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‘LIBEL TOURISM’ AND CONFLICT OF LAWS

Published online by Cambridge University Press:  27 January 2010

Trevor C Hartley
Trevor C Hartley
Affiliation:
Professor of Law Emeritus, London School of Economics. Email: [email protected].
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Abstract

This article considers the problem of ‘libel tourism’ (forum shopping in transnational libel cases) from the point of view of English and EU law (both relevant in certain situations). If proceedings are brought in a forum having no real connection with the case, and if the lex fori is applied, free speech in other countries could be undermined. This is particularly a problem where the case is brought in England, because of the pro-claimant slant of English libel law. The article notes when English conflicts law is applicable and when EU conflicts law is applicable, and explains the English and EU law regarding choice of law, jurisdiction and forum non conveniens in order to assess whether there is a genuine problem. It concludes that there is, particularly with regard to the Internet. Possible solutions are suggested.

Type
Article
Information
International & Comparative Law Quarterly , Volume 59 , Issue 1 , January 2010 , pp. 25 - 38
Copyright
Copyright © 2010 British Institute of International and Comparative Law

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References

1 http://en.wikipedia.org/wiki/Libel_tourism (last visited on 9 December 2008).

2 See, for example, Hansard col 69 WH (17 December 2008); D Kennedy, ‘MPs Accuse Courts of Allowing Libel Tourism’ The Times (London England 18 December 2008) 27; Editorial, The New York Times (New York USA 26 May 2009). Libel tourism is being considered by the Culture, Media and Sport Committee, a standing committee of the House of Commons chaired by John Whittingdale MP.

3 The leading treatment of the subject in England is R Morse, ‘Rights Relating to Personality, Freedom of the Press and Private International Law: Some Common Law Comments’ (2005) 58 Current Legal Problems 133. See also R Balin, L Handman and E Reid, ‘Libel Tourism and the Duke's Manservant—American Perspective’ [2009] EHRLRev 303; Garnett, R and M, Richardson, ‘Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the (American) Right to Free Speech in Cross-Border Libel Cases’ (2009) 5 JPIL 471Google Scholar.

4 Duke of Brunswick v Harmer (1849) 14 QB 185.

5 For this reason, the European Court of Justice did not use the words ‘publish’, ‘publication’, etc. in the Shevill case (discussed below, section III.D.1).

6 Keeton v Hustler Magazine, Inc 465 US 770; 104 S Ct 1473; 79 L Ed 2d 790 (S Ct 1984).

7 S 9(3), 10 and 13.

8 The Rome II Regulation, EU Regulation 864/2007 [2007] OJ L 190/40.

9 art 1(2)(g).

10 Dicey, Morris & Collins, The Conflict of Laws (14th edn, Sweet and Maxwell, London, 2006), by Sir Lawrence Collins with specialist editors (hereinafter ‘Dicey, Morris & Collins’) Rule 235, pp 1957 ff.

11 ibid p 1960, text to, and cases cited in, n 2.

12 This is unfortunate. It would be better if all instances of publication were taken together in order to choose the applicable law, even if the claim was limited to a remedy for publication in England. Perhaps one day the Supreme Court (formerly the House of Lords) will be able to bring this about. It would require a further exception to the double-actionability rule in addition to those in Boys v Chaplin [1971] AC 356; [1969] 3 WLR 322; [1969] 2 All ER 1085 (HL) and Red Sea Insurance Co. Ltd v Bouygues SA [1995] 1 AC 190 (PC), both of which apply only where the tort is committed outside England.

13 In this article, ‘domicile’ is used in the sense in which it applies for the purpose of jurisdiction under the Brussels I Regulation. See The Civil Jurisdiction and Judgments Order 2001, SI 2001 No 3929, para 9 (individuals) and the Brussels I Regulation, art 60 (companies). This concept is not very different from residence, or domicile as applied in the United States. It is much more flexible than the traditional English concept of domicile.

14 The position is the same when the defendant is domiciled in a State Party to the Lugano Convention (Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988). The original text may be found in [1988] OJ L 319, 25. The Parties to the Lugano Convention have fluctuated over time; at present the non-EU Parties (often referred to as the ‘Lugano States’) are Iceland, Norway and Switzerland. Henceforth, references to a Member State of the EU should be regarded as including references to a Lugano State.

15 Regulation 44/2001 [2001] OJ L 12/1.

16 Case C-68/93 Shevill v Presse Alliance SA [1995] ECR I-415. In late 2009, the German Bundesgerichtshof made a reference to the European Court in a case in which further issues arose. In time, we can expect a further ruling.

17 At the time, the relevant provision was art 5(3) of the Brussels Convention, which was expressed in identical terms.

18 If there was no publication in England, the action would be stayed on the ground of forum non conveniens. If there was such publication, the same thing would probably happen unless the claim was limited to damages resulting from publication in England.

19 Case 21/76 Bier v Mines de Potasse [1976] ECR 1735.

20 If publication in England was minimal, the court might strike out the proceedings for abuse of process: Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946; [2005] 2 WLR 1614 (CA). This remedy would probably be applicable even if the English court had jurisdiction under EU law, since it is not based on jurisdictional considerations.

21 Forum non conveniens cannot apply where the jurisdiction of the English court is derived from EU law: Case C-281/02 Owusu v Jackson [2005] ECR I-1383; [2005] QB 801; [2005] 2 WLR 942; [2005] 2 All ER (Comm) 577; [2005] 1 Lloyd's Rep 452 (ECJ).

