice. The court held that there was no evidence of publication for which the defendant

could be liable as the defendant was unaware that the plaintiff had a clerk that opened letters

and - even if there was such evidence - this communication would have been privileged. The

court here distinguished the facts from Delacroix where there was evidence that the

defendant knew that the plaintiff’s clerk was in the habit of opening letters; and, Gommersall

where the plaintiffs business indicated that the defendant should have known that the

plaintiff’s clerk would open the letter.

It can therefore be said that there must be actual or constructive knowledge15

of the practice

of someone other than the plaintiff opening the letter for publication to be said to have

occurred.

Relevance to Online Methods:

The principles relating to both of the above methods of communication have particular

relevance on the question of liability for online communication. As we have seen all

communication sent over the internet is directed through a server which is capable of being

monitored. The question for the law is would the fact that this server is used raise a similar

presumption to that of a postcard or telegram, that is, it is communicated to all post-masters

who monitor the servers through which the communication passes? Or would the position be

12

(1817) 2 Stark 63. 13

(1898) 14 Times LR 430 (The plaintiff was a merchant and all letters sent to the merchant’s office were

opened by a secretary in the merchant’s office). 14

[1910] 2 IR 57. 15

That is the defendant ought to have known that someone other than the plaintiff would intercept the

communication.

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similar to that of a letter in an envelope, that is, a factual question as to whether it was

foreseeable that publication would occur with the plaintiff owing the burden of proof?

The English ruling in Al Amoudi v Brisard16

would indicate that there would be no

presumption of publication. In contrast the plaintiff would bear the burden of proving there

had been publication. The applicant businessman (M) applied to strike out the defence of the

respondents (B) in a libel action or alternatively for summary judgment in his favour. M

claimed that two alleged libellous materials had been published on B’s website. B argued that

the words complained of were not downloaded within the jurisdiction, but in any event, if

they had been, they were downloaded by lawyers acting for M or for others named in the

publications and so could not be relied upon. M argued that there was a presumption that the

words complained of were published via the internet to a substantial but unquantifiable

number of readers in the jurisdiction of the court and that, accordingly, the defence, insofar as

it denied publication, should be struck out, or that summary judgment should be entered in

the absence of a substantive defence. Refusing the application Gray J directed,

As to that the general rule, as stated by the editors of the current edition of Gatley on Libel

and Slander,17

is that the claimant bears the burden of proving that the words complained of

were read or seen by a third party. From that proposition it would appear to follow that, in the

case of an Internet libel, it would be for the claimant to prove that the material in question was

accessed and downloaded18

It followed therefore in Loutchansky v Times Newspapers Ltd (No.2)19

that in the case of an

internet libel, it was for the claimant to prove that the material in question had been accessed

and downloaded. The plaintiff here brought a libel action against Times Newspaper on the

basis of two articles published in the defendant’s newspaper which had also been posted on

its website. The action regarding publication on the website was commenced more than one

year after the articles were posted. The plaintiff did not allege that the internet articles had

actually been accessed, contending instead that internet publication could be inferred from

the number of monthly visits to the defendant's website and search engine capability.

Utilising the principle developed with the letter, the defendant in an action involving an

online defamatory statement would be liable for publication where s/he had actual or

constructive knowledge of the practice of someone other than the person the communication

is directed to, having access to the communication. Having established this it is important to

explore some of the scenarios where the defendant could be said to have had constructive

knowledge, that is, where the defendant ought to have known that the defamatory material

would be published

(a) Interception of communications:

As has been discussed from the outset of this paper there is an inherent danger of using

internet communications as they will often be capable of being intercepted and read by third

parties. Whether such an interception is capable of amounting to a publication for the purpose

16

[2007] 1 WLR 113. 17

Clement Gatley and others, Gatley on Libel and Slander (London 12th

edn, Sweet and Maxwell 2015) para.s

6-1 and 32-5. 18

Al Amoudi v Brisard and another [2006] EWHC 1062 (QB); [2007] 1 WLR 113 at 7. 19

[2001] E.M.L.R. 36.

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of an action in defamation will turn on a question of foreseeability which will be a question

of fact. There will be no publication where interception is not foreseeable.

Collins20

separates such communications into three distinct categories. For the purpose of the

analysis emails have been used. The same principles can however be applied to social media

communications.

(i) Interception of private email.

Email sent only to the defamed person, at a private as opposed to a business

address, is probably no more foreseeable than the interception of a sealed letter

and the sheer volume of emails sent everyday makes it inherently unlikely that it

will be intercepted.

(ii) Interception of business emails

It is more likely given the monitoring policies many businesses issue with regard

to email usage. It may therefore be reasonably foreseeable that emails sent to an

individual’s business email would be intercepted and read by others.

(iii) Hackers

In contrast the unauthorised interception of emails by hackers should not be

treated as reasonably foreseeable, just as it is not reasonably foreseeable that

letters will be illicitly opened.

