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

BVC v EWF. The High Court on personality rights, internet and centre of interests in echoes of Bolagsupplysningen and e-Date. Suggests court with full jurisdiction is required for orders restraining further publication.

In BVC v EWF [2019] EWHC 2506 (QB) claimant applied for summary judgment in a claim for misuse of private information and harassment. The privacy claim arises from internet publication, on a website created by the defendant, of his account of his relationship with claimant. The harassment claim arises from a series of email communications from the defendant to claimant over a period of some two years, and from publication of the website itself.

An ex parte injunction had been granted earlier. The Defendant was restrained from contacting or harassing claimant, from publishing the website or any of its contents to the world at large, and from publishing any of the information set out in a confidential schedule, or any information which was liable to or might identify the claimant as a party to the proceedings or as the subject of the confidential information

In current proceedings defendant (a UK national) submits he is domiciled in Switserland. This triggers the Lugano Convention.

Parkes J clearly had to consider Article 5(3) Lugano’s special jurisdictional rule for tort (the BIa equivalent of course is now Article 7(2), hence also applying e-Date and BolagsupplysningenSteyn DJ had earlier rejected defendant’s arguments. At 33: ‘She held, in short, that the Claimant had a good arguable case that this jurisdiction was the state in which he had the centre of his interests, and that in any event a real and substantial tort (namely misuse of private information) had been committed within the jurisdiction. She also ordered that the steps already taken to bring the Claim Form and orders of 27 June and 4 July 2018 to the Defendant’s attention (namely, service by email) constituted good service on him, notwithstanding that he claimed he was domiciled in Switzerland at the date of receipt of the documents, not (as had been believed) in this jurisdiction.’

Defendant (praised nb by Parkes J for his ‘brief but enlightening written submissions’) however continues to challenge the jurisdiction, jumping at the chance to bring it up again when claimant referred to his centre of interests in his PoC (Particulars of Claim), and employing the distinction which the CPR makes between challenges to existence and exercise of jurisdiction (notwithstanding authority (see at 39) that despite the distinction claims viz the two need to be brought concurrently).

He essentially (at 43) posits the court reconsider

‘whether Article 7(2) RJR is ‘to be interpreted as meaning that a natural person who alleges that his personality rights have been infringed by the publication of information concerning him on the internet may have his centre of interests in a Member of State where he is not habitually resident, where he has no ongoing professional connections or employment, no home, no income and no immediate family’. In his letter to the court of 18 June 2019, the Defendant puts it this way: ‘… with no permission to appeal the judgment of Karen Steyn QC, if the court continues to accept the Claimant’s centre of interests is in England and Wales despite very clear evidence to the contrary then it is necessary to refer the question of interpretation to the ECJ pursuant to Article 267 of the TFEU’.

At 44 Parkes J dismisses the suggestion of preliminary review to Luxembourg. That route is ‘not designed to provide a route of appeal against judicial evaluation of evidence of fact.’ In conclusion, re-opening of the discussion on jurisdiction is rejected, referring finally to Lord Green in Kaefer:”it would not be right to adjourn the jurisdiction dispute to the full trial on the merits since this would defeat the purpose of jurisdiction being determined early and definitively to create legal certainty and to avoid the risk that the parties devote time and cost to preparing and fighting the merits only to be told that the court lacked jurisdiction“.

Arguments on submission to the jurisdiction where not entertained: whether service of a defence, and the making of an application to strike out qualify as ‘submission’ becomes otiose when that jurisdiction has already been unsuccessfully challenged.

Then follows extensive discussion of the factual substance of the matter, which is less relevant for the purposes of this blog. Hence fast forward to 150 ff where the issue of jurisdiction to issue an injunction prohibiting re-publication of the material is discussed (in case: re-offering of the website on WordPress or elsewhere). At 158 ff this leads to a re-discussion of Bolagsupplysningen where the Court held that where a claimant seeks an injunction to rectify or remove damaging material from the internet, he can only do so only in a State with full jurisdiction. Parkes J at 160 suggests this is only in the state where the defendant is domiciled (the general rule, as stated by Art 2(1) Lugano and Art 4(1) RJR), or (by virtue of the special jurisdiction: Art 5(3) Lugano and Art 7(2) RJR) in the state where he has his centre of interests, and not before the courts of each member state in which the information is accessible.

