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21st December 2020

Publication cases post Brexit

By Andrew Stephenson & Sarah Daniel

Ominously, in his recent judgment in Napag Trading Ltd & Ors v GEDI Gruppo Editoriale S.p.A & Anor [2020] EWHC 3034 (QB) Jay J noted:

“Only the Second Defendant saw fit to raise a forum non conveniens challenge in advance of 1st January 2021 and the relevant EU regulation no longer applying…I refuse this application without prejudice to the Second Defendant’s ability to restore it at an appropriate time should the need arise.”

Although transitional provisions maintain the status quo regarding cases commenced in the UK before 1 January 2021, it seems that there are some who can’t wait to challenge in the English courts principles derived from the Brussels Regulation and European Court of Justice rulings (CJEU).

Andrew Stephenson and Sarah Daniel of Hamlins LLP explore the potential impact of Brexit on publication cases by reference to four leading CJEU judgments: Shevill v Press Alliance, Owusu v Jackson, eDate Advertising v X and Bolagsupplysningen v Svensk Handel.

The 1968 Brussels Convention (now in the form of the Recast Brussels Regulation) sought to lay down a framework of rules for the recognition and enforcement of judgments in civil and commercial cases, with an emphasis on predictability and legal certainty. The UK acceded to the Convention in 1978 and it became part of UK law by virtue of the Civil Jurisdiction and Judgments Act 1982, with rulings on its interpretation by the CJEU binding on the UK courts.

The plan is (or was) that on Brexit, the UK would sign up to the Lugano Convention, which governs the relationship of its existing member states, Switzerland, Iceland and Norway, with the EU. The UK’s application to join was lodged in April 2020, but has yet to be accepted by the EU. If and when it is approved, there will be a 3-month delay before it comes into effect, to allow time for objections from other contracting states. The essential difference from the Brussels Regulation is that under the Lugano Convention decisions of the CJEU are not binding. The courts of the non-EU Member States are instead required to “pay due account” to the case law of the CJEU on the Brussels Regulation.

Since its inception the Brussels Regime has provided, as the primary, general rule, that legal proceedings should be brought in the country of the defendant’s domicile. The secondary, special rule, which applies in cases of tort such as defamation and breach of privacy, is that alternatively proceedings may be brought in the country whether the harmful event occurred.

In Shevill (1995) the CJEU ruled that “the victim of a libel by a newspaper article distributed in several Contracting States may bring an action for damages against the publisher either 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 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 the court seised.

On this basis the claimant, a UK national, was permitted to proceed with an action for libel in England against the publishers of France Soir in respect of the distribution in England of 230 copies of the newspaper out of a total circulation of over 250,000, with her claim limited to the publication within the jurisdiction of England and Wales. Although this ruling may appear to be an instance of the tail wagging the dog, were a similar set of facts to arise today, certainly as a result of the serious harm test introduced by s.1 Defamation Act 2013, if not earlier under common law, the English claimant would not succeed unless she were able to show that the offending words had been read within the jurisdiction of the English court and that this had caused, or was likely to cause, serious harm to her reputation.

Owusu (2005) concerned proceedings for breach of contract and negligence brought in England by an English-domiciled claimant in respect of a very serious injury he had suffered in a diving accident which occurred at a holiday resort in Jamaica. The first defendant, who had rented a villa to the claimant, was domiciled in the UK; the other five defendants were all Jamaican companies. Although there can be little doubt that left to its own devices the English court would have considered Jamaica to be the more appropriate forum to hear the case – it was the place where the harm was suffered, where the main witnesses lived and where the court was best placed to decide on the facts – the CJEU ruled that because one defendant was domiciled in England, the English court had no discretion but to hear the case.