Given the recent ruling by the ECHR in Barbelescu v Romania21

a further category could be

added here, namely, the interception of private emails during working hours. In a landmark

ruling the Court held that employers are entitled to monitor what an individual is doing

during working hours on work devices. This includes mobile devices issued by an employer

to an employee. It could therefore be said to be foreseeable that communications during

working hours to such devices would be intercepted. Communications to private devices

during working hours would not fall into this category, merely private communications to

devices issued by employers to employees.

(b) Plaintiff’s Acts in Reporting

Another issue for the law is whether acts of publication by another in the process of reporting

can be imputed to the defendant in any circumstances. Of particular importance is whether

reporting a defamatory statement about oneself can amount to a publication for the purpose of

defamation.

As a general rule if A writes a letter to B, defaming B (which is no publication) and B shows

this to C there is no publication for which A is responsible, for the publication is B’s own act.

The situation is different where B is under a duty to pass on the charge against him22

, or

20

Matthew Collins, The Law of Defamation and the Internet (3rd

Edition, Oxford University Press 2010) p 74

Para 5-21/22. 21

Barbelescu v Romania App No 61496/08 [ECHR, 12 January 2016]. 22

Collerton v MacClean [1962] NZLR 1045, where a document allegedly undermining tactics of the union

secretary was found to be defamatory as the meaning taken from the words would be that the plaintiff was

inefficient, incompetent, unfaithful and therefore unfit to be a secretary of the union. The plaintiff acting as the

union secretary had passed on the libellous letter to the executive as he was under a duty to do so.

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probably, where special circumstances, such as the immaturity of the recipient, make the

publication by him likely23

. Gatley further notes it may be that the responsibility of the

defendant does not stretch so far as it does when there has been an initial publication to a

third party and that party repeats it to others.24

In the US case of Shepherd v Lamphier25

the plaintiff laid a letter before postal authorities.

By reason of his own complaint the plaintiff had caused the letter to be made public. Counsel

for the plaintiff argued the defendant knew that the mailing of the said letter would be, or was

likely to be investigated by the postal authorities, and that in the event of such an

investigation said letter would come to the knowledge of public officials and other persons,

so that publication would thereby become inevitable. Wheeler J held the acts of the defendant

didn’t amount to publication,

Injury to reputation, of course, necessarily involves the making of the matter public, and, if

that comes through the act of the party claimed to have been libelled, the injury to reputation

cannot be legally imputed to the other party26

Whether liability is imposed for further dissemination is decided on a test of forseeablility. In

Chasewood Construction Company v Rico27

the court left to the jury the question of whether

a reasonably prudent person in the circumstances would have known a statement would be

communicated to others by the plaintiff. The case is the appeal of Chasewood Construction

Company over liability in defamation. Rico was a subcontractor of Chasewood who had been

fired over an alleged incident on site which turned out to be false. Rico had brought a

successful claim in defamation. The publication had arisen when the plaintiff had reported the

fact he had been fired to his employees on site and the reasons the company had done so. The

court ruled that this publication was the foreseeable result of firing Rico and the company

was liable for such publication.

In First State Bank of Corpus Christi v Ake28

the plaintiff claimed to have been defamed by

the defendant when the defamatory communication was made to the plaintiff and the plaintiff

then communicated it to third parties. The plaintiff here had reported the alleged defamatory

statements to prospective employers during the course of a job interview. The plaintiff’s

injury were shown to be a consequence of his own communications to third parties but the

defendant had knowledge that the plaintiff was likely to communicate the defamation to third

persons.

One who communicates defamatory matter directly to the defamed person, who himself

communicates it to a third party, has not published the matter to the third person if there are

23

Davis v Askin’s Retail Stores 191 SE 33, the defendants here mailed a letter to a youth, containing language

which, on account of the plaintiff’s inexperience and youth, would cause him to believe he would be criminally

prosecuted. The court held the youth showing the letter to others for advice was the natural and foreseeable

consequence of sending the letter. 24

Gatley (n 17) p 177 at 6-13. 25

146 NY Supp 745 (1914). 26

Shepherd v Lamphier146 NY Supp 745 (1914). 27

696 SW2d 439 (Tx 1985). 28

606 SW2d 696 (1980).

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no other circumstances. If the circumstances indicated that communication to a third party is

likely, however, a publication may properly be held to have occurred.... Likewise, if a

reasonable person would recognize that an act creates an unreasonable risk that the

defamatory matter will be communicated to a third party, the conduct becomes a negligent

communication, which amounts to a publication just as effectively as an intentional

communication29

This principle would seem to have an interesting application in the context of online

communications. Users of social media in particular will be aware of the strong reporting

cultures of inappropriate content on sites such as Facebook and Twitter. Indeed the existence

of a ‘reporting button’ beside posts on Facebook is a clear indication that inappropriate posts

are likely to be reported. Facebook for example have a Community standards policy which

seeks to ‘allow you to speak freely on matters and people of public interest, but remove

content that appears to purposefully target private individuals with the intention of degrading

or shaming them.’30

Whether this would amount to sufficient ‘other circumstances’ or a ‘duty

to communicate’, as is the case in Chasewood and Ake is a question for the courts to

determine. It is likely to be argued that it would be foreseeable particularly given that both

the receiver and sender of the communication would be operating under the same usage

policy on social networks and the fact there is a strong reporting culture.

