Defamation forum shopping
Defamation forum shopping explained by specialist online defamation lawyers.
Defamation forum shopping has arisen out of the different treatment of defamation in different countries. In the United States freedom of speech is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws.
It is not surprising that in the United States the burden of proof for defamation is on the Claimant to prove that what was written or said was false. In the United Kingdom the burden of proof is on the Defendant to prove that what was said or written about the Claimant was true. The contrast in where the burden of proof lies between the two countries is just one of the ways in which you can see how different countries balance out freedom of speech and defamation. This difference has led to individuals’ defamation forum shopping in different jurisdictions for the most Claimant friendly jurisdiction to bring an action for defamation a phenomenon called “libel tourism”.
The Internet has blown the realm of defamation forum shopping wide open with instant access, this fact, coupled with broad principles of UK jurisdiction has helped London become the most popular tourist destination for online defamation claims. Ever since the old case of Duke of Brunswick v. Harmer in 1849 which established the multiple publication rule, UK courts have repeatedly held that even where the defendants publication is distributed mainly in another jurisdiction, as long as it is downloaded by a number of readers in the UK then that is enough to constitute a separate actionable publication in the UK.
It is also worth noting that even if the publication has been on the Internet for over a year. The publication starts running again from the next time it is downloaded.
Take for example the Ukrainian businessman and legislator Rinat Akhmetov who brought 2 proceedings in the High Court of Justice, Queens Bench Division in London. In one of the cases, Akhmetov secured a quick apology and a settlement. The other claim was against the internet publication OBOZREVATEL. According to reports Mr Akhmetov won a default judgment of £50,000.00 against this website which only published in Ukranian.
In Berezovsky v Forbes, Russian Oligarch Boris Berezovsky sued American publisher Forbes over accusations of corruption in a magazine article in the UK Mr Berezovsky could do so since there were readers who had downloaded the material in the UK and he had a reputation in the UK. The UK courts do not always take the view that UK has jurisdiction in all such cases. In the case of Dow Jones & Co Inc v. Jameel. A claim for libel was brought against the Wall Street Journal OnLine article report that alleged that financial support had been provided by Saudis to Al-Qaeda, which hyperlinked to a list of alleged donors to Al-Qaeda including the name of Mr Jameel. As only five people had downloaded the article in the UK the Court of Appeal dismissed the claim for negligible publication as an abuse of process.
Even if a Claimant is successful in bringing a claim in the UK for defamation relating predominantly in another jurisdiction, it is not clear whether such UK judgments would be enforceable in any other country, so it is worth checking that the defendants have sufficient assets in the UK to enforce judgment before bringing a claim.