Kumlin v Jonsonn. Judge dismisses jurisdiction for most of Swedish businessman’s libel claim, defusing what is said to be a SLAPP suit.

Kumlin & Anor v Jonsson & Ors [2022] EWHC 1095 (QB) disciplines forum shopping, in this case libel tourism, in a claim that is considered a SLAPP: a Strategic Lawsuit against public participation.

First Claimant is an entrepreneur, businessman and investor in sustainable and ethical business ventures, resident in Monaco, with business interests in the UK including in the Second Claimant, of which he is the founder, Chairman and Chief Executive Officer. He is a Swedish citizen. Second Claimant is a public limited company registered in England and Wales. Claimants’ case is that between 29 September 2020 and 2 November 2020 the Defendants, or some of them, all of whom are Swedish, published or caused to be published on the Website eight articles concerning the Claimants. There was further publication via Facebook, Twitter, etc, where links to the Articles were posted. 

The Articles are in Swedish. Knowles J [30] advances the reasoning, proposed by defendants, that jurisdiction under any of the gateways as a result of A4 BIa, locus damni or locus delicti commissi (A7(2) BIa per CJEU Bier and Shevill), or centre of interests (A7(2) BIa, per CJEU eDate and Bolagsupplysningen) only exist to the degree the case is actually actionable in those cases which, he submits, requires reference to the domestic laws of those Member States (e.g. a minimum ‘publication’ threshold). I believe this is incorrect: jurisdiction and actionability are not the same. While lex fori on threshold issues will have an immediate impact on the practical reality of a claim, it does not stand in the way of principled jurisdiction under BIa, which exists without reference to national laws.

The judge refers to much CJEU and E&W authority, all of it discussed on this blog, most recently the Court of Appeal in Mincione.

Knowles J’s discussion eg [69] ff of the intensity of publication etc required, under residual double actionability rules, in my view is a threshold question and not, as it is presented, a jurisdictional, gateway question, albeit the analysis in this section is mixed with justifiable discussion of direct v indirect damage under the CJEU Marinari rule. The judgment is much more extensive on this point than it could have been in my opinion.

[224] it is concluded that on the centre of interest issue, which is relevant for the natural person claimant only, his centre of interests is Monaco, where he is habitually resident. That is a factual assessment which is unlikely to be material for an appeal.

Geert.

EU private international law, 3rd ed. 2021, 2.439 ff.

Court of Appeal overturns and confirms, in principle though technologically not in practice, mosaic blocking order jurisdiction in Mincione.

When CJEU Bolagsupplysningen was held, I flagged immediately (I was not alone) that the judgment would necessarily create follow-up litigation.

At the level of the CJEU itself, Mittelbayerischer Verlag somewhat reigned in the consequences of Bier and Shevill, albeit not directly related to the discussions in Bolagsupplysningen. In Gtflix, the Court confirmed that each Member State where damage has occurred, will continue to have locus damni jurisdiction even if the claimant requests rectification of the information and the removal of the content placed online in another jurisdiction: one with full jurisdiction as either the Handlungsort or the place of the claimant’s centre of interests.

In England and Wales, Saïd v L’Express (a first instance case) held that it follows from Bolagsupplysningen that so far as internet publications are concerned, a claimant who is seeking injunctive relief (removal, correction in particular) may do so only in the places with full jurisdiction. This was implicitly confirmed in Napag, also a first instance case.

This conclusion has now been overturned by the Court of Appeal in Mincione v Gedi Gruppo Editoriale SPA [2022] EWCA Civ 557. This is a libel case brought by an Italian national with acquired British citizenship who is resident in Switzerland. He sues the Italian-domiciled publisher of a daily newspaper and weekly magazine, both of which are published predominantly in Italy and in the Italian language.

The first instance judge, Mincione v Gedi Gruppo Editoriale SpA [2021] EWHC 2006 (QB) had followed Said and Napag. The Court of Appeal notes that as a result of the Withdrawal Agreement it is bound by Bolagsupplysningen, it having been held before Brexit, and that it  ‘can have regard to’ ([65]) Gtlfix.

Warby J, seeking support in Gtflix, holds injunctive jurisdiction to restrain a harmful internet publication that has either occurred or “may occur”, does exist for the locus damni court yet only in respect of publication that may occur within the territorial jurisdiction of the court concerned. It can justify a domestic internet injunction, even for a ‘mosaic’ (locus damni) court, yet not to grant an injunctive remedy that would inevitably take effect extraterritorially.

