Raffaele Mincione v Gedi Gruppo Editoriale S.p.A

Article 7(2) of the Recast Brussels Regulation permits a court seised on the mosaic basis to restrain harmful internet publication which may occur within its own territory. Bolagsupplysningen does not remove that jurisdiction. It prevents orders to rectify or delete source material because those remedies are single and indivisible and normally have ubiquitous effects.

Jurisdiction depends on substance rather than the order’s wording. A purportedly domestic internet injunction is unavailable where compliance would inevitably restrict publication outside the forum. The territorial effect of a section 12 order under the Defamation Act 2013 must be assessed separately. A subscriber-targeted domestic summary may be within the court’s jurisdiction if it can be published without inevitable extra-territorial effect.

The claimant, an Italian national with British citizenship resident in Switzerland, sued an Italian media publisher in respect of allegedly defamatory articles and videos published online and accessible in England and Wales. His claim was confined to publication in that jurisdiction and sought damages, a domestic internet injunction, and a domestic internet order requiring publication of a summary of the judgment under section 12 of the Defamation Act 2013.

Tipples J held that the court lacked jurisdiction over both non-damages remedies: [2021] EWHC 2006 (QB). The appeal concerned whether Article 7(2) of the Recast Brussels Regulation, where jurisdiction was founded on the mosaic basis, permitted either remedy and whether the proposed relief would necessarily have effects outside England and Wales.

Appeal allowed in part. Warby LJ, with whom William Davis and Popplewell LJJ agreed, held that the first declaration concerning the injunction was correct, but for a different reason. The declaration concerning the section 12 order required amendment.

1. The judge had interpreted Bolagsupplysningen too broadly. Its ratio was confined to rectification or deletion of online source material. Those remedies are single and indivisible because their usual effect is ubiquitous. It did not decide that a mosaic court could never restrain future online publication within its own territory.

2. Article 7(2) of the Recast Brussels Regulation, read with Shevill and eDate, gives the mosaic court jurisdiction over harm which has occurred, or may occur, within that territory. In principle, this includes a domestic internet injunction preventing future local harm. It does not permit an order which would inevitably operate extra-territorially. Jurisdiction turns on the order’s substantive effect, not its territorial drafting.

3. On the undisputed technical evidence, compliance with an injunction limited in form to England and Wales would restrict access throughout the United Kingdom, and in some respects elsewhere. It was therefore, in substance, a single and indivisible remedy outside the court’s Article 7(2) jurisdiction. Section 6 of the Human Rights Act 1998 could not enlarge that jurisdiction.

4. A section 12 order serves a different, retrospective purpose. It seeks to mitigate harm from past publication by requiring new material to be published. The evidence did not show that a summary sent to the defendant’s subscribers in England and Wales would inevitably have extra-territorial effect. The court therefore had jurisdiction to make such a limited order, subject to the merits and any Article 10 considerations at trial. The order below was amended accordingly; otherwise the appeal was dismissed.

• Court of Appeal (Civil Division): Allowed the appeal in part and amended the order to recognise jurisdiction over a limited domestic internet section 12 order: [2022] EWCA Civ 557.
• High Court, Queen’s Bench Division, Media and Communications List: Tipples J declared that the court lacked jurisdiction over the claims for an internet injunction and a section 12 order: [2021] EWHC 2006 (QB).