King v Lewis & Ors

For internet defamation, publication occurs where defamatory material is downloaded and read. The location of publication is therefore relevant to jurisdiction and forum, even where the authors and defendants are resident abroad. English law does not apply a single-publication rule, and damage to reputation is generally presumed.

Where the claimant has a substantial reputation and significant connections in England, the place of publication and injury ordinarily provide a weighty reason for trial here. At the service-out stage, the court should identify whether there is a serious issue to be tried without conducting a full merits assessment. A claim may proceed where responsibility for publication is reasonably inferable from the surrounding circumstances.

The claimant brought a libel claim concerning allegations of anti-Semitism published on two United States-based boxing websites. The first defendant and his promotion company were resident or based in the United States, and the third defendant was a New York attorney involved in related New York litigation.

A Master permitted service of the claim form out of the jurisdiction under CPR Part 6. The defendants applied to set that order aside, arguing that the court lacked jurisdiction and that England and Wales was not the proper place for the claim. The central issues were whether publication occurred in England when the material was downloaded, whether there was a serious issue to be tried as to the defendants' responsibility, and whether England was the appropriate forum.

1. Application dismissed. The order permitting service of the claim form out of the jurisdiction was maintained.
2. English law treats publication of defamatory internet material as occurring when it is downloaded and read. The relevant publications were therefore capable of constituting publications in England and Wales, notwithstanding that the defendants and websites were based in the United States. The court relied on Bata v Bata (1948) WN 366, Godfrey v Demon Internet [2001] QB 201, Loutchansky v Times Newspapers Ltd [2002] QB 783 and Gutnick v Dow Jones Inc [2002] HCA 56.
3. English law recognises neither a single-publication doctrine nor a requirement to prove actual damage at this stage. Damage is presumed in defamation, and the claimant could recover only for injury to reputation suffered in England and Wales. The court relied on Shevill v Presse Alliance SA [1996] AC 959, Berezovsky v Michaels [2000] 1 WLR 1004 and Diamond v Sutton (1866) LR 1 Ex 130.
4. The place where the tort was committed ordinarily provides a strong indication of the natural forum. That consideration was reinforced by the claimant's substantial reputation, business connections, contacts and likely witnesses in England. The court applied the principles in The Albaforth [1984] 2 Ll.R. 91 and Berezovsky v Michaels [2000] 1 WLR 1004.
5. The claimant's case that the first and second defendants had sanctioned or participated in the publications was a matter of inference from the surrounding circumstances, not mere speculation. It was plainly arguable and constituted a serious issue to be tried. Legal professional privilege did not make the argument incapable of succeeding at the interlocutory stage.
6. Chadha v Dow Jones Inc [1999] EMLR 724 was distinguishable because that case lacked comparable evidence of connection with England or injury to reputation here. The possibility that the claim would not survive under New York defamation law also made detailed comparison of the relative convenience of the two forums largely theoretical.

The judgment determined an application to set aside an order made by Master Whitaker on 2 October 2003 permitting service of the claim form out of the jurisdiction. The application was dismissed and the Master's order remained in force.