The first instance judgment therefore is overturned on legal substance but  largely confirmed in practical reality: [72]. Current proceedings are largely held in substance, albeit not in form, to be a claim for a single and indivisible remedy. That is because a domestic internet injunction, prohibiting further publication, in this case however limited it might be in form, would, on the undisputed evidence, inevitably have extraterritorial effect. In future, technology might mean that an order framed as a domestic internet injunction would or could take territorial effect only. Yet in current technological reality, it is said that ordering removal would immediately have extraterritorial substantive effect. Those with knowledge of the technology may have more to say about this. Update 29 04 4:50 PM: the first instance judgment suggests this is related to the limited E&W jurisdiction, while the order would impact other parts of the UK, too: [98]: geo-blocking can only be done at a UK level, and the removal of a YouTube video can also be only done at a UK level (not: the E&W level).

The only part of the claim where jurisdiction for injunctive relief, if claimant is found at trial to have been libelled, will be possible, is for a so-called ‘section 12’ internet injunction: an order to publish a summary of the eventual judgment. That is because in the view of the the Court of Appeal, this relief can be targeted to the current subscriber basis of the publication outlets in England and Wales only.

Per Soriano, post Brexit a claimant will have to show that England and Wales is clearly the most appropriate place to bring an action, with locus damni per  SC Brownlie the tort gateway. Bolagsupplysningen will therefore not echo for much longer in E&W, and I doubt therefore that the SC will hear an appeal if it were sought.

Geert.

EU private international law, 3rd ed. 2021, 2.439 ff.

Mahmudov v Sanzberro. Addressing libel tourism under Brussels Ia with a debatable reading of eDate’s Centre of Interests.

Mahmudov & Anor v Sanzberro & Ors [2021] EWHC 3433 (QB) tackles the issue of libel tourism. As Collins Rice J puts it [3]

underlying the contest of law is a contest of two mainstream policies embodied in modern defamation law: on the one hand, the need for the law to keep up with the borderless realities of the internet, and on the other the need for international libel to be dealt with by the courts best able fairly to do so (or, to put it less neutrally, to prevent ‘libel tourism’).

The case is held under Brussels Ia for the claim was introduced on 31 December 2020, ‘IP completion day’.  Parties mostly seem at loggerheads over the implications of CJEU C-509/09 eDate. Claimants suggest eDate establishes a stand-alone full jurisdictional gateway for the Member State where the aggrieved has his or its centre of interests – CoI. Defendant claims [19]

there is still a binary choice, as per Shevill: to sue either (a) where a defendant is domiciled or (b) where a completed tort (the harmful event) occurred. The effect of eDate, they say, is that claimants taking the second route in their CoI country can now get global relief rather than being limited to compensation for harm arising in that individual state. CoI is not jurisdictional in the pure sense of introducing a freestanding basis for bringing an action somewhere; it is jurisdictional only to the limited or secondary (but nevertheless important) extent of the nature and quantum of the relief that may be sought.

Parties oddly seem in agreement that Shevill v Presse Alliance (No.2) [1996] AC 959 reaffirmed ([11] in Mahumdov]

that what constituted the ‘harmful event’ was to be determined by the national court applying its own substantive law. In other words, the preliminary jurisdictional question for the High Court in a libel case brought against a non-domiciled defendant was whether a claimant could show to the requisite standard that all the components of a tort actionable in the UK were present

I find that debatable to say the least, and in fact that consensus has an important impact on the judge’s final conclusion, which rejects CoI as a stand-alone gateway: [28] the judge sides with the defendants for the claimant’s reading would imply ‘an autonomous meaning of the ‘place where the harmful event occurred’ ‘. The latter, many might argue, must be the implication of the CJEU’s overall application of Brussels Ia. At [34] Napag Trading is offered in support however the judge I feel in Mahmudov should  have made a clearer distinction (as the judge did in Napag Trading) between the EU-governed jurisdictional gateway for tort, and the (England and Wales) governed Civil Procedure Rules test for a ‘good arguable case’. As I note in my review of Napag Trading, these CPR rules may still form a formidable procedural hurdle, however properly distinguishing between them is important, among others for costs reasons.

Geert.

Abusive forum shopping in defamation suits. The Parliament study on SLAPPs.