Outstanding Issues

Many of the situations explored above may be covered by the defence of qualified privilege.

It is likely particularly in the case of workplace communications that qualified privilege

would apply. However the focus of this paper is whether publication is seen to have occurred.

A more comprehensive study of the application of qualified privilege is beyond the scope of

this paper.31

A further issue is that of abuse of process and minimal publication. Where

publication is limited, the courts may strike out an action for abuse of process. This is likely

to be a significant issue in light of acts of reporting to the social network provider. Damage if

any here is minimal and there is a possibility that it will be struck out.32

Again while this

paper recognises the existence of this principle a more comprehensive discussion on the

matter is outside the boundaries of this paper.

29

First State Bank of Corpus Christi v Ake 606 SW2d 702 (1980) per NYE Chief Justice. 30

< https://www.facebook.com/communitystandards> accessed 19/01/2015. 31

See generally Cox and McCullough (n 6) p 25; Maher (n 1) p 158-182; Gatley (n 17) ch.s 14-17. 32

In Jameel (Youseef) v Dow Jones & Co. [2005] QB 946 it appeared that as only two people unconnected to

plaintiff had accessed the offending material, there had not been a ‘real and substantial’ infringement of his

rights. For further discussion Cox and McCullough (n 6) p 27 at 2-38; Maher (n 1) p 48 ; Gatley (n17) p.s

165/166.

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B. Multiple Publication, Repetition and Re-Publication:

As has been highlighted from the outset of this paper, there is an inherent danger that content

placed on the internet will be accessed and shared by others. This creates a number of

obvious questions for defamation law including the extent of liability for publishing to

multiple persons, the liability of those who interact with and share defamatory content i.e.

subsequent publishers and the liability of the original publisher for the actions of these

subsequent publishers.

1. Multiple Publication

Under the common law in England and Ireland each communication is a separate libel, so

that each act of publication gives rise to a separate cause of action.33

It would follow that a

plaintiff could take multiple suits grounded on the publication of a defamatory statement to

each individual who was party to the publication. However such an endeavour would be

impractical and has been interpreted as an abuse of process.34

By contrast the American

approach has been to follow the ‘single publication rule’ whereby the plaintiff is deemed to

have one cause of action stemming from initial publication against any individual in the

distribution process.35

The rule avoids the potential problem of multiplicity of suits and

permits limitation periods to be calculated from the initial publication, allowing the statute of

limitations to take effect.

The position in England and Ireland under the common law was not sustainable particularly

in relation to online archives which store data for viewing.36

The UK Ministry of Justice

summarised the problem.

The effect of the multiple publication rule in relation to online material is that each ‘hit’ on a

webpage creates a new publication, potentially giving rise to a separate cause of action,

should it contain defamatory material. Each cause of action has its own limitation period that

runs from the time at which the material is accessed. As a result, publishers are potentially

liable for any defamatory material published by them and accessed via their online archive,

however long after the initial publication the material is accessed, and whether or not

proceedings have already been brought in relation to the initial publication.37

One of the main difficulties for defendants at this point would be mounting an effective

defence and although this could have been a problem for traditional archives the problem is

more pertinent in the era of online communication due to ease of accessibility.

The position in Ireland was thus altered under the Defamation Act 2009. S 11 directs:

33

Duke of Beswick v Harmer [1849] 14 Q.B. 185; Berezovsky v Michaels [2002] 1 L.R. 1003 at 1012 34

O’Brien v MGN [2001] 1 IR 1 35

Wolfsun v Syracuse Newspapers (1938) 279 NY 716; Gregoire v GP Putnam & Sons (1948) 298 NY 119;

Firth v State of New York (2002) NY Int 88. 36

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) Entertainment Law Review 41 37

Ministry of Justice (UK), Defamation and the internet: the multiple publication rule, Consultation Paper

CP20/09, September 16, 2009, p 8 para 3.

11 | P a g e

(1) Subject to subsection (2), a person has one cause of action only in respect of multiple

publication.

(2) A court may grant leave to a person to bring more than one defamation action in respect of a

multiple publication where it considers that the interests of justice so require.

(3) In this section “multiple publication” means publication by a person of the same defamatory

statement to 2 or more persons (other than the person in respect of whom the statement is

made) whether contemporaneously or not.

The provision is somewhat a variant of the single publication rule but it can be distinguished

from the ‘single publication rule’ in that the protection applies to the repetition of the

defamatory statement rather than the reproduction itself, thus allowing publishers a certain

degree of protection where a statement is published across different media and different

forms.38

For example news outlets may publish the same article across a range of platforms.

