Amoudi v Brisard & Anor

There is no rebuttable presumption of law that material placed on an openly accessible Internet website has been substantially published within the jurisdiction. The claimant bears the burden of proving publication. Publication may be established by direct evidence or by inference from a platform of facts, including evidence from which substantial publication may properly be inferred. Whether the evidence supports that inference is ordinarily a question for the tribunal of fact. The availability of material on the Internet, without proof that a third party accessed and saw it, does not by itself establish substantial publication.

The claimant brought a defamation claim concerning two reports placed on the defendants’ website. The defendants denied that either report had been published to a substantial number of readers within England and Wales.

The claimant sought a preliminary ruling that substantial publication within the jurisdiction should be presumed, subject to rebuttal. He also sought strike-out or summary judgment on the parts of the Defence denying publication. The central issue was whether Internet accessibility alone gave rise to a rebuttable presumption of substantial publication.

1. Application refused. The passages in the Defence denying publication were not struck out, and summary judgment was not entered for the claimant on publication.
2. The court distinguished a rebuttable presumption of law from an inference of fact. A presumption of law may shift an evidential or persuasive burden. An inference is a conclusion which the tribunal of fact may draw from proved facts and common human experience. The claimant’s case depended on the former, but English law did not recognise such a presumption for Internet publication.
3. The general rule is that the claimant must prove that the defamatory words were read or seen by a third party. In an Internet case, this may be proved by evidence that a person accessed and downloaded the material, or by a platform of facts from which substantial publication within the jurisdiction can properly be inferred.
4. Fullam v Newcastle Chronicle [1977] 1 WLR 651 did not establish a contrary rule. It concerned the pleading of publication where an innuendo meaning depended on extrinsic facts.
5. The observations of Sedley LJ in Steinberg v Pritchard Englefield [2005] EWCA Civ 288 were treated as obiter. They meant that, on the facts of that case, an inference of substantial access was irresistible, not that Internet publication was subject to a legal presumption.
6. The approach in Loutchansky v Times Newspapers Ltd (No 2) [2001] EMLR 876 was applicable. Evidence of website visits, without evidence that the particular material was accessed, left publication an issue of fact for the jury. Jameel v Dow Jones Inc [2005] QB 946 provided further support: the claim was struck out because the proved publication was minimal, without any presumption of substantial publication being suggested.
7. It would be premature, before exchange of witness statements, to conclude that a jury could not reasonably draw an inference other than substantial publication.