Strategic Lawsuits Against Public Participation – SLAPPs (I look at them comparatively in my Monash Strategic and Public Interest Litigation Unit, LAW5478) are a well-known tool to silence critics. Based on defamation, they (or the threat with them) aim to shut down the voice of opposition. Not many find the energy, financial resources and nerves to fight a protected libel suit in court.

The EP recently published the study led by Justin Borg-Barthet and carried out by him and fellow researchers at the University of Aberdeen. At the substantive level, distinguishing between SLAPPs and genuine defamation suits is not straightforward. As Justin et al point out, there is an important private international law element to the suits, too. Clearly, a claimant will wish to sue in a claimant-friendly libel environment. Moreover, where a deep-pocketed claimant can sue in various jurisdictions simultaneously, this compounds the threat.

The Brussels and Lugano regime is particularly suited to the use of SLAPPs as a result of the CJEU case-law on Article 7(2) forum delicti. The Handlungsort /Erfolgort distinction as such already tends to add jurisdictional gateways. In more recent years this has been compounded by the additional ‘centre of interests’ gateway per CJEU e-Date and Bolagsupplysningen – even if this was recently somewhat contained by the Court in Mittelbayerischer Verlag. As I have flagged before, Brussels Ia’s DNA is not supportive of disciplining abusive forum shopping, as illustrated ia in competition law and intellectual property law cases.

For these reasons, the report (Heading 4, p.33 ff) suggests dropping the availability of Article 7(2) and sticking to Article 4 domicile jurisdiction, supplemented with (unlikely) choice of court.

The European Parliament more than the European Commission has picked up the defamation issues both for BIa and for applicable law under Rome II (from which the issue is hitherto exempt; the report reviews the applicable law issues, too). It remains to be seen whether with this report in hand, Parliament will manage to encourage the EC to pick up the baton.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.431 ff, 4.24 ff.

 

Mittelbayerischer Verlag: determining centre of interests for jurisdiction in online defamation cases. The AG suggests this is not the case for big changes.

What I said in my post on Markt24 this morning, also goes for the Opinion of Bobek AG in C-800/19 Mittelbayerischer Verlag KG v SM: others have in the meantime posted analysis on it, in this case Tobias Lutzi whose scholarship was cited by the AG.

Claimant is a Polish national who had been a former Auschwitz prisoner. He brought a civil claim against a German newspaper before the Polish courts for having used the expression ‘Polish extermination camp’ in an online article to refer to a Nazi extermination camp built on the territory of (then) occupied Poland. The camp in Treblinka was a Nazi extermination camp built within the territory of occupied Poland. Not a ‘Polish’ or indeed even a ‘German’ concentration camp: a Nazi or fascist camp. But I stray.

Although the article had been online for only a few hours before it was corrected, the applicant maintains that the online publication has harmed his national identity and dignity.

Do Polish courts have international jurisdiction to hear such claim? In the main proceedings, the applicant is not only seeking monetary compensation, but also other remedies: a court order prohibiting the publisher from using the expression ‘Polish extermination camp’ in the future and the publication of an apology. (For related issues on the nature of the remedy, see prof Hess’ post on the blog here). Bolagsupplysningen is the most recent relevant CJEU authority. Some of the complications of that case recently featured in Napag Trading and in  Saïd v L’Express.

Warsaw was undoubtedly the claimant’s centre of interest per Bolagsupplysningen, yet the referring court wondered whether this was sufficient to give it jurisdiction given the range of remedies sought by the claimant (damages; prohibition to use the term in the future; public apology). Particularly seeing as the intensity of contact of the claimant with the offending material was on the lighter side: unlike eDate, the online article that formed the basis for the action did not directly concern claimant. The paper’s regional profile and readership range, and focus on regional news, the entirely German nature of the site, lack of any targeting of non-regional readers etc.. meant it was not at all directed at anything else but a local readership.

As Tobias points out, the AG reemphasises (39-44) the unfortunate consequences of Mozaik jurisdiction per CJEU Bier, as plenty of AGs and scholars have done with him. He suggests however that current case is not one suited to a wholesale revisiting of the Bier authority, specifically in an internet context (see also the phrase ‘ubiquitous nature’ of the internet in Google v CNIL, per Szpunar AG), seeing as the essence of the dispute is one on the merits. Instead, he suggests the Court exercise judicial economy and take a most narrow approach to the case: whether in a case seeking a prohibition on the use of a certain statement in the future and the publication of an apology, the applicability of centre of interests of a party allegedly harmed by online publication, be precluded by the fact that that person is not named in the publication at issue?

