King knocks out Bernstein's appeal in internet scuffle

Boxing promoter Don King has successfully defended his right to bring defamation proceedings against Lennox Lewis’s US attorney, Judd Bernstein, in the English courts in relation to articles held on websites based in California.

The background to the litigation is a New York case in which Lewis and his promotions company are suing King and Mike Tyson for allegedly interfering with an agreement relating to a proposed Tyson v Lewis heavyweight rematch. Throughout those proceedings King and Bernstein have traded blows in the press. The English case relates to two pieces published on the popular boxing websites www.fightnews.com and www.boxingtalk.com. In these articles Bernstein accused King of making anti-Semitic remarks including describing him as a “shyster lawyer”.

The question before the Court of Appeal was whether England was the appropriate forum for the conduct of the proceedings. Bernstein argued that King was only bringing his claim in this jurisdiction because proceedings in the US were doomed to failure due to the US public figure defence.

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However, sweeping aside that submission, the Court reaffirmed the case law in this area and set out these key points:

The starting point for ascertaining the natural forum is the place where the tort was committed. In defamation proceedings this is where publication of the defamatory material occurred.
The more tenuous the claimant’s connection with this jurisdiction (and the more substantial any publication abroad) the weaker his argument to have the case heard in England becomes.
The relative merits of a trial in England and a trial abroad are pre-eminently a matter for the trial judge. Only if the judge decides that an alternate forum is appropriate should he consider whether there is a juridical advantage for the claimant, such that a trial in England is required for justice to be done between the parties.
In internet libel, publication takes place in the jurisdiction in which the website content is downloaded and each downloading constitutes a separate tort.

The last point highlights the ramifications, in libel law, of internet publications. In the case of Gutnick v Dow Jones the High Court of Australia rejected the argument that the internet was different from radio or television because the publisher could not decide how far the information was transmitted.

The Court of Appeal agreed and stated that, if anything, “in an Internet case the court’s discretion [as to the appropriate jurisdiction] will tend to be more open-textured than otherwise; for that is the means by which the court may give effect to the publisher’s choice of global medium.”

Bernstein’s lawyers raised the interesting issue of the websites’ target audience and submitted that the courts should be more ready to stay proceedings where the defendant had not targeted the jurisdiction in which he had been sued. This was rejected by the Court when it ruled that, by choosing to use the world-wide-web, an internet publisher has effectively “targeted” every jurisdiction in which his text may be downloaded.

This reasoning has been followed by the High Court very recently in Anna Richardson v Arnold Schwarzenegger and Others, where Eady J stated that there was no warrant for drawing a distinction between those who deliberately published or put matters on the internet as part of their business and those who did so incidentally, and without intending to target any particular jurisdiction. Thus internet publishers should be aware that they may be held accountable in multiple jurisdictions.

An interesting development regarding specifically the law (as opposed to the jurisdiction) under which such claims may be heard is the European Commission’s draft Proposal for a Regulation on the Law Applicable to Non-Contractual Obligations (“Rome II”) which is currently being considered by the European Parliament. The current draft states that the law applicable to an action will generally be the law of the country where the damage occurs, with a number of exceptions specific to privacy and defamation law. It is anticipated that the European Parliament will publish its draft report on the proposals early next year.

The Court of Appeal’s decision confirms that defamatory material published on a foreign website by a foreign national about a foreign national may be sued on in this jurisdiction providing that the website can be accessed here and that the subject of the defamation has a reputation here. It is a salutary reminder of the global responsibility which comes with this global medium.

Sarah McColl – Trainee Solicitor Addleshaw Goddard

Sarah McColl



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