Litigation Update: Publisher Feels Irish Defamation Heat
09 December 2014
The proceedings which Justin Timberlake and his wife Jessica Biel settled recently in the High Court is one of many recent high profile defamation cases which have come before the Irish Courts. Aside from the celebrity factor, which naturally drew attention, this case is interesting from the perspective of choice of jurisdiction. Heat magazine, which published the article, the subject matter of the proceedings, was distributed not just in Ireland but across Europe. As neither of the parties is resident in Ireland, why did they choose to issue proceedings here?
Under the Brussels I Regulation a person can be sued for defamation in the jurisdiction where the “harmful event” occurs. The application of this rule is somewhat problematic for defamation, particularly where publication on the internet can involve publication in every country in the world. So where exactly does the “harmful event” occur?
In Shevill v Presse Alliance SA the European Court of Justice held that where defamatory material is distributed in a number of Member States, the courts of the State in which the defamatory material was distributed, and in which the victim claims to have suffered injury to his reputation, are the courts which should assess the libel committed in that State. This position was followed by the Irish Supreme Court in 1997 in Murray v Times Newspapers Limited. Both Mr Timberlake and Ms Biel clearly have high profiles in Ireland, and the magazine’s extensive distribution in Ireland meant their reputations arguably suffered damage here, meaning that the Irish Court’s were an appropriate venue for the proceedings.
However, the distribution of Heat magazine was equally extensive in other jurisdictions with potentially larger readerships and where damage to their reputations could arguably lead to more serious consequences. So why Ireland? Potentially one reason could be what are perceived as more liberal and pro-plaintiff defamation laws.
Under Section 1 of Defamation Act 2013 (UK), a claimant must show that “serious harm” has been caused to their reputation. By contrast, under Section 2 of the Defamation Act 2009 (Ireland), a defamatory statement is one that “tends to injure a person’s reputation in the eyes of reasonable members of society”, which is probably a lower threshold for a claimant to overcome in establishing defamation.
In the UK, under its new libel laws, cases are not heard by a jury unless a court orders otherwise, reversing the previous presumption. This is expected to lead to more measured awards being made. In Ireland a right to a trial by jury in defamation cases still exists.
While Ireland may therefore be a more attractive destination for ‘libel tourism’, it needs to be borne in mind where there have been multiple publications of defamatory material in many jurisdictions, the extent of the publication in Ireland should be carefully considered as any damages awarded will only be in respect of the Irish publication. Damages relating to the worldwide publication will generally not be considered, unless the publisher is established and resident in Ireland, as noted in the decision of Barr J in David Ewins v Carlton UK Television Limited.
London has long been considered the world’s libel capital. However, under the UK’s new Defamation Act, anyone seeking to succeed with defamation proceedings will have to prove that the UK “is clearly the most appropriate place in which to bring an action in respect of the statement”. This, coupled with the more stringent test of “serious harm” and the fact that more cases will now be heard by judges sitting alone, is likely to significantly curtail the number of foreign individuals and entities who might previously have chosen London as the forum in which to commence defamation proceedings.
On the basis of what could now be considered more plaintiff-friendly laws in Ireland and also generally lower costs, it will be interesting to see if Ireland takes over London’s mantle as the jurisdiction of choice for international defamation claims.
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The content of this article is provided for information purposes only and does not constitute legal or other advice. Mason Hayes & Curran (www.mhc.ie) is a leading business law firm with offices in Dublin, London and New York.