The case therefore will be an opportunity to specify to some extent the open questions with respect to the indivisibility of the remedies in online defamation cases (see also Gtflix TV and BVC v EWF).

Tobias maps the AG’s approach which discusses predictability yet anchors the conclusion unto the very reason (ia per recitals 15 and 16 which themselves go back to the Report Jenard) for having introduced A7 special jurisdiction: the connection of the court to the facts of the case (59):

any alternative grounds of jurisdiction, must be ‘based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation’.

‘the reasonable foreseeability of the centre of gravity of a dispute should not be effectively replaced by the publisher’s knowledge of the place of the victim’s domicile (62)’

A criterion of intent (69) must not be introduced for online torts, the AG suggests (cf intention expressed as ‘directing at’ in the consumer title). Applied to the case at issue, given the nature of the expressions used (the use of ‘Polish concentration camps’ can be predicted to create a fall-out in Poland, even if one does not have any specific individuals on one’s radar). At 81 ff the AG adds quasi-obiter that at the enforcement stage, any Polish judgment prohibiting in particular further use of the phrase may indeed bounce off German ordre public – as Burkhard’s post discusses re an earlier case.

What would be rather cool is for the CJEU in spite of the AG’s invite not to do so, to take the opportunity of this case to bin or radically amend Bier. That is a pipe dream: this is not going to happen [or is it 😉 ?] particularly seeing as the case will not be held in Grand Chamber.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.12.2.5, and para 2.598 in fine.

 

 

Soriano v Forensic News LLC & Ors. (Inter alia) the GDPR jurisdictional gateways being tested.

Soriano v Forensic News LLC & Ors [2021] EWHC 56 (QB) engages ia the jurisdictional implications of the GDPR (this post focuses solely on the data protection claim). Claimant  (habitually resident in the UK) sues in relation to ten internet publications and various social media postings including on Facebook and on Twitter. He relies on various causes of action including data protection, malicious falsehood, libel, harassment and misuse of private information. Defendants are all domiciled in various US States.

The Brussels Ia Regulation is not engaged; the GDPR is. (On the partial overlap and conflict between BIa and the GDPR see my paper here). A79 GDPR reads

“Right to an effective judicial remedy against a controller or processor

    1. Without prejudice to any available administrative or non-judicial remedy, including the right to lodge a complaint with a supervisory authority pursuant to Article 77, each data subject shall have the right to an effective judicial remedy where he or she considers that his or her rights under this Regulation have been infringed as a result of the processing of his or her personal data in non-compliance with this Regulation.
    2. Proceedings against a controller or a processor shall be brought before the courts of the Member State where the controller or processor has an establishment. Alternatively, such proceedings may be brought before the courts of the Member State where the data subject has his or her habitual residence, unless the controller or processor is a public authority of a Member State acting in the exercise of its public powers.”

At 45-47 the ‘establishment’ issue is not much discussed for the claimant at any rate meets with the habitual residence gateway. Focus of the discussion is on A3’s territorial scope provisions (I am not sure I agree with the suggestion at 46 that A79 logically comes before consideration of A3). Reference is made to Google Spain, Weltimmo and  Verein fur Konsumerentenininformation- see also my review with Yuliya Miadzvetskaya here. The European Data Protection Board’s Guidelines 3/2018 on the Territorial Scope of the GDPR are then turned to to consider targeting, processing and ‘related to’ per A3(2) GDPR.

At 60, Claimant’s case on A3 (2)(a) is set out as arguing that the Defendants, to the extent that they are data controllers, offer services to readers in the UK irrespective of payment. As for A3.2(b), it is contended that the website places cookies on readers’ devices and processes their personal data using Facebook and Google analytics for the purpose of targeting advertisements, with Facebook Ireland Ltd and Google Ireland Ltd operating as the registered joint data controller. Further, it is submitted (By Greg Callus – the same counsel as in the Court of Appeal judgment in Wright v Grannath which I reported yesterday) that the Defendants were collecting and obtaining data about the Claimant and were monitoring his behaviour within the UK and the EU with a view to making publishing decisions.

