Raffaele Mincione v Gedi Gruppo Editoriale S.p.A

This Court of Appeal considered whether English courts have jurisdiction under Article 7(2) of the Recast Brussels Regulation (EU) No 1215/2012 to grant (a) an injunction restraining further internet publication limited to England and Wales and (b) an order under section 12 of the Defamation Act 2013 requiring publication online in this jurisdiction of a summary of the judgment, where the claim is brought on the "mosaic" basis (i.e. England and Wales as one of the places where the harmful event occurred).

The court held that Article 7(2) can in principle support a territorially limited domestic internet injunction: Article 7(2) confers jurisdiction on courts of places where harmful internet publication has occurred or may occur and that jurisdiction may extend to injunctions preventing publication that may occur within that court’s territory. However, on the undisputed evidence in this case any injunction framed as limited to England and Wales would inevitably have extraterritorial effect (including in Scotland and Northern Ireland and elsewhere) and the court therefore lacked practical jurisdiction to grant the relief sought. The court further held that the CJEU decision in Bolagsupplysningen is properly understood as precluding mosaic courts from ordering rectification or deletion of source material (remedies with necessarily global effect) but does not categorically prevent a mosaic court from granting a domestic internet injunction confined in effect to its territory.

Finally, the court concluded that, on the evidence before it, a narrowly framed domestic section 12 order targeting the defendant’s subscribers in England and Wales could be made without inevitable extraterritorial effect and that there is jurisdiction for such a limited order, although any interference with freedom of expression would be addressed at trial.

Background and parties:

• The appellant is an Italian national with acquired British citizenship resident in Switzerland. The respondent is an Italian-domiciled publisher of La Repubblica and L’Espresso.
• The claim arose from four articles and two YouTube videos first published in Italy in late 2020, all accessible online from England and Wales. The claimant sued in England and Wales seeking damages, a domestic internet injunction and a domestic internet section 12 order under the Defamation Act 2013.

Procedural history:

• The claim was commenced before the end of the Brexit implementation period and therefore jurisdiction was governed by the Recast Brussels Regulation (RBR). The defendant applied under CPR Part 11 for declarations that the English court had no jurisdiction to grant the requested internet injunction or section 12 order. Tipples J in the High Court declared no jurisdiction to grant either remedy; the claimant appealed.

Relief sought:

• (i) Damages (limited to publication in England and Wales); (ii) an injunction restraining further internet publication in England and Wales; (iii) an order under section 12 requiring publication online in this jurisdiction of a summary of the judgment.

Issues framed by the court:

• Whether Article 7(2) of the RBR confers jurisdiction on a court seised on the mosaic basis to grant (A) a domestic internet injunction and (B) a domestic internet section 12 order; and (C) whether, on the facts and evidence, any such domestic injunction would inevitably have extraterritorial effect so as to defeat jurisdiction in this case.

Court’s reasoning and conclusions:

• The Court of Appeal reviewed the relevant CJEU jurisprudence (Mines de Potasse, Shevill, eDate, Bolagsupplysningen and Gtflix) and domestic authorities. The court held that Bolagsupplysningen must be read narrowly: it precludes mosaic courts from granting orders aimed at rectification or deletion of source material because those remedies are "single and indivisible" and inevitably have global effect.
• By contrast, Shevill and eDate support the proposition that a mosaic court can in principle grant an injunction to restrain future publication that may occur within its territorial jurisdiction; the jurisdiction under Article 7(2) extends to harmful events that may occur in the forum.
• On the undisputed factual evidence (in particular the unchallenged evidence about the respondent’s content delivery and geo-blocking capabilities), any injunction framed as limited to England and Wales would in practice have effects beyond that territory (including Scotland, Northern Ireland and other jurisdictions), and therefore the court lacked jurisdiction to grant the injunction sought in this case. The Judge’s declaration that there was no jurisdiction to grant the injunction was upheld on that basis.
• As to a section 12 order, the court recognised important differences (retrospective/ discursive remedy; publication of new material targeted at affected readers). On the evidence before the court, a narrowly targeted domestic internet section 12 order aimed at the respondent’s subscribers in England and Wales could be complied with without inevitable extraterritorial effect and the Court of Appeal concluded there is jurisdiction, on the facts, to make such a limited order; any proportionality or Article 10 considerations remain for trial.

Practical point: the court emphasised that technological facts are central to the jurisdictional question and that conclusions will depend on the concrete evidence in each case.

This is an appeal from Tipples J [2021] EWHC 2006 (QB). The Court of Appeal dismissed the appeal. Lord Justice Warby concluded that, although Bolagsupplysningen should be read narrowly and Article 7(2) can in principle support a territorially limited domestic internet injunction, on the undisputed evidence any injunction limited in form to England and Wales would inevitably have extraterritorial effect and so the court lacked practical jurisdiction to grant it; the Judge’s declaration of no jurisdiction to grant the injunction was therefore upheld. The court further concluded that Bolagsupplysningen precludes mosaic courts from ordering deletion/rectification of source material but does not bar a domestic internet injunction in principle. On the question of a domestic section 12 order, the Court of Appeal held that, on the evidence before it, there is jurisdiction to make a narrowly framed domestic internet section 12 order directed at the defendant’s subscribers in England and Wales, and accordingly the Judge’s blanket declaration of no jurisdiction in respect of section 12 was to be amended to reflect that limited jurisdiction; any interference with freedom of expression remains a matter for trial.

Appeal from the High Court of Justice, Queen’s Bench Division, Media and Communications List (Tipples J) [2021] EWHC 2006 (QB) to the Court of Appeal ([2022] EWCA Civ 557).