The Act would therefore seem to address some of the difficulties associated with both the

single publication rule and the position under the common law. The provision provides a

sense of certainty and allows for a limitation period to run.39

It is however important to note

that the section does not prevent a person from taking action against all potential defendants

who were involved in the chain of publication. The section is only concerned with limiting

the plaintiff to one cause of action against any one potential defendant.

Other relevant sections include of the Defamation Act 2009:

Section 38 which specifies ‘For the purposes of bringing a defamation action within

the meaning of the Defamation Act 2009, the date of accrual of the cause of action

shall be the date upon which the defamatory statement is first published and, where

the statement is published through the medium of the internet, the date on which it is

first capable of being viewed or listened to through that medium’.; and

Section 31 (4) (c) which states ‘the court in a defamation action shall, in making an

award of general damages have regard to - ...(c) the extent to which the defamatory

statement was circulated.’40

Interests of Justice?

The provision contained in s 11 (2) requires further examination in the context of online

communication. In the absence of any judicial consideration on the section, it cannot be said

with certainty in what circumstances it might be held that the interests of justice might

require that the plaintiff be permitted to initiate proceedings in relation to multiple

publications. However there has been some academic debate on the circumstances in which

this may arise.

38

Carolan and O’Neill (n 4) at p 197. 39

Karen Muray, ‘Defamation Online after the Defamation Act 2009’ (2010) ILT 28, 187-89. 40

This section seems to reinforce the legislator’s intention for a single cause of action where the plaintiff would

be compensated in damages based on the extent of circulation.

12 | P a g e

Carolan and O’Neill point out that leave might also be available where a defendant has

intentionally or maliciously sought to take advantage of the protection provided by s 11 to

effectively impugn an individual’s reputation after the time limit for the bringing of a

defamation action has expired.41

One particular example of this may be material which is

published on the internet with a view to it being brought to the attention of a wider audience

once a cause of action in defamation is statute barred. They further point out that a strict

application of ss 11 and 38 allowing an individual to republish a defamatory allegation online

in a much more prominent manner would not provide sufficient protection for the

individual’s right to a good name.42

The exception may also be used in a situation where defamatory content appears in an

internet archive. There is developing jurisprudence on internet archives which suggest that

liability may be imposed on those responsible for internet archives where they are informed

of errors in the archives and fail to correct them.43

It is difficult to determine further scenarios without consideration in case law.44

2. Repetition

Liability for publication arises not just where an original defamatory statement is published,

but also where an existing defamation is repeated.45

Therefore anyone involved in the chain

of distribution of publication could be liable. Where repetition of an earlier publication is

concerned, the second publisher is deemed him/herself to be a publisher of the offending

statement, irrespective of whether s/he makes it clear that s/he was simply quoting directly

from the earlier publication.46

This is true even where the second publisher qualifies what

was said or tries to distance him/herself from it, for example by calling for an inquiry or

suggestions the allegations are merely ‘alleged’47

unless the manner in which doubt is

expressed outweighs the sting of the original publication.48

This will be important in the

context of internet publication given the popularity of sharing internet links. Furthermore,

where a person repeats the statement of another and seeks to rely on the defence of truth, that

person must prove the truth of the original statement not merely the fact the statement was

41

Carolan and O’Neill (n 4) p 197. 42

Carolan and O’Neill (n 4) p 198. 43

Flood v Times Newspapers [2010] EWCA Civ 804; Metropolitan International Schools Ltd v Designtechnica

Corp [2010] 3 All ER 548. 44

A further situation where s 11(2) may apply is discussed under the repetition rule see p 14. 45

Lewis v Daily Telegraph Ltd [1964] 2 AC 234 (newspaper saying that the fraud squad were inquiring into the

plaintiff’s company); Stern v Piper [1996] EWCA Civ 1291 [1997] QB 123 (newspaper repeating the sting of an

allegation that was due to be made in an upcoming court proceeding); Truth (NZ) Ltd v Holloway [1960] 1 WLR

997 PC at 1002-1003 (defamatory statement repeated in the context of a newspaper calling an inquiry into a

matter of public interest); Hamilton v Clifford [2004] EWHC 1542 (publicist repeating alleged victim’s

statement that she had been raped); See generally Gatley (n 17) at 6.32 et seq. 46

Lewis v Walter (1821) 4 B & ALd 605; M’Pherson v Daniels (1829) B & C 263; Stern v Piper [1996] EWCA

Civ 1291, [1997] QB 123. 47

Stern v Piper [1996] EWCA Civ 1291, [1997] QB 123. 48

For example in Bik v Mirror Newspapers (1985) NSWLR 173 at 182-183 report completely exonerating the

plaintiff from wrongdoing which had been made against him held incapable of defamatory meaning, even

though it necessarily referred to the charges; Sims v Wran [1984] 1 NSWLR 317; See generally Gatley (n 17) at

