Supreme Court allows appeal dismissing jurisdiction due to lack of evidence for internet publication of defamation.

THE SUPREME COURT

Appeal No. 055/2007

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O’Donnell J.

Between/

John Coleman

Plaintiff/Respondent

and

MGN Limited

Defendant/Appellant

Judgment delivered on the 15th day of March, 2012 by Denham C.J.

1. This is an appeal by MGN Limited, the defendant/appellant, referred to as “the appellant”, from the judgment and order of the High

Court (Charleton J.) made on the 15th January, 2007, (perfected on the 5th February, 2007) refusing the appellant’s application.

2. The appellant had brought a motion before the High Court seeking an order that the Court has no jurisdiction, in the following

terms:-

(i) An order that the Court decline jurisdiction pursuant to Council Regulation EC No. 44/2001 and/or S.I. 52 of 2002

and/or the Rules of this Court.

(ii) A declaration that in the circumstances of this case the Court has no jurisdiction over the subject matter of the

proceedings.

(iii) An order striking out and/or staying the proceedings.

(iv) An order setting aside service of these proceedings on the appellant.

(v) Such further or other relief as the Court shall deem fit.

(vi) An order providing for the costs of these proceedings.

3. John Coleman, the plaintiff/respondent, referred to as “the plaintiff” had commenced proceedings by filing a plenary summons on

the 7th June, 2006, claiming damages for defamation, damages for breach of contract, negligence, breach of duty and breach of

statutory duty. A memorandum of conditional appearance was filed on behalf of the appellant to contest the jurisdiction of the Court.

4. In the Statement of Claim the plaintiff pleaded matters relating to tort and contract. In submissions before this Court on the 8th

March, 2012, however, counsel for the plaintiff stated that the claim was now in tort alone, based on the jurisprudence in the linked

cases of eDate Advertising GmbH v. X (C 509/09) and Martinez v. Société MGN Limited (C 161/10) referred to as Martinez, and on

publication on the internet. Thus, the key aspects of the Statement of Claim relating to the tort, are as follows:-

“(i) The plaintiff is a gentleman and resides at Cordroon Cross, Claremorris, County Mayo.

(ii) The [appellant] is a limited liability company having its registered office at One Canada Square, Canary Wharf,

London E14 5AP, England, and is engaged in the business of publishing, selling and supplying newspapers inter alia

within the jurisdiction of this Honourable Court.

(iii) On or about the 13th March, 2003, the defendant falsely and maliciously published of and concerning the

plaintiff an article in its Daily Mirror newspaper under a heading ‘Yob War – Boozy: Lads on a typical night out in

Britain’, which contained a photograph of the plaintiff, which article further went on to state inter alia: ‘A major

crackdown on yobs, drunks, litter bugs and noisy neighbours was launched by David Blunkett yesterday. His

measures include £80 fixed penalty payments for teenage louts, fines for the parents of unruly under fifteens and

even removal from the family to foster parents for youngsters out of control …. Mr. Blunkett said …. ‘Our streets

should be free of loutishness, gangs of drunken hooligans or drug dealers. People have to live in a civilised society

and if we can’t do it by persuasion, we will have to do it through enforcement.’ …. Some offenders at youth courts

might lose the right to anonymity. Police will be able to shut crack dens within forty eight hours for up to three

months. Private landlords will be licensed to ensure tenants are fit and proper persons’ …. Key points: Fixed penalty

fines of £80 for yobs aged 16 – 18. Instant fines for parents of under fifteens who terrorise neighbourhoods. Instant