Justice Jay held claimant has no real prospect of success on either (a) or (b). At 64 ff: the ‘journalistic endeavour’ complained of is not oriented towards the UK in any relevant respect; as for article 3.2(a), there is nothing to suggest that the First Defendant is targeting the UK as regards the goods and services it offers; as for article 3.2(b), at 68

First Defendant’s use of cookies etc. is for the purpose of behavioural profiling or monitoring, but that is purely in the context of directing advertisement content. There is no evidence that the use of cookies has anything to do with the “monitoring” which forms the basis of the Claimant’s real complaint: the Defendant’s journalistic activities have been advanced not through any deployment of these cookies but by using the internet as an investigative tool. In my judgment, that is not the sort of “monitoring” that article 3.2(b) has in mind; or, put another way, the monitoring that does properly fall within this provision – the behavioural profiling that informs advertising choices – is not related to the processing that the Claimant complains about (assuming that carrying out research online about the Claimant amounts to monitoring at all).

(Obiter, at 69, it is held that had the good arguable case succeeded, the claim would have withstood a forum non conveniens argument).

At 112 ff the jurisdictional case for libel is upheld.

An interesting illustration of the unsettled nature of jurisdictional claims under the GDPR.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.9.2.5, para 2.258 ff.

 

 

Napag Trading v Gedi. A right Italian tussle on libel over the internet, leads to jurisdictional dismissal on good arguable case grounds.

Napag Trading Ltd & Ors v Gedi Gruppo Editoriale SPA & Anor [2020] EWHC 3034 (QB) engages (and refers to) the issues I previously reported on in inter alia Bolagsupplysningen, Saïd v L’Express,

It is worthwhile to list both claimants and defendants.

On the claimants side, Napag Trading Limited (“the First Claimant”) is an English-domiciled company. Napag Italia Srl (“the Third Claimant”) is an Italian-domiciled subsidiary of the First Claimant. Sgr Francesco Mazzagatti (“the Second Claimant”), an Italian national with his main residence in Dubai, is the CEO and sole director of, and 95% shareholder in, the First Claimant. The First Claimant trades, and the Third Claimant has traded, in petroleum-based products.

On the defendants side, Gedi Gruppo Editoriale S.p.A. (“the First Defendant”) is the publisher amongst other things of L’Espresso which is a weekly Italian-language political and cultural magazine available both in print and online in England and Wales. Società Editoriale Il Fatto S.p.A. (“the Second Defendant”) is the publisher of Il Fatto Quotidiano (“Il Fatto”), a daily Italian-language newspaper published in England and Wales only on the internet.

An earlier Brexit-anticipatory forum non conveniens challenge was waived away by Jay J at 7: ‘Only the Second Defendant saw fit to raise a forum non conveniens challenge in advance of 1st January 2021 and the relevant EU regulation no longer applying. I would have been very reluctant to rule on this sort of application on an anticipatory basis.’

Identifying a centre of interest in England and Wales, leading to full jurisdiction there for damages, per CJEU e-Date and Bolagsupplysningen and also a precondition to apply for injunctive relief (see also Bolagsupplysningen: only courts with full jurisdiction may issue such relief) is of course a factual assessment.

The Second Claimant is an entrepreneur, born in Calabria but now living in Dubai. He founded the Third Claimant in 2012. Initially, it traded in oil and petroleum products from offices in Rome. The Third Claimant dealt in particular with the Italian oil company Eni S.p.A. (“Eni”), headquartered in Rome and in part state-owned, and Eni Trading & Shipping S.p.A. (“Ets”) which is based in Rome and has a branch in London. Second Claimant incorporated the First Claimant in April 2018. His evidence is that London was a better base from which to conduct and grow his business because he was encountering resistance from some banks and financial institutions who were diffident about working with an Italian company. More specifically, the strategy was to hive off the Third Claimant’s oil and gas business into the First Claimant, and the former would devote itself to trading in petrochemicals. Additionally, the idea was to invest in an “upstream” development in the UK Continental shelf, and the first discussions about this were in November 2018.

Justice Jay revisits the CJEU’s instructions re centre of interests for natural persons per e-Date. At 29:

First, other things being equal, and certainly in the absence of evidence to the contrary, a natural person’s “centre of interests” will match his or her habitual residence. Whether or not this may accurately be described as an evidential presumption does not I think matter (in my view, no legal presumption is generated); in any case, the CJEU – subject to my second point – is not purporting to assist national courts as to the rules of law that should govern the exercise of ascertainment. Secondly, general considerations of predictability and the need for clarity militate in favour of straightforward and readily accessible criteria rather than any microscopic examination of the detail.