This principle is incorporated into the current Brussels Regulation at Article 8 which provides that “A person domiciled in a Member State may also be sued (1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings…”

The importance of Owusu to publication cases may be seen in circumstances where, for example, a foreign newspaper publishes a defamatory article under the by-line of a London-based correspondent, a situation which occurred in the 1987 libel action brought by a former senior Royal Navy Officer Martin Parkard in respect of allegations published in a Greek newspaper which resulted in an English jury awarding £450,000 damages, a record at the time. Applying the rationale of Shevill, a claimant domiciled anywhere in the world would be entitled as of right to bring defamation proceedings in England claiming damages in respect of all harm suffered as a result of publication anywhere in the world, provided that at least one of the defendants was found to be domiciled in England.

In eDate Advertising (2011)  the CJEU recognised that the ubiquity of content placed online and the technical difficulty in quantifying harm caused exclusively within one member state meant that a distinction needed to be drawn in principle from the position regarding regional distribution of printed material. It decided that the criteria identified in Shevill must therefore be adapted in such a way that a person who has suffered an infringement of a personality right by means of the internet may bring an action in one forum in respect of all of the damage caused, depending on the place in which the damage caused in the European Union by that infringement occurred. Given that the impact which material placed online is liable to have on an individual’s personality rights might best be assessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the objective of the sound administration of justice…”

Accordingly the CJEU held that in relation to internet publication a claimant has three options. Proceedings may be brought in respect of all the harm suffered as a result of the publication either before the courts of the member state where the defendant is domiciled, or before the courts of the member state in which the claimant has his “centre of interests” which will usually (but not necessarily) be the place where the claimant habitually resides. The third alternative, as with Shevill, is for the claimant to confine his/her/its claim to the harm suffered as a result of publication within a single member state in which proceedings are brought.

The CJEU developed these principles further in Bolagsupplysningen (2017) which concerned a claim brought by an Estonian company before the Estonian courts seeking the removal of and damages for the publication of material published online by a Swedish trade association. The claimant company claimed as a result of the publication to have suffered harm in terms of loss of business in Sweden.

It was held that an application for the rectification of online material could be brought only before the courts of a member state with jurisdiction to rule on the entirety of the harm suffered, that is either the courts of the defendant’s domicile or the courts of the claimant’s centre of interests. With regard to a corporation’s centre of interests, the CJEU indicated that although this may be the country of its registered office, it was more likely to be the country where, if different, its main business activities were conducted.

The CJEU judgments in eDate Advertising and Bolagsupplysningen have been directly applied in two English court rulings. In Wafic Said v Group L’Express (2018) it was held that a claimant could have only one centre of interests, and it was found on the facts that the claimant’s extensive personal connections with England were not sufficient to displace the presumption that his place of habitual residence, Monaco, was the centre of his interests. Therefore, although his claim for damages in respect of harm suffered within the jurisdiction of the English courts was allowed to proceed, his claim for an injunction against the French publisher was dismissed.

More controversially, in Napag Trading v Gedi Gruppo Editoriale (2020) it was agreed between Counsel for the parties and accepted by Jay J. that even if a claimant’s centre of interests were found to be England, it would still be necessary “as a prior condition” for the claimant company to establish that “there has been publication in England and Wales and that the First Claimant has suffered “serious harm” (including “serious financial loss”) here, both being matters of domestic law.”  However, the facts of the CJEU case cited in support of this proposition, Marinari v Lloyds Bank (1995), concerned a series of events which took place in Manchester, culminating in the claimant’s arrest by the police in England, very different from the issues which arise from world-wide on-going damage claimed to have been caused by publication of material on the internet. The s.1 Defamation Act 2013 test of serious harm is not expressed to be confined to harm suffered as a result of publication in England and Wales, and it would appear to be inconsistent with Owusu, eDate Advertising and Bolagsupplysningen for the statute to be so interpreted.

Amending legislation

As matters stand, the amending legislation required by Brexit will come into force on 1 January 2021. Its principle direct effect on publication cases will be:

  1. That permission of the English court will be required in order to serve legal proceedings on defendants in member states of the EU and the Lugano Convention, as is currently the position with regard to defendants in other countries.
  2. The provisions of s. 9 Defamation Act 2013 will be extended so that that the English court does not have jurisdiction to hear a defamation case against a defendant domiciled anywhere outside the UK “unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate placein which to bring an action in respect of the statement.