I believe Parkes J on that point omits locus delicti commissi. At the time of my review of Bolagsupplysningen I suggested the judgment was bound to create a need for further clarification: Shevill and e-Date confirm full jurisdiction for the courts of the domicile of the defendant, and of the locus delicti commissi, and of the centre of interests of the complainant. These evidently do not necessarily coincide. With more than one court having such full jurisdiction positive conflicts might arise.

Of more importance here is that Parkes J (obiter) at 163 suggests that the requirement of full jurisdiction, also applies to orders restraining any further publication and not just as the Grand Chamber held limited by the facts in Bolagsupplysningen, to orders for rectification and removal. In doing so he follows the in my view correct suggestion made by Dr Tobias Lutzi (‘Shevill is dead, long live Shevill!’, L.Q.R. 2018, 134 (Apr), 208-213) viz divisible cq indivisible remedies – update 28 September 2019 although the issue is not free of discussion. Graham Smith for instance suggests the potential for geo-blocking as a valid argument to grant jurisdiction for restraining further publication on an Article 7(2) locus damni basis.

Note also the cross-reference to Saïd v L’Express on the limitation of Bolagsupplysningen to injunctive relief: for damages, the full mosaic implications remain.

Conclusion: Claimant is entitled to summary judgment for a final injunction to restrain further misuse of his private information

Geert.

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

 

Saïd v L’Express. The High Court finds no Bolagsupplysningen injunctive jurisdiction (upholds damages jurisdiction).

In Saïd v L’Express [2018] EWHC 3593 (QB), held at the end of December, 1st Defendant is the publisher of the French language magazine L’Express. 2nd Defendant is described as the ‘directeur de la publiction, directeur de la redaction’ of the magazine and is said to have editorial responsibility for it. The claim was originally one in data protection under the GDPR and one in libel – currently only the libel claim has been continued. A pitty: for the GDPR issue see my prediction here.

214 copies of the magazine are sold to subscribers in the UK. There were 252 website visits to the article from within the UK. All the ingredients therefore of a classic C-68/93 Shevill action. Nicol J of course runs (with great clarity) through Shevill, eDate Advertising GmbH v X; Martinez v MGN Ltd Joined Cases C-509/09 and C-161/10) and Bolagsupplysningen. At 23 he holds correctly that the e-Date route of full jurisdiction for the claimant’s centre of interests applies only to internet publications (‘I detect no suggestion that, in respect of print copies, a claimant has the option of suing for compensation for all of the loss in the member state where he has his centre of interests’).

At 31 he summarises his key takeaways from Bolagsupplysningen.:

i) So far as internet publications are concerned, a claimant who is seeking relief such as an injunction may do so only (a) in a Member State where the defendant is domiciled (so that the Courts of that Member State have jurisdiction under Article 4(1)); or (b) in the Member State where Claimant has his centre of interests.

ii) Although by the time of the reference the Supreme Court of Estonia was concerned only with the corporate claimant, there is nothing in the judgment to suggest that the outcome in relation to the third question would have been different in relation to the individual claimant.

iii) The Court was concerned exclusively with publications on the internet. So far as remedies for print publications are concerned, a claimant’s options as set out in Shevill remain the same.

iv) Likewise, the Court was concerned exclusively with remedies for the rectification or removal of information from the internet. So far as other remedies, such as damages are concerned (even damages for internet publications) the Court appears to have made no change to the previous position. The Court’s judgment appears to be in contrast with the opinion of the Advocate-General (Bobek) whose preferred course was to restrict a claimant complaining of an internet publication, to those fora which had full power to deal with all copies of the publication so that the mosaic option would not be available in such cases (see [97] of his opinion) whatever remedies were being sought. ….’

He is absolutely right re Bobek’s Opinion as I discuss here.

Then follows the factual discussion (suggestions for centre of interest in England are at 47 and at 56) leading to a finding at 61 of there not being centre of interest in England which could displace the Bolagsupplysningen presumption of habitual residence (here: Monaco) being that centre. The preceding paras include important discussion on the amendment of claims and the need to identify the jurisdictional gateway (Mosaic and /or Bolagsupplysningen) in the claims form.