At 32 follows an interesting discussion of para 43 of the CJEU Bolagsupplysningen judgment

“43. It is also appropriate to point out that, in circumstances where it is not clear from the evidence that the court must consider at the stage when it assesses whether it has jurisdiction that the economic activity of the relevant legal person is carried out mainly in a certain member state, so that the centre of interests of the legal person which is claiming to be the victim of an infringement of its personality rights cannot be identified, that person cannot benefit from the right to sue the alleged perpetrator of the infringement pursuant to article 7(2) of Regulation No 1215/2012 for the entirety of the compensation on the basis of the place where the damage occurred.”

After a reference to what Justice Jay calls Bobek AG’s ‘masterly opinion’, in particular the burden of proof issues are discussed which Jay J justifiably holds are not within the scope of Brussels Ia (not at least in the sense of deciding the procedural moment at which proof must be furnished). I agree with his finding that the CJEU’s meaning of para 43 is simply that

in the event that the national court concluded that it could not identify the “centre of interests” because the evidence was unclear, article 7(2) of the RBR could not avail the claimant.

Conclusion of the factual consideration follows (probably obiter: see 150) at 161: first Claimant has the better of the argument that its “centre of interests” is in England and Wales.

Jay J then discusses at 35 ff that whether there actually is damage within E&W as a matter of domestic law to decide to good arguable case standard, that the case may go ahead. That discussion shows that  the actual concept of ‘damage’ within the meaning of Brussels Ia and indeed Rome II is not quite so established as might be hoped, and it is held at 141 that no serious damage has occurred within E&W for there to be jurisdiction.

The case is a good illustration of the hurdle which national rules of civil procedure continue to form despite jurisdictional harmonisation under EU private international law rules.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.

Third ed. forthcoming February 2021.

 

Bitcoin, defamation and jurisdiction. The Court of Appeal confirms stay in Wright v Ver.

The background in Wright v Ver [2020] EWCA Civ 672 is the mysterious history of Bitcoin and its creator, ‘Satoashi Nakamoto’. “Satoshi Nakamoto” is the pseudonym used by the person, or persons, who developed Bitcoin. On 31 October 2008 an academic paper was published under the name of Satoshi Nakamoto titled “Bitcoin: A peer to peer electronic cash system”. The academic paper described the manner in which the electronic cash system operated. Dr Craig Wright, claimant and appellant, is a national of Australia who now lives in Surrey. He has lived in the UK since December 2015 after emigrating from Australia. He also became a citizen of Antigua and Barbuda in 2017. He is a computer scientist with a particular interest in cryptocurrencies, including Bitcoin. Dr Wright says that he is Satoshi Nakamoto.

Roger Ver, defendant and respondent, is a bitcoin investor and commentator on bitcoin and other cryptocurrencies. Mr Ver was born in California, and raised in Silicon Valley. He moved to Japan in 2005. In 2014 he renounced his US citizenship and became a citizen of St Kitts & Nevis, although he continues to live in Japan. Mr Ver does not accept that Dr Wright is Satoshi Nakamoto.

The judgment does not address whether Dr Wright is Satoshi Nakamoto.

Dr Wright claims that he was libelled by Mr Ver in a YouTube Video posted on the Bitcoin.com YouTube channel on about 15 April 2019, a tweet containing the YouTube Video posted on Mr Ver’s Twitter Account on 3 May 2019, and a reply on Mr Ver’s Twitter Account posted on 3 May 2019 some 8 minutes after the tweet from Mr Ver. The defamatory meaning of these publications is said to be that Dr Wright “had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people who developed Bitcoin”.

Never more (data produced were broken down over periods) than 7 of the total YouTube views were in the UK. 7% of Mr Ver’s Twitter followers are in the UK. By judgment dated 31 July 2019 Mr Justice Nicklin found that England and Wales was not clearly the most appropriate place in which to bring the libel claim in this action and made a declaration that the Court had no jurisdiction to hear the claim.

The Court of Appeal, Dingemans LJ leading, agreed. Brussels Ia is not engaged. The jurisdictional test is section 9 of the Defamation Act 2013 – I previously discussed it in Sadik v Sadik: ‘A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.’

At 56 Dingemans notes that after Brexit, the Act’s reach will increase.

