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Court considers internet defamation and jurisdiction
The question of jurisdiction for the purpose of bringing defamation proceedings is complicated by the online publication of material. A recent case(1) addressed whether Irish courts have jurisdiction to deal with defamation proceedings if the alleged online defamation was published by a party not domiciled in Ireland and if the publication has been accessed by parties outside of Ireland only.
The case involved an appeal to the High Court from circuit court proceedings where the applicant sought an order under the Defamation Act 2009 declaring that certain statements published by the respondent online allegedly questioned the applicant's creditworthiness and were false and defamatory to the applicant. The applicant also sought other orders under the act directing the respondent to publish a correction of the allegedly defamatory statements and prohibiting further publications.
The applicant was a producer of industrial bespoke labels and signage used for identification and health and safety purposes. It was an Irish registered company that had its business premises in Ireland. The respondent was a UK registered arm of a major multinational corporation, with offices and operations globally. Although its domicile was within the European Union, it was outside the jurisdiction of the Irish courts. The respondent published credit information and ratings, available on a subscription basis online. In May 2012 it published an online assessment report on the applicant, which allegedly called into question the applicant's creditworthiness.
The issue before the Dublin Circuit Court was a preliminary question of jurisdiction. The respondent asserted that the relief sought under Section 28(9) of the act is available only in the court of the Irish 'circuit' or district where:
- the statement to which the application relates was published; or
- the defendant, or one of the defendants, resides.
The respondent contended that the publication requirement under Section 28 had not been met in this case. It sought an order under the inherent jurisdiction of the court striking out the proceedings for want of jurisdiction or, in the alternative, an order setting aside service of the summons on the respondent on the basis that the court did not have jurisdiction to hear and determine the applicant's claim under the EU Brussels Regulation (44/ 2001). Article 5(3) provides that a person domiciled in a member state may be sued in respect of certain claims where the harmful event occurred or may occur. The respondent claimed that the only publication of the material had occurred outside the jurisdiction of the court in question, and it therefore had no jurisdiction. Rather, the publication in question was online and therefore the issue of jurisdiction depended on the location of publication.
The court identified three cases – Martinez,(2) Shevill(3) and Coleman(4) – relevant to the consideration of the legal question before it.
In Coleman the court noted that the case involved alleged defamation of the plaintiff by an English newspaper. The defendant brought an application for an order that the court declined jurisdiction pursuant, among other things, to the Brussels Regulation. The Supreme Court acknowledged the complexities of online publication, but - in circumstances where the plaintiff's pleaded case did not refer to online publication, and the plaintiff put no evidence before it of online publication and hits on the website regarding the story - it ruled that it had no jurisdiction to determine the plaintiff's claim.
In Martinez the European Court of Justice (ECJ) proceeded in three stages, which Redmond(5) characterised as follows:
- The court first examined the nature of the online publication and recognised the need for a more adapted response.
- For this purpose, it created a new jurisdictional ground, referable to the location of the centre of interest of the affected party, which would allow for the recovery of all damages.
- Otherwise, it confirmed the existing rules as laid down in Shevill.
Shevill determined that an alleged victim may bring an action in:
- the courts of the state in which the publisher of that content is established, for the entirety of the damage; and
- the courts of each state in which the publication was distributed and where the victim claims to have suffered damage to his or her reputation, for the part of the damage linked to that state's publication.
In considering these tests, the court observed that Martinez clarified that for internet publications, it is sufficient if the content has been posted online or has otherwise been made accessible in the country of receipt. However, the relevant site in this case was a subscription site, and it could not be inferred that publication had occurred, as information is not readily available across jurisdictions for such sites. In Coleman, the court required evidence of internet publication and access from Ireland, but there was only one subscriber – a Belfast company – which had accessed the material.
Based on Martinez, the court felt it relevant to consider the centre of interest of the injured party, which was strongly relied on by the applicant. However, the court stated that the centre of interest test can be applied only once it is established that the material has been published and read in Ireland. The court concluded that this approach is consistent with Shevill, which acknowledges the two steps of publication and receipt of communication. In this case, the only publication was in Belfast and there was no proof that the material had been accessed by subscribers in Ireland.
Ultimately, the court felt that:
"for the centre of interest test to apply it must also be established that material was published and read in Ireland. Based on the test in Coleman and the fact that the subscription site is note readily accessible it cannot be said that the centre of interest can apply where the Shevill rules acknowledge the two steps of publication and the place of receipt of communication."
The court therefore ruled that publication which fulfilled the requirements of Section 28 had not been made out, and that the respondent's appeal must succeed.
The case highlights that jurisdiction is an important issue for defamation proceedings and should be carefully considered where there is any cross-jurisdictional aspect. Moreover, it clarifies that for alleged online or internet defamation in Ireland, evidence of online publication may be insufficient; depending on the circumstances it may also be necessary to establish proof of access of the relevant material from Ireland. Accordingly, a prospective plaintiff in Irish defamation proceedings should consider this before commencing proceedings.
(1) CSI Manufacturing Ltd v Dun and Bradstreet  IEHC 547.
(2) EDate Advertising GmbH v X and Martinex v MGN Limited  QB 654.
(3) Shevill, Ixora Trading Inc v Presse Alliance SA (C-68-93) ECR  I-00415.
(4) Coleman v MGN Limited  IESC 20.
(5) Redmond, "The ECJ EDate Decision: A Case Comment" (2011) Yearbook of Private International Law, Volume 13, pages 493 to 506.