Making a defamation claim when not resident in the UK

The UK famously used to be the jurisdiction of choice for defamation cases and earned the reputation of being the world’s “libel tourism” capital, allowing defamation to be heard here even where there was a tenuous link. This was addressed under the Defamation Act 2013 with the enactment of section 9. This is something that claimants with a global reputation will need to consider when dealing with any defamatory statements.

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Who can make a defamation claim in the UK if they are not resident here?

The court does not have the relevant jurisdiction unless it satisfies the following criteria:

• It is an action for defamation against a person who is not domiciled in (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.
• 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.

This section also further confirms that the above criteria applies to all statements that contain the same, or substantially the same, versions of the statement. This means that slightly varying the content does not get around the principles of section 9.

How does section 9 prevent libel tourism

It is this second requirement that has made a difference. The Explanatory Notes of the Act explain that the intention of this section is to prevent cases being heard that would be more appropriate to be dealt with in another jurisdiction and “the court will be required to consider the overall global picture to consider where it would be most appropriate for a claim to be heard.” The claimant has to show on the balance of probabilities that England and Wales is the most appropriate place for the case to be heard.

The Explanatory Notes continue explaining that the intention of section 9 is to “overcome the problem of courts readily accepting jurisdiction simply because a claimant frames their claim so as to focus on damage which has occurred in this jurisdiction only. This would mean that, for example, if a statement was published 100,000 in Australia and only 5,000 times in England that would be a good basis on which to conclude that the most appropriate jurisdiction in which to bring an action in respect of the statement was Australia rather than England.”

What factors will determine whether the UK is the right jurisdiction?

There are a range of factors that will be considered:

• The extent of publication in each jurisdiction.
• The amount of damage to the claimant’s reputation in this jurisdiction compared to elsewhere.
• The extent to which the publication was targeted at a readership in this jurisdiction compared to elsewhere. This would turn on the available evidence but if readers in England and the UK were the target audience then this could suggest this would be the most appropriate forum.
• Whether there is a reason to think that the claimant would not receive a fair hearing elsewhere. This would include looking at the available remedies as well as the costs of making a claim in another jurisdiction. It may be necessary to provide evidence from a lawyer or expert in that area to show that this is the case.
• The location of witnesses that may need to attend.
• If there are any practical issues, for example, a language barrier.

The claimant will need to demonstrate that they have a reputation in England and Wales and that this has been damaged by the defamation. There is quite a high burden on the claimant who will need to produce evidence in relation to the publication of the defamation in foreign jurisdictions to show that England is the most appropriate one.

What is the case with the internet in these cases?

Publications made on the internet have various jurisdictional issues, but the courts have made it clear that there is no legal presumption of a jurisdiction being the substantial place of publication. It is up to the claimant to prove that relevant statement was both accessed and downloaded at a sufficient level within England and Wales. Where the statement has been published online, then the claimant should produce evidence in relation to the amount of hits in each jurisdiction to support their case why this is the more ap