The first instance judge had argued inter alia that the evidence showed that Dr Wright was putting down roots in the UK and that would increase the reputational interests that Dr Wright had in this jurisdiction but that could not displace the global reputation that he enjoyed.

Dr Wright’s counsel submitted that the judge had set Dr Wright an impossible task by requiring him to adduce evidence of actual harm to his reputation in each candidate jurisdiction, and concluding that in the absence of such evidence Dr Wright could not satisfy the jurisdictional test. Further it was submitted that the judge had wrongly failed to carry out a comparative assessment as to whether each candidate jurisdiction was appropriate for the claim, and therefore failed to carry out the task mandated by s9.

Relevant factors for jurisdiction are discussed at 61 ff. Evidence will have to be shown of all the places in which the relevant statement has been published, as well as the number of times it has there been published. Targeting the publication at an English audience clearly will be an issue. Further elements include the availability of fair judicial processes in the other jurisdictions in which publication occurred. The available remedies from the Courts of the other jurisdictions may be relevant, as may be the costs of pursuing proceedings in each possible jurisdiction. Other factors that might impact on access to justice, for example language barriers, can be relevant. The location of likely witnesses is another feature that may be relevant. This list of factors is not exhaustive.

In a mercifully succinct manner, Dingemans J reviews all the elements and decides the test has not been met here.

A good primer for the 2013 Act.

Geert.

 

Euroeco Fuels adds some doubt to the Privatbank ‘related actions’ findings.

On Wednesday not only did the European Commission release its proposal for green deal, the Court of Appeal also held in Euroeco Fuels (Poland) Limited and others v Sczezin and Swinoujscie Seaports and others [2019] EWCA Civ 1932. As the Green Deal is not short of commentators, I shall focus on Euroeco. It is an important follow-up to some of the issues in Privatbank, particularly in the Court of Appeal’s treatment of ‘expediency’ under Brussels Ia’s lis alibi pendens rules.

Claimants appeal from a decision of Nicol J declining jurisdiction to hear and determine their claims for libel and malicious falsehood. The origins of the claims are words spoken by the Second Defendant in March 2017 at a press conference in Poland and a press release said to have been issued by the Defendants, also in Poland, to the press and other media. The reach of some of those Polish media included England and Wales. The Claimants rely on what are said to be republications of the words and the press release which took place in England and Wales by means of internet articles being read there and Polish broadcasts available there, again on the internet.

Jurisdiction in England can be established on the basis of Article 7(2) BIa. CJEU C-68/93 Shevill is discussed of course, as are Joined Cases C-509/09 and C-161/10 e-Date and Martinez.

First Claimant (“EEF”) is a Polish company. It is the leaseholder of a site in the Baltic port of Szczecin in Poland. It operates an industrial scale alternative petrochemical production plant (“the EEF Plant”) which recycles used tyres into carbon and oil products. Before the English action began, the First Defendant had taken proceedings in Poland against EEF alleging that the EEF Plant was causing a nuisance because of the odours it emitted: those, I understand (the judgment is not entirely clear on this issue) are the concurrent ‘Polish proceedings’. The other claimants are the English holding company and various executives.

First Defendant company is the landlord of the EEF Plant site and the administrator of the ports of Szczecin and Swinoujscie. The other defendants are employees and executives of the first defendant.

At 22-23 are the defendants’ arguments pro a stay or even declination of jurisdiction on Article 30 BIa grounds. Nicol J held that the English and Polish proceedings are “related” for the purposes of Article 30 and decided to decline. His discussion of the various arguments is included at 35 ff of the Court of Appeal judgment.

On Article 30(3)’s condition of ‘expediency’, at 45 the Court of Appeal merely refers to the earlier decision in Privatbank, that “expedient” is more akin to “desirable” than to “practicable” or “possible”. However at 52 Bean LJ holds that ‘If the judge’s decision to decline jurisdiction is upheld or even if the English claim for libel and malicious falsehood is stayed the Claimants could, of course, start similar proceedings in Poland. But on the material before us there appears to be no real possibility of such a claim and the existing claim for nuisance brought by the Defendants being “heard and determined together”.’

This seems at most a lukewarm application of Privatbank, one that is much more practical than abstract and in my view must take some gloss off the authority of Privatbank.