It has been usual practice, even before Shevill, for claimants who bring defamation proceedings in England against foreign publishers to limit the claim for damages to publication within the jurisdiction of England and Wales. The point was made by Ackner L.J. in The Albaforth [1984] 2 Lloyds Rep 9 that “…the jurisdiction in which a tort has been committed is prima facie the natural forum for the determination of the dispute.” In Schapira v Ahronson [1999] EMLR 735 Phillips L.J. described it as an “uphill task” for an Israeli newspaper to try to persuade the court that Israel was clearly the more appropriate forum to determine an action for defamation brought in England by an English domiciled claimant whose claim was confined to publication within England and Wales. Lord Hoffmann, however, in Berezovsky v Michaels (2001) made clear that the formulation of the claim was but one of the factors to be taken into account by the English court in deciding upon the appropriate forum.

With regard to the need for a claimant to obtain the court’s permission to serve proceedings outside the jurisdiction it has long been understood and accepted that a defamation claimant must confine his/her/its claim to publication within England and Wales. This is said to be the effect of the “rule in Diamond v Sutton.”

The 1866 Court of Exchequer judgment in Diamond v Sutton concerned an action for defamation brought in England against a Jersey-based defendant. Under the procedural rules in existence at the time, proceedings could be brought against British subjects resident outside the jurisdiction provided that the court was satisfied that “there is a Cause of Action, which arose within the Jurisdiction…” The Court held that, whilst it was permissible for the claimant to sue the defendant in England for acts committed within the jurisdiction, it was an abuse of the process to include in the same action matters for which the rules did not give the claimant power to sue. The court likened the situation to where a claimant might bring the defendant before the English court “on a bill of exchange, and then sue him for an assault in Jersey.”

Exactly how and when this apparently straightforward judgment acquired the status of a “rule” peculiar to publication cases is a mystery. Its existence, however, was accepted by Lords Steyn and Hope in Berezovsky v Michaels. Lord Steyn in his judgment explained that its effect was that “a plaintiff who seeks to serve out of the jurisdiction in respect of publication within the jurisdiction is guilty of an abuse if he seeks to include in the same action matters occurring elsewhere.” Lord Hope in his judgment went further, stating that “The rule which applies to these cases is that the plaintiff must limit his claim to the effects of publication in England” (our emphasis). It is not apparent how such a hard and fast rule can be said to be derived from either Diamond v Sutton or any other cited authority.

Although the statements of Lord Steyn and Lord Hope were plainly obiter – in accordance with the usual practice Boris Berezovsky’s claim had been confined to publication within the jurisdiction of the English court – they have since been quoted as confirmation of a strict rule that it would be an abuse for any claimant seeking permission of the English court to serve defamation proceedings outside the jurisdiction not to limit his/her/its claim to publication within the jurisdiction of the English court.

The rule in Diamond v Sutton, if it exists, would require the English courts with effect from 1 January 2021 to adopt a position fundamentally at variance with the Brussels Regime and the rationale of the judgments in Owusu, eDate Advertising and Bolagsupplysningen. Unlike our European neighbours, those domiciled in England, or whose centre of interests lies in England, when required to serve proceedings out of the jurisdiction will be forbidden from bringing a claim for damages against any EU-domiciled defendant in respect of defamatory material published anywhere other than in England, and will have no means through the English courts to seek the rectification or removal of offending material posted on the internet outside England. Their only means of redress would be to bring proceedings in the EU state in which at least one of the defendants is domiciled.

