Simon says: part 1

We saw last week that relatively limited publication could give rise to a right of action here. Other illustrations show the potential ambit of that.

In Berezovsky v Michaels [2000] 1 WLR 1004 the House of Lords considered jurisdiction in respect of libel claims brought by Mr Berezovsky, a Russian tycoon. He sued in respect of an article in Forbes magazine. At the relevant time the circulation was as follows:

In fact Mr Berezovsky did have significant links with this country both because he had children living and studying here (whom he frequently visited) and also because of the substantial importance of the financial world here. Moreover because what were perceived as his strong links with the Russian government the point taken on his behalf was that if he sued in Russia and succeeded, this would not be seen as a vindication of his reputation in the way victory in the English courts would (because some might assume that his status could possibly have influenced the decision). The tenor of the article, and in view of the court, can be sufficiently summed up in the following extract from the judgement of Lord Nolan. (For those who do not know, Lucky Luciano was a notorious American gangster/Mafia member). "Bearing in mind the colourful and explicit terms of the article - it quotes one American businessman as saying "These guys are criminals on an outrageous scale. It's as if Lucky Luciano were chairman of the board of Chrysler" - it would be hardly surprising if it had a detrimental effect upon the reputations of the plaintiffs and the credit of the companies concerned. But in the international business and political world it is by no means unknown for scoundrels, and even major criminals, to survive, to be accepted, and to prosper. Standards of conduct and of tolerance in such matters vary widely from country to country. This case is solely concerned with the plaintiffs' reputations in England. They seek to have their reputations judged by English standards. The Court of Appeal thought that for this purpose England was the natural forum, and I agree with them. I do not follow the relevance of the judge's remark that the article has "no connection with anything which has occurred in this country." A businessman or politician takes his reputation with him wherever he goes, irrespective of the place where he has acquired it.".

Significantly the court found that if the person alleging defamation wished to sue in respect of such publication as had occurred in England, that the starting point was that England was the proper place for the action to take place. As Lord Steyn put it, "It is also a case in which all the constituent elements of the torts occurred in England. The distribution in England of the defamatory material was significant. And the plaintiffs have reputations in England to protect. In such cases it is not unfair that the foreign publisher should be sued here.". This means that in many such cases proceedings will be able to be brought in England.

In Bin Mahfouz v Ehrenfeld [2005] EWHC 1156 (QB) Mr Justice Eady dealt with a case where the relevant book had not has such been officially published in England but was being sold here through Amazon. Given the serious matters are alleged to be defamatory, which alleged facts the claimant vociferously challenged as untrue, he felt proceedings here were appropriate. Whilst that is understandable from the claimant's point of view, it does mean that there is a risk of libel proceedings ensuing in England even when there is no "official" publication here. Once things are published online, then insofar as downloading of the material is taking place in England, that gives rise to defamation in England since in English law the defamation takes place where the publication is read not where it is created. The effect of these various matters is that anyone publishing material or posting it on the Internet risks libel proceedings in England ensuing. This is why English libel law has such a wide reach.

This does not mean that even trifling events in England will give rise to a claim. In another case, Jameel (Yousef) v. Dow Jones & Co Inc 2005 2 WLR 1614, the defamation claim was struck out. This related to defamation through accessing an article which had been available on the Internet and was then removed. The defendants managed to ascertain that only five persons in England and Wales accessed the article, two of whom were independent and neither knew the claimant nor had any recollection of reading the claimant's name in the article. The other three were lawyers or persons connected to the claimant who had presumably accessed it for or in connection with the claim. The court held that it was required to stop as an abuse of process defamation proceedings that were not serving any legitimate purpose of protecting the claimant's reputation. It further held that since publication within the jurisdiction was minimal and did not amount to a real and substantial tort, the damage to the claimant's reputation was insignificant and the facts did not justify an order prohibiting further publication, against that background the claimant's pursuing the litigation was disproportionate and an abuse of process.

Therefore it is not every claim which could be pursued. However you would not know in advance how many people might read material in this country or how they would access it. Because of transmission of books internationally through Internet retailers, and because much material is posted on the web and accessed through it, anything which was treated as an effect on the ability of scientists to freely criticise others would potentially be of international impact even though it only affected English law. Although some jurisdictions will not enforce defamation awards from England (because the ambit is seen as being too wide) nonetheless many people would be unhappy about either having to defend proceedings in England, or let them be pursued in their absence which would mean that a judgment could be entered against them which could be enforced in England or in some places where they may have assets.

That is why the effect of the ambit of English law is international in scope. Next week we shall look at the specifics of Mr Singh's case.

Michael J. Booth QC