6.35

13 | P a g e

made.49

A further point to note is that in general a publisher will not be liable simply for

giving the name of someone who was the unnamed subject of an earlier defamation by

another publisher provided the defamation is not itself repeated.50

Cox and McCullough point out however that the rule should not be taken too far and that the

ultimate question for the courts is whether the publication as a whole conveys a defamatory

meaning or not.51

If the true meaning of the publication read as a whole is not to restate the

original defamation, then the repetition rule does not arise.52

Relevance to Online Communication:

The major challenge for the courts is to determine whether particular types of interactions are

capable of amounting to acts of publication. One interaction which has been the subject of

significant debate is the question of liability for internet links. Hyperlinks are synapses

linking different parts of the web.53

The question for law is whether or not the person doing

the forwarding or creating the hyperlink can himself be regarded as a publisher.

The Supreme Court of Canada in Crookes v Newton54

decided that a hyperlink to defamatory

material by itself should never be seen as publication of the content to which it refers. When a

person follows a hyperlink to a secondary source that contains defamatory words, the creator

or poster of those words in the secondary material is the person who is publishing the

defamatory content. The key finding appears to be that hyperlinks (like references):

Communicate that something exists, but do not, by themselves, communicate content. And

they both require some act on the part of a third party before he or she gains access to the

content. The fact that access to that content is far easier with hyperlinks than with footnotes

does not change the reality that a hyperlink, by itself, is content neutral – it expresses no

opinion, nor does it have any control over, the content which refers.55

The judgment reflects the view that the use of the Internet should be encouraged and the

concern that:

The Internet cannot, in short, provide access to information without hyperlinks. Limiting their

usefulness by subjecting them to the traditional publication rule would have the effect of

seriously restricting the flow of information and, as a result, freedom of expression. The

potential ‘chill’ in how the Internet functions could be devastating, since primary article

authors would unlikely want to risk liability for linking to another article over whose

changeable content they have no control. Given the core significance of the role of

hyperlinking to the Internet, we risk impairing its whole functioning. Strict application of the

49

Stern v Piper [1996] EWCA Civ 1291, [1997] QB 123. In Watkin v Hall [1868] LR 3 (QB) 396, the

defendant had circulated around the stock exchange that the plaintiff, a railway company chairman and investor,

had become financially embarrassed and was insolvent. The defence pleaded justification of the slander on the

basis that such a rumour did exist. It was held that this was no answer to the plaintiff’s case. 50

Astaire v Campling [1965] 3 All ER 666. 51

Cox and Mccullough (n 6) p 29 at 2-18. 52

Jameel v Times Newspaper Ltd [2004] EWCA Civ, [2004] EMLR 31, para 16; Robertson v Newsquest [2006]

Rep LR 124. 53

For a full discussion on traits of hyperlinks see Collins (n 20) p 86 at 6.42. 54

[2011] SCC 47. 55

Ibid para 30.

14 | P a g e

publication rule in these circumstances would be like trying to fit a square archaic peg into the

hexagonal hole of modernity.56

Thus only when the hyperlinker presents content from the hyperlinked material in a way that

actually repeats or adopts the defamatory content should that content be considered as

published by the hyperlinker.57

Obviously this creates a problem where there has already

been a cause of action taken against the original publisher and this may thus be another

situation where s 11 (2) as detailed in the previous section may apply.

This approach of the Supreme Court been criticised in that

(a) it takes something of a “one size fits all” approach to the difficult kinds of hyperlinks

that exist; and,

(b) it may mean that an unscrupulous internet user can avoid the possibility of being sued

for defamation while knowingly undermining a person’s right to a good name by

giving prominence to a defamatory allegation about him or her via hyperlink in

circumstances where the ‘victim’ may have no effective remedy against the author.58

It has been submitted that the approach taken by the dissenting opinion of Deschamps J is

preferable and should be the approach taken by Irish courts.59

She took the view that to

satisfy the first requirement of publication, a plaintiff has to establish on the balance of

probabilities that the hyperlinker performed a deliberate act that makes defamatory

information readily available to a third party in a comprehensible form. An act could only be

deliberate in this context if the defendant played more than a passive instrumental role in

making the information available. She then listed a number of factors when deciding whether

hyperlinked information is readily available. As far as the second component of publication

was concerned, she found that the plaintiff would also have to provide evidence that a third

party received and understood the defamatory information. In her view, this requirement

could be satisfied by producing direct evidence or by inference.

