El Diwany v Hansen & Anor

In internet libel claims, the availability of material online does not create a presumption of publication in England and Wales. The claimant must plead facts from which publication to a sufficient number of people in the jurisdiction can safely be inferred. Search-engine prominence alone is insufficient. A defendant is not ordinarily liable for an automatically generated translation supplied by a third-party service.

Where words were spoken abroad, jurisdiction and limitation must be assessed by reference to the place of the harmful event and the applicable limitation period. Proceedings may also be struck out as an abuse of process where, viewed in the round, they are a further form of harassment or an attempt to undermine prior foreign proceedings.

The claimant brought two related libel actions concerning an article first published in Norway. The first action was against a Norwegian journalist and a Norwegian police officer. The second was against the Ministry of Justice and the Police of Norway, on the basis of alleged vicarious liability for the police officer’s conduct.

The police officer applied to set aside a default judgment and to strike out the claim. The Ministry applied to set aside permission to serve out of the jurisdiction and relied on state immunity. The central issues were whether the claims were properly characterised as slander or libel, whether there had been actionable publication in England, whether the claims were time-barred or abusive, and whether state immunity applied.

1. Default judgment. The default judgment against the police officer was set aside under CPR rule 13.3(1)(a) and (b). Although the acknowledgement of service was defective because it omitted a United Kingdom address, the default was excusable. The defendant had acted promptly, had not ignored the proceedings, and had a real prospect of defending the claim.
2. Slander and jurisdiction. As pleaded, the claim against the police officer was principally a claim in slander for words spoken to the journalist in Norway. Under the Lugano Convention, the claim could be brought in the defendant’s domicile or where the harmful event occurred. Both were in Norway, so the English court had no jurisdiction.
3. Limitation and actionable meaning. Any slander claim was time-barred under section 4A of the Limitation Act 1980. A claim that the claimant was mentally unwell was not actionable in slander without proof of special damage, since it did not fall within section 2 of the Defamation Act 1952.
4. Publication on the internet. A claimant must prove publication to a third party in the jurisdiction, or plead facts from which it can safely be inferred. There is no presumption that online availability establishes publication. Search-engine rankings and limited evidence of internet hits did not establish publication in England during the relevant period. The defendants were not liable for Google’s automatically generated, inconsistent and sometimes unintelligible translation.
5. Abuse of process. The court adopted a broad, merits-based assessment of all the circumstances. Although the Norwegian proceedings did not create cause of action estoppel or issue estoppel between the parties, the proceedings were abusive when viewed in the round. They were stale, involved only modest possible publication, sought to reopen matters addressed by Norwegian courts, and constituted a further aspect of the claimant’s harassment of the police officer.
6. Ministry and state immunity. The claimant had failed to satisfy the requirements for permission to serve a foreign state out of the jurisdiction. The police officer’s communications with the press were made in her public role and did not constitute a commercial transaction. The claims against the police officer and the Ministry were struck out, and there was judgment for the defendants in both actions. The claim against the journalist was necessarily ill-founded.