22 King v Lewis [2004] EWCA Civ 1329 (CA).

23 Berezovsky v Michaels [2000] 1 WLR 1004; [2000] 2 All ER 986 (HL). See per Lord Steyn [2000] 1 WLR 1012–1013.

24 Persons in the entertainment industry would have to show that they had fans in England or that their work was marketed there.

25 King v Lewis [2004] EWCA Civ 1329 (CA). A similar rule applies in Australia: Dow Jones & Co Inc v Gutnick (2003) 210 CLR 575; 77 ALJR 255; 194 ALR 433 (High Court of Australia).

26 In the case of France Soir, it is http://www.francesoir.fr/. So if the Shevill case occurred today, it would not be necessary to show that any copies of the newspaper had been distributed in England.

27 For the US, see http://www.Amazon.com; for England, see http://www.Amazon.co.uk; for France, http://www.Amazon.fr.

28 King v Lewis [2004] EWCA Civ 1329 (CA). In this case, the claimant, Don King, was an American boxing promoter, who had promoted boxing matches in England. This was held to be sufficient.

29 Bin Mahfouz v Ehrenfeld [2005] EWHC 1156 (QB).

30 http://www.ABCNews.com.

31 Nevertheless, she was subsequently able to bring quite lengthy proceedings against Mahfouz in New York, a jurisdiction where attorney fees do not seem to be any lower than in England. See Ehrenfeld v Mahfouz (n 34).

32 In fact, Ehrenfeld did not obey the judgment, and no attempt was made to enforce it in the United States, where it would almost certainly have been refused recognition. So Ehrenfeld and her publisher were able to continue marketing the book there. The position would have been different, however, if she or her publisher had assets in the United Kingdom (or another EU Member State), which would be the case with most major American publishers. In any event, it is hardly a recommendation for a ground of jurisdiction that it does no harm as long as the resulting judgments are not enforced in other countries.

33 Information supplied at a conference on libel tourism held at the London School of Economics on 20 January 2009; see also ‘Are English Courts Stifling Free Speech around the World?’ The Economist, 8 January 2009.

34 Ehrenfeld v Mahfouz 9 NY 3d 501; 881 NE 2d 830; 851 NYS 2d 381 (2007).

35 Laws of New York, 2008, Chapter 66; codified at CPLR §§ 302(d) and 5304(b)(8).

36 The constitutionality of this jurisdictional provision may be open to question.

37 Illinois Libel Terrorism Protection Act, SB 2722, PA 95-865 (effective 19 August 2008), codified at 735 Ill. Comp. Stat. 5/12-621(b)(7).

38 Similar, but not identical, bills were introduced in the House of Representatives (HR 5814) on 16 April 2008 and the Senate (S 449) on 13 February 2009. These bills have been referred to the Committee on the Judiciary.

39 Defined, in slightly different terms, in s 6(5) of the House bill and 5(6) of the Senate bill.

40 For this purpose, it is reasonable to regard the United States as a single unit, rather than to look at the individual US state in question, since the protection of free speech, being largely a matter of constitutional law, is a national concern. If individual states gave even greater protection, a further analysis at the state level might be necessary.

41 However, there may be other reasons for a change. Imagine, for example, the case of an English resident who goes to the United States and speaks words there that allegedly defame an American resident. The words find their way on to the Internet. The American brings libel proceedings in England, limiting his claim to damages for publication in England via the Internet. It would be unjust to the defendant for the English court to apply (only) English law in this situation.

42 Treble damages, however, are another matter. Legislation along these lines would invite retaliation. The vehicle for such retaliation is already at hand. Section 6 of the Protection of Trading Interests Act 1980 contains a ‘claw-back’ provision allowing a person who has been required to pay treble damages in another country to claim them back from the person to whom they were paid. Any such judgment would be recognized in the European Union, the Lugano States (see note 14, above), and Australia. For the European Union, see the Brussels I Regulation, Chapter III; for the Lugano States, the equivalent provisions of the Lugano Convention (n 14); for Australia, the Foreign Proceedings (Excess of Jurisdiction) Act 1984, s 12.

43 See (n 8).

44 The Commission was supposed to report by the end of 2008: see art 30(2) of the Regulation. This did not happen and it is unlikely that a solution will be found in the near future.

45 See (n 15).

46 See text to n 16.

47 ‘Non-contractual obligations’ is the term used in EU law. Its main component is tort, though it covers other matters as well.

48 This is the definition used in the Rome II Regulation for the purpose of excluding libel actions. See (n 8) and the text thereto.

49 See text to n 20–23 above.

50 Berezovsky v Michaels [2000] 1 WLR 1004; [2000] 2 All ER 986 (HL) (especially per Lord Steyn [2000] 1 WLR, 1012–1013); King v Lewis [2004] EWCA Civ 1329 (CA).

51 See text to n 18 and n 19.

52 See ‘Jack Straw Pledges Action to End Libel Tourism’ The Sunday Times, 22 November 2009, also available on http://business.timesonline.co.uk/tol/business/law/article6926997.ece (last visited on 9 December 2009).

53 Ministry of Justice, ‘Defamation and the Internet: The Multiple Publication Rule’, Consultation Paper CP 20/09, 16 September 2009. At present, the limitation period starts anew for each new ‘publication’.

54 Keeton v Hustler Magazine, Inc 465 US 770; 104 S Ct 1473; 79 L Ed 2d 790 (S Ct 1984).

55 section VII.A.

56 section VII.B.2.