Deschamps J was not convinced by the analogy drawn between hyperlinks and footnotes by

the majority, drawing a distinction between them as follows:

A footnote that does not actually reproduce the information to which the reader is being

referred does not make that information readily available. The reader has to locate and obtain

the document the footnote refers to and then find the information within the document. In

contrast, an automatic hyperlink requires no action whatsoever, while an embedded deep

hyperlink requires only the tap of a finger to gain access to the information. The effort

involved is even less than that of turning a page in a book. Although it is of course true that

hyperlinks are a form of reference, the extent to which they facilitate access and their ubiquity

on the Intranet cannot be overlooked.60

56

Ibid para. 36. 57

The decision may yet be controversial, because there’s existing case-law whereby the act of directing people

to a defamatory publication is itself publication: Hird v Wood (1894) Solicitor’s Journal 234. 58

Brian McMahon and William Binchy Law of Torts (Tottell Publishing 2000) at 34.39. 59

Ailbhe O’Neill, ‘Defamation by Hyperlink and the Publication Rule’ (2012) 35 DULJ 317. 60

[2011] SCC 47, para 97.

15 | P a g e

It seems the ruling is unlikely to be followed in England. Eady J observed as follows in Ali v

Associated Newspapers Ltd.61

Eady J's judgment suggests that the bright-line approach taken

by the majority in Crooks is unlikely to be followed in the English courts.

One point that was briefly addressed in the course of submissions was that of the hyperlink. It

was said that it is so far undecided in the authorities whether, as a matter of generality, any

material to which attention is drawn in a blog by this means should be taken to be

incorporated as part of the blog itself. I suspect that a general rule of thumb is unlikely to be

adopted. Much will depend on the circumstances of the particular case. What I wish to make

clear, however, is that for present purposes I proceed on the assumption that the Irish Times

interview is not to be treated as an integral part of the Claimant's blog.62

The question of whether mere acts of approval are capable of amounting to an act of

publication is one further issue. For example whether a ‘Facebook like’, which may indicate a

person’s approval, is a sufficient action for which someone could be held responsible. The

Supreme Court in the US ruled “On the most basic level, clicking on the ‘like’ button literally

causes to be published the statement that the User ‘likes’ something, which is itself a

substantive statement,”.63

On a basic level this would indicate that such an interaction could

amount to act of publication, however, there is likely to be no hard or fast rules in a similar

fashion to hyperlinks. Returning to the question of whether the repetition conveys a

defamatory meaning or not will be the root of the question.

3. Liability of the original publisher for Republication:

An inter-related question is whether an original publisher of a defamatory statement may, in

certain circumstances, be liable for its foreseeable republication by a subsequent publisher.

Naturally in such circumstances there will be two or more potential defendants and a plaintiff

will thus have the following options:

(i) Sue the defendant both for the original publication and for the republication as

two separate causes of action; or

(ii) Sue the defendant in respect of the original publication only, but seek to recover

as a consequence of that original publication the damage which he has suffered by

reason of its repetition, so long as the damage is not too remote.64

Gatley notes it is clear that the second principle is wider than the first but that this will not

make a difference in the majority of cases.65

It may however be more relevant in the context

of internet publication owing to the fact that particular types of interactions may not be

considered republications. In Slipper v BBC66

the plaintiff was allowed to rely on the effect of

newspaper reviews of a film, which were not republications for which the newspapers were

liable, as damage flowing from the broadcast of the film. The liability of the original

publisher was thus extended for damage. Practical circumstances will therefore dictate which

61

[2010] EWHC 100. 62

[2010] EWHC 100, para 28. 63

< http://blogs.wsj.com/law/2013/09/18/court-facebook-like-is-protected-by-the-first-amendment/> 64

Toomey v Mirror Newspapers (1985) 1 NSWLR 173 at 182-3; Sims v Wran [1984] NSWLR 317. 65

Gatley (n 17) p 202 at 6-36 66

Slipper v BBC [1991] 1 QB 283 CA.

16 | P a g e

defendant or defendants are sued. This may also be helpful in the context of the posts which

may not be interpreted as repetitions for which the subsequent publisher are liable. A plaintiff

can sue an original publisher here for the damage.

Circumstances in which liability may be extended:

In Speight v Gosnay67

where a slander uttered by the defendant to the plaintiff's mother was

repeated to the plaintiff, who in turn repeated it to a person to whom she was engaged,

Lindley L.J. directed

Prima facie, this case appears to be governed by Parkins v. Scott68

which is an authority for

the proposition that in the case of an unauthorised repetition of a slander, it is not the person

who utters the slander but the person who repeats it that is liable69

From the ruling cases can be divided into four classes:

(i) Where the person who repeated the slander was authorised to do so.

(ii) Where the republication was intended.

(iii) Where such republication was the natural and probable consequence of

publication by the initial publisher.

(iv) Where a moral obligation might oblige the repetition of the slander

The Foreseeable Publication Rule:

While whether the publication was authorised or intended will be a question of fact for each

individual case, the other exceptions have proved more problematic.