Helpfully in November this year Saini J in Qatar Airways Group v Middle East News at paragraphs 263-306 of his judgment undertook a timely, but long overdue, examination of the rule in Diamond v Sutton. He concluded that “there is no freestanding rule of substantive law which in and of itself makes it an abuse to sue for malicious falsehood in respect of publications outside the jurisdiction.” Saini J was careful to emphasise that nothing in his judgment was intended to apply to defamation, but it is not apparent why his thorough analysis and the conclusion he reached should not equally apply to all publication cases.

Conclusion

Over the last four decades English law has developed in conformity with the Brussels Regime. Decisions of the CJEU have regularly found their way into English jurisprudence. An advantage of the Brussels Regulation is that its rules regarding jurisdiction and the enforcement of judgments are intended to provide a high degree of predictability and legal certainty and to minimise the possibility of irreconcilable judgments between member states. Against this, English law (with the exception of the anomalous “rule” in Diamond v Sutton) has traditionally preferred to adopt a more flexible approach which, with regard to jurisdiction, requires the court to take into account all the infinitely various circumstances of a particular claim in order to determine where in the world it is most appropriate for the case to be tried “in the interests of all the parties and the ends of justice” (per Lord Hope in Berezovsky v Michaels). Each case must be considered on its own particular facts, a point emphasized by Lord Hoffmann in Berezovsky v Michaels where he said “All the cases cited are in some respects similar and in some respects different. But, my Lords, I protest against the whole exercise of comparing the facts of one case with those of another.

The question which arises with effect from 1 January 2021 will be the extent, if any, to which judgments of the English courts based on, or influenced by the Brussels Regime, will retain any usefulness as precedents. By way of example, once the rule that a claimant is entitled as of right to bring proceedings in the country of a defendant’s domicile no longer applies, would it be open for an English newspaper which publishes on its website an article accusing a Hollywood celebrity of some serious allegation such as rape or wife-beating to contend that in the interests of justice the case should be tried in the US with US law applying? Would it be open to a French publisher to contend before an English court, even where the clamant is domiciled in England, or has his/her/its centre of interests in England, has limited the claim to publication within England and is able to produce evidence likely to satisfy at trial the test of serious harm, that in the interests of justice the more appropriate forum for the trial would be France? The answer to these questions, as matters stand, would appear to be yes, but the outcome of any application will depend on all the circumstances.

The advantage of flexibility is that it allows a court to weigh in the balance competing considerations in order to try to arrive at the most appropriate evidence-based resolution of the issue before it. It also has financial advantages for the legal profession in that it provides scope for argument in each case, and where there is scope, the lawyers will surely argue. The disadvantages include the uncertainty of outcome in an expensive and time-consuming legal process. There is a great benefit in having clear, well-defined laws so that parties – and prospective parties – to litigation will know what their rights are, and how and where to enforce them, before they are told by the Judge, Court of Appeal or Supreme Court.

In eDate Advertising and Bolagsupplysningen the CJEU grasped the nettle of internet publication which knows no territorial boundaries when it ruled that applications for rectification and removal of offending material could be brought not only where the defendant was domiciled but also in the courts where the claimant has his/her/its centre of interests. Almost invariably such cases will engage ECHR Article 8 (privacy, personality) and Article 10  (freedom of expression) rights, whilst any legal proceedings will engage Article 6 (fair trial).  Were English law to deny those domiciled, or those who have their centre of interests, in England the same rights and means of remedy as are available to those within EU member states, it will be open to challenge before the European Court of Human Rights.

To avoid a free-for-all post 1 January 2021 it will surely be preferable for the English courts to continue to take full account of both the provisions of the Recast Brussels Regulation and decisions of the CJEU, especially insofar, as with Shevill, Owusu, eDate Advertising and Bolagsupplysningen, they have already entered English case-law. In practical terms, the effect would be that, instead of focusing only on the facts of a particular case, the court would also pay regard to the strong public interest of there being clearly defined rules for deciding where a case should be tried.

Andrew Stephenson has advised in numerous cases involving jurisdiction, including Packard v Eleftherotypia, Schapira v Ha’aretz and Berezovsky v Forbes.

Publication cases post Brexit

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