Press Articles & Comment

TALE OF THE TAPE - WHO HAS THE LONGEST REACH?

(Calum Murray, Partner, Kemp Little LLP, appearing in CLSR, April 2005)

Summary of Action

As recent figures from the IMRG[i] reveal the increasing influence of the internet on consumers' Christmas purchasing so a recent decision from the Court of Appeal ("Court") clarifies the increasing application of English libel law to online publications. Rather than festive shopping, however, it was the issue of forum shopping which was addressed by the Court.King v Lewis & Others [ii] is the first English libel case to rule on jurisdiction when websites were the only publication medium. Their Lordships, agreeing with an earlier High Court ruling[iii], found that an individual with a reputation in England could bring libel proceedings regarding global online publications in an English court, where the publishers, their websites and those making the statements were American.

Pre-bout Hype

Florida boxing promoter Don King was involved in US litigation regarding a Lennox Lewis versus Mike Tyson rematch with New York resident Lewis, Lion Promotions LLC Lewis' Nevada promotions company and Lewis' US attorney, Judd Burstein. In discussing that litigation on two Californian served websites, Burstein alleged King had made anti-Semitic remarks toward him and generally behaved as a bigot.

Rounds 1, 2 and 3

King brought initial libel proceedings in England and was granted permission by a court to serve a claim for damages out of English jurisdiction.
Lewis, Lion and Burstein applied unsuccessfully to the High Court (Eady J) to set-aside this permission, claiming that the New York courts were the more appropriate forum to hear the claim.
Permission was then sought and granted to appeal this refusal to the Court

Round 4

It was common ground among the parties that: (i) under English law libel is committed where publication takes place; (ii) each publication generates a separate cause of action; and (iii) text on the Internet is published at the place where it is downloaded. The appellants argued, however, that in choosing to sue on certain of Burstein's allegations in England and leaving others to be litigated in the US , King was adopting the illegitimate approach of "forum-shopping". The Court was asked to consider whether Eady J made any error of law in exercising his discretion, upholding the order for service out.

The Count

Between the appeal hearing and judgment being issued King discontinued the action against Lewis and Lion. Considering Burstein's appeal, the Court set out "four strands in the learning, relevant to the circumstances of this case"[iv] namely :

there was an initial presumption that the courts of the place where the libel is committed are the appropriate forum for trial of that tort. Given the parties' common grounds (as above), if the internet publication was downloaded in England , the forum was the English courts;
this initial presumption is a starting point. The claimant's connection with English jurisdiction and the degree of publication abroad are to be compared. As the balance tilts to a greater connection abroad so the presumption weakens that English courts are the appropriate fora;
in an 'internet case' the court's discretion as to forum is more 'open-textured' than otherwise to reflect the publisher's choice of a global medium as 'a global publisher should not be too fastidious as to the part of the globe where he is made a libel defendant'[v]; and
a court's first consideration must be the issue of appropriate forum and only on reaching this decision should it consider whether there are other reasons of law or process which would require the claim to be heard in an English court.

The Decision

The Court rejected Burstein's appeal and in reaching its decision re-emphasised the words of Lord Templeman in Spiliada Maritime Corp. v Cansulex Ltd'[vi] that "the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge. An appeal should be rare and the appellate court should be slow to interfere".

The Outcomes

Their Lordships also lent weight to a common approach in the Commonwealth when they endorsed the High Court of Australia in Gutnick v Dow Jones[vii]. This endorsement rebuffs any move in English libel law towards a USA-type 'single publication rule' where text is published only once online at the place where it is first posted. Lastly, in passing, the Court noted that straying from the current English laws of libel to create special rules for global internet publications would require global harmonization of libel and defamation laws[viii]. So while there may be some debate as to the reach of either pugilist, it is clear that neither Lewis nor Tyson can, for now, match the reach that English libel laws have over internet publications.

[1]See http://www.imrg.org/imrg/imrgreports.nsf/(httpRecentHotNews DocsForHomePage)/EF53AD9E0C9BFFB280256F8C0043327B

[2][2004] EWCA Civ 1329; [2005] EMLR 45 and at http://www.courtservice.gov.uk/judgmentsfiles/j2844/ lewis-v-king.htm

[3]Don King v Lennox Lewis, Lion Promotions LLC and Judd Burstein [2004] EWHC 168 (QB) and at http://www.bailii.org/ew/cases/EWHC/QB/2004/168.html

[4]per Laws LJ at para 23 King v Lewis & Others [2004] EWCA Civ 1329; [2005] EMLR 45 which in turn refers to Spiliada Maritime Corp. v Cansulex Ltd amongst others

[5]Ibid at para 31

[6][1987] AC 460; [1986] 3 All ER 843

[7]Dow Jones & Company Inc v Gutnick [2002] HCA 56 (10 December 2002)

[8]This supported the Law Commission's position established in its study paper ‘Defamation and the Internet: A Preliminary Investigation' - see http://www.lawcom.gov.uk/files/defamation2.pdf