Obiter the risk or irreconcilability is discussed at 53 ff, holding at 61 (with fellow Lord Justices further reserving their view on the issue) ‘the central issue in both actions will be whether the Claimants are causing or permitting harmful pollution to the atmosphere around the EEF Plant; and that to allow the libel claim to proceed to trial in England would create a risk of “irreconcilable judgments”. However, my views on that issue cannot prevail against my conclusion that there is effectively no prospect of the two actions being “heard and determined together”.’

This is an interesting case, I believe it puts one or two Privatbank considerations into perspective.

Geert.

(Handbook of EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.

 

Sadik v Sadik. Domicile, libel tourism and the absence of party autonomy in the Defamation Act 2013.

Update 7 November 2019 for a second What’sApp defamation case under the common law see 5 November Tallha Abdulrazaq v Nibras Hassan [2019] EWHC 2930 (QB) – where jurisdiction was not an issue. 

In [2019] EWHC 2717 (QB) Sadik v Sadik, the claim is one in libel. Claimant is a businessman and philanthropist who lives in Dubai and spends 30 to 35 days in London each year. Claimant and Defendant are brother and sister in law. Defendant has a house in Kuwait with her husband. Until at least 19 September 2017 she lived in London, whilst also maintaining a house in Kuwait.

Defendant is prepared to accept for the purposes of this application that the relevant date for determining domicile is the date proceedings were commenced, ie 26 September 2017: see inter alia JSC BTA Bank v Mukhtar Ablyazov. (Upheld on Appeal). Should no domicile in the UK (or another EU /Lugano State) be upheld, forum non conveniens kicks in.

The UK Defamation Act 2013 (the DA 2013) was entered precisely to address libel tourism in the UK. It reads in relevant part (Section 9)

 Action against a person not domiciled in the UK or a Member State etc 

(1) This section applies to an action for defamation against a person who is not domiciled 

(a) in the United Kingdom; (b) in another Member State; or (c) in a state which is for the time being a contracting party to the Lugano Convention.

(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.

(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.

(4) For the purposes of this section –(a) a person is domiciled in the United Kingdom or in another Member State if the person is domiciled there for the purposes of the Brussels Regulation; (b) a person is domiciled in a state which is a contracting party to the Lugano Convention if the person is domiciled in the state for the purposes of that Convention.”

Defendant says that the Claimant cannot possibly satisfy the test in s 9(2). That is because Claimant in her view does not complain of any publication within this jurisdiction. She submits that s 9 implicitly requires the words complained of to have been published in England and Wales: ‘of all the places in which the statement complained of has been published…’. In effect, she says that s 9 means that this court does not have jurisdiction to hear a claim against a defendant not domiciled in the jurisdiction (or within a Brussels/Lugano state) for a claim in respect of solely foreign publication. In the alternative, if is necessary for the court to compare jurisdictions to determine which is the most appropriate forum for trial Defendant submits that the burden is on the Claimant to demonstrate that England and Wales is clearly the most appropriate forum, and there is no realistic prospect of him being able to discharge that burden. She points in particular to the fact that both of the parties are based in the Middle East, as are all of the publishees of the What’sApp Messages concerned, save for one, who is based in the United States.

Claimant submits that Defendant has submitted to the jurisdiction and so can no longer dispute the Court’s jurisdiction under s 9 of the DA 2013, or otherwise. Further or alternatively, he submits that provision is of no assistance because she was domiciled within the jurisdiction at the relevant time.

At 55 Knowles J holds that failure by a defamation defendant to follow the procedure in Part 11 of the civil procedure rules, for contesting jurisdiction under s 9 does not mean that her right to make a jurisdictional challenge under that section has been waived. ‘Section 9(2) is in mandatory form. Where the defendant is not domiciled within one of the specified jurisdictions then s 9(2) provides (emphasis added), ‘A court does not have jurisdiction to hear and determine an action to which this section applies unless …’. In my judgment jurisdiction under s 9 cannot be conferred by waiver, submission or consent. It is concerned with the subject matter of the suit and not with personal jurisdiction over the defendant.’ In the DA 2013 Parliament in other words inserted mandatory rules on jurisdiction which are not within the remit of party autonomy.

At 60 ff then follows the analysis of ‘domicile’ for natural persons under English law (following Article 62 Brussels Ia’s deference to national law), leading to a conclusion of domicile in the UK at the relevant time.

The remainder of the case discusses grounds for summary dismissal on the grounds of substantive English libel law.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.10

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