Robbins v Buzzfeed. Irish High Court judgment on A7(2) jurisdiction for online defamation leaves the accessibility v access issue hanging.

I am trying to catch up with blog posts this week and Robbins v Buzzfeed UK LTD (Approved) [2021] IEHC 433 goes back to the start of exam time at Leuven (early June). Claimant resides in California and is domiciled in the United States. Defendant has its registered office in London. The proceedings concern articles which were posted in May, June and November 2019 on the website “BuzzFeedNews.com” which related to claims of sexual misconduct, bullying and harassment, by the plaintiff, of certain employees and attendees at his events, alleged to have occurred between the 1980s and 2009 in the United States and in Canada.

Heslin J reviews the usual CJEU suspects, including Shevill and e-Date /Olivier Martinez, with [36] an interesting discussion of the impact of the applicable law. The substantively applicable law will always of course be a national law (additionally, Rome II exempts defamation from its scope of application). The Irish common law requires publication to at least one other, for there to be defamation. This would, so the argument goes, require claimant to prove the extent of consultation so as to establish jurisdiction. The judge holds that  Shevill is not authority

for the proposition that, in order to successfully invoke jurisdiction pursuant to Article 7(2), a plaintiff has an obligation to prove publication or that, having regard to the facts in the present case,  a plaintiff must prove that articles which he says were defamatory and which were in fact available to readers in this jurisdiction were downloaded or read by specific numbers of persons in this jurisdiction.

However he also holds claimant has proved readership figures of more than 13,000 as at the date the proceedings were instituted. I agree that as the passerelle to applicable law is noli sequitur in the application of A7(2) BIa. However the Mozaik findings in Shevill do mean that if such as here, jurisdiction is only based on locus damni, actual readership does need to be shown. A spanner in those works is CJEU Martinez at 51, where the CJEU uses the term “ accessible”, not the term “ accessed” [42].  In the light of claimant having proven actual downloads, the issue is of no relevance to the case [43] albeit it is yet more discussed and indeed at length, ia [57 ff] with reference to Ryanair v Fleming [2016] 2 IR 254 (a non-BIa case).

[79] a forum non application is of course rejected with reference to CJEU Owusu v Jackson despite a suggestion [83] that the principle in Owusu only applies to A4 BIa domicile jurisdiction.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.12.2.5.

 

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