Finding therefore is at 73-74 that ‘Claimant has not shown a good arguable case that his centre of interests is in England and Wales. As is agreed, the Defendants are not domiciled in the jurisdiction. Accordingly and in accordance with Bolagsupplysningen, this court does not have jurisdiction to grant an injunction to restrain publication of the article on the internet. To that extent, the Defendants’ application succeeds. Otherwise, the Claimant has shown a good arguable case for the cause of action and other relief which he seeks. The remainder of the Defendants’ application is therefore refused.’ (Meaning that the application for summary dismissal on that point fails and the case must proceed on the damages issue, in mosaic fashion).

A first thorough application of Bolagsupplysningen I believe.

Geert.

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

 

Kennedy v National Trust for Scotland. Applying forum non conveniens within the UK. And how to make a case ‘international’.

Update 12 June 2019 various reports refer to Kennedy v National Trust for Scotland [2019] EWCA Civ 648 as having confirmed the High Court approach. Text of judgment is not available publicly, once it is I shall be able to review the Court of Appeal’s reasoning on Brussels Ia. The case was used as authority in [2019] EWHC 1469 (QB) Advertising Standards Authority v Mitchell: jurisdiction for interim relief prohibiting disclosure of privileged legal advice following documents inadvertently sent to the wrong e-mail address.

In [2017] EWHC 3368 (QB) Kennedy v National Trust for Scotland, Eady J considers two important (for this blog at least) issues leading to dicta: when a prima facie domestic case may turn out to be international really; and following his ruling on same, the application of forum non conveniens intra-UK. I reviewed the latter issue, also intra-UK, in my analysis of Cook & McNeil (v Virgin & Tesco).

First the issue of the case being purely domestic or international. It is only when it is the latter, that the Brussels I Recast regime is engaged and, per Owusu, forum non conveniens excluded.

The Claimant, who is domiciled in Scotland, seeks damages and other remedies in this jurisdiction against the National Trust for Scotland in respect of a number of allegations published in both jurisdictions as well as in Italy, France and Brazil. He relies not only on defamation but also on negligence and on alleged breaches of the Data Protection Act 1998. The dispute arises over the Claimant’s attendance at Craigievar Castle in Aberdeenshire on 23 February 2012, when he took a series of photographs of a naked model for commercial purposes. He claims that he did so pursuant to an oral contract, entered into with a representative of the Defendant, which expressly authorised that activity. Some years later, this episode came to the attention of the daughter of Lord Sempill who had gifted the castle to the Defendant (more than 50 years ago) and she protested that it had been used for the purpose of taking nude photographs. Her remarks caught the attention of a journalist who made enquiries and was given a statement by or on behalf of the Defendant on 24 February 2016 which was reported in the Scottish Mail on Sunday of 28 February. Thereafter, the Defendant also issued a press release which denied that the taking of the photographs had been authorised. This was sent to a number of media outlets including a reporter on the (London) Metro newspaper.

Claimant suggests that this is not “a purely domestic case” by referring to re-publication of the defamatory words in France and Italy. At 51 Eady J, with reference to the aforementioned Cook v Virgin Media, suggests the purpose of the regulation, and of the rule of general jurisdiction in particular, is to regularise issues of jurisdiction as between different states, and that no such question arises here, because the only potential competition is between the courts of Scotland and England & Wales (i.e. internal to the United Kingdom). I do not think this is the effect of CJEU precedent, Lindner in particular, as well as Maletic and Vinyls Italia (the latter re Rome I). The potential competition between the England and Scotland only arises if, not because, the Brussels I Regulation does not apply: the High Court’s argument is circular. In Linder and in Maletic, the CJEU upheld the application of Brussels I even though competing jurisdiction elsewhere in the EU was only potential, not actual. Given the potential for jurisdiction with courts in France and Italy, I would suggest the Lindner logic applies.

Eady J though applies forum non conveniens to establish Scotland as the more appropriate forum in the UK, and to stay the English case.

He then obiter (had FNC not applied), at 86 ff suggests the court develop a novel sub-national model of Shevill, such that only courts of the sub-national place where the publisher is domiciled would have jurisdiction to award global damages – and all other courts within the United Kingdom would be restricted to awarding damages for harm occurring within their relevant regions. Importantly, even for post-Brexit use, Eady J suggest the importation of CJEU case-law in applying English law of conflicts is appropriate for Parliament has approved rules in parallel to those under the Recast Regulation.

A little gem of a judgment.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.1.

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