The general rule at common law is that whereas prima facie the law regards the unauthorised

and voluntary repetition of a defamatory statement as a novus actus interviens, breaking the

chain of causation with the original publisher70

, a publisher will be liable for foreseeable

republication of a statement where the claimant can show that the republication was the

natural and probable consequence of the original publication.71

The question of whether

republication is foreseeable will take into account a number of factors including:

(i) The human propensity to pass on information;

(ii) The salaciousness of the material;

(iii) The means of the original publication

(iv) The legal, social or moral duty to republish the statement

67

Speight v Gosnay (1891) 60 LJQB 231. 68

Parkins v Scott (1862) 1 Hurl & C. 153. 69

Speight v Gosnay [1891] 60 LJOB, 231 at 232. 70

Ward v Weeks (1830) 7 Bing 211; 131 ER 81; Weld Blundell v Stephens [1920] AC 956; Basse v Toronto Star

Newspapers Ltd 4 DLR (4th

) 381; 1983 DLR Lexis 3276; Eyre v New Zealand Press Association Ltd [1968]

NZLR 736. 71

Slipper v BBC [1991] I ALL ER 165; McManus v Beckham [2002] EWCA Civ 939; [2002] 4 ALL ER 497;

Speight v Gosnay (1891) 60 LJQB 231; Ross v Eason (1911) 45 ILTR 89; Shendish Manor v Coleman [2001]

EWCA Civ 913. On the other hand no liability will flow where the republication is neither intended nor

expected nor requested. Coates v Popes (1863) 16 ICLR 156. Moreover a plaintiff needs to rebut the

presumption that unauthorised repetition is not a natural and probable consequence of publication.

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It is worth noting that English law has further developed and has been simplified from the

ruling in Speight in the ruling of McManus v Beckham72

. Laws J. noted

...the root question is whether D, who has slandered C, should justly be held responsible for

damage which has been occasioned, or directly occasioned, by a further publication by X73

Waller J. further noted

...if the defendant is actually aware (1) that what she says or does is likely to be reported, and

(2) that if she slanders someone that slander is likely to be repeated in whole or in part , there

is no injustice in her being held responsible for the damage that the slander causes via that

publication.74

This may be helpful when analysing the decisions of the Irish High Court which expressly

endorsed the ruling in Speight v Gosnay. In Ewins v Carlton75

an English television company

belonging to a group of broadcasters was held to be liable for the republication in the Irish

Republic of a television programme by a Northern Irish television company in the same

group, to which it had supplied the programme. Barr J ruled it was ‘inherently foreseeable’

that supplying such a programme to the NI broadcasters would lead to it being broadcast

widely in Ireland.

In Hunter v Duckworth76

an author who had given a manuscript of a book to an English

publisher in England was held to be liable for the fact that the book was distributed in Ireland.

According to Kelly J, this was an inevitable consequence of the publication of the book in

England, and whereas the author had asked the booked not to be distributed in Ireland, this

was not sufficient to offset the likelihood of distribution. The position in Irish law can be

considered thus:

...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 person was the

natural and probable result of the original publication77

Relevance to Online Methods:

An important question for the law here is the liability of the original publisher for acts of

subsequent publishers of internet links. The question will turn on foreseeability. It has been

submitted that in the case of the internet the risk republication is so enormous that it is

empirically foreseeable.78

Collins notes that the very purpose of publishing material on the

internet will often be to reach a wide and geographically disparate audience.79

It would

follow therefore that in most cases republication will be the natural and foreseeable

consequence of the original publication of the material via the internet. As such to avoid

72

McManus v Beckham [2002] EWCA Civ 939, [2002] EMLR 880, [2002] 1 WLR 2982. 73

ibid para 42. 74

ibid para 34. 75

[1997] IEHC 44; [1997] 2 ILRM 223. 76

[1999] IEHC 56, [2000] I IR 510. 77

Ewins v Carlton [1997] IEHC 44, [1997] 2 ILRM 223 at 230. 78

Cox and McCullough, (n 6) p 35 para 2-31. 79

Collins, (n 20) p 83 at 5.38.

18 | P a g e

liability for republication it would be advisable for those whose content may contain material

that might be defamatory either to put a message on their site prohibiting other people from

republishing the content.

Specifically with regard to email messages, certain email programmes have functions which

enable the user to prevent an outgoing message from being copied and forwarded by the

recipient. Such functions are not however perfect and there are ways in which the recipient

could conceivably further distribute the content. Collins notes that evidence of use of such a

function would seem to be compelling evidence that the original publisher did not intend or

know that the message would be republished and it is likely that republication in such

circumstances is not a natural and probable consequence of the original publication.80

C. Jurisdiction Issue

Details of widespread dissemination and ease of accessibility which this paper has

highlighted from the outset in the case of internet defamation creates an obvious question of

jurisdiction.

The Council Regulation (EC) No 44/2001 of 22 December 2000 is the dominant law with

regard to jurisdiction for litigation of defamation. The object of the regulation which applies

to member states of the EU is to provide for the allocation of jurisdictions and the

enforcement of judgments in actions which have an inter-state dimension and thus avoid

multiplicity of proceedings and the risk of inconsistent judgments in member states.

Article 2 states:

Subject to the provisions of this convention, persons domiciled in a contracting state shall,

whatever their nationality, be sued in the courts of that state ….

This is qualified by an exception in Article 5 which states:

A person domiciled in a contracting state may, in another contracting state, be sued: …

3. In matters relating to tort, delict or quasi-delict, in the courts for the place where the

harmful event occurred; …

The ECJ in two joined cases eDate Advertising GmbH v X and Martinez v MGN Ltd81

considered the issue the exceptions to the rule. The ruling determined that where publication

within the territory of the EU is concerned, the question of where an applicant can sue for

defamation and what damage can be sued for in particular jurisdictions will depend on

whether the impugned statement is published on the internet or not.

Non Internet Publication:

80

Collins, (n 20) p 84 at 5.40. 81

[2011] EUECJ C -161/10, [2012] CEC 837, [2012] EMLR 12, [2012] 3 WLR 227.

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The ECJ considered the interpretation of article 5(3) of the convention in the context of an

alleged newspaper libel in Shevill v Presse Alliance SA82

. The House of Lords referred the

case to the ECJ for a preliminary ruling on questions relating to the proper interpretation of

article 5(3).

The court ruled that in accordance with the rule in s 5 (3) the victim of a libel by a newspaper

article distributed in several contracting states may bring an action for damages against the

publisher either

(i) Before the courts of the contracting state of the place where the publisher of the

defamatory publication is established, which have jurisdiction to award damages

for all the harm caused by the defamation, or

(ii) Before the courts of each contracting state in which the publication was

distributed and where the victim claims to have suffered injury to his reputation,

which have jurisdiction to rule solely in respect of the harm caused in the state of

that court.

The criteria for assessing whether the event in question is harmful is not governed by the

convention but by the substantive law determined by the national conflict of laws rules of the

court provided that the effectiveness of the convention is not thereby impaired.

Internet Publication:

In a joint ECJ ruling eDate Advertising GmbH v X;Martinez v MGN Ltd both involving

internet publications there was a question stated before the ECJ by the relevant national

courts as to whether or not they could legitimately claim jurisdiction over the matters.

In answering the questions the Court gave a detailed analysis of Article 5 (3) noting the

expression ‘place where the harmful event occurred’ in the clause is intended to cover both

the place where the damage occurred and the place of the event giving rise to it. The court

further noted the principles emerging from the Shevill case but felt the principles emerging

from that case were not appropriate to the facts of the present cases.

The placing online of content on a website is to be distinguished from the regional

distribution of media such as printed matter in that it is intended in principle to ensure

ubiquity of that content. That content may be consulted instantly by an unlimited number of

internet users throughout the world, irrespective of any intention on the part of the person

who placed it in regard to its consultation beyond that person’s member state of establishment

outside of that person’s control.

82

(Case C-68/93) [1995] 2 AC 18 (The first plaintiff here, a UK national resident, complained that she had been

libelled in an article in the newspaper ‘France-Soir’ which was published by the defendant company. It is

mainly distributed in France where sales amount to more than 237,000 copies daily but only 230 copies were

sold in England at the time of publication. It was argued on behalf of the defendant that under article 2 of the

convention, the French courts had jurisdiction in the dispute and that the English courts did not have jurisdiction

under article 5(3) of the convention since the ‘place where the harmful event occurred’ within the meaning of

that provision was in France and no harmful event had occurred in England).

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It thus appears that the internet reduces the usefulness of the criterion relating to distribution,

in so far as the scope of the distribution of content placed online is in principle universal.

Moreover, it is not always possible, on a technical level, to quantify distribution with certainty

and accuracy to a particular member state or therefore to assess the damage caused

exclusively within that Member State.83

The court thus took the view that with regard to internet publication the plaintiff retained the

two traditional methods for litigating.

(i) Sue in the jurisdiction in which the publisher is based for all the harm arising

throughout the EC as a result of publication; or

(ii) Sue in any individual jurisdiction for harm arising in that jurisdiction.

The court also provided a third option distinct to internet publication

(iii) Sue in the jurisdiction in which s/he had the ‘centre of his interests’ and in such

circumstances s/he could sue for all the damage suffered as a result of the

publication throughout the territory of the EC.

Worldwide Claim?

In Ewins v Carlton84

the court considered obiter the worldwide publication issue.

However, having regard to the judgment of the European Court of Justice in Shevill v. Presse

Alliance SA to which I have already referred, there is no doubt that a worldwide claim for

damages may be maintained only in an action for libel brought before the courts of the

contracting state where the publisher is established and that, having elected to sue in this

jurisdiction, the plaintiffs' claim for damages is limited to harm done to them in this State on

foot of the libel alleged.85

It would thus be a matter of bringing an action in the state where the publication has occurred

subject to the substantive rules of that state.

83

[2011] EUECJ C -161/10, [2012] CEC 837, [2012] EMLR 12, [2012] WLR 227. 84

[1997] IEHC 44; [1997] 2 ILRM 223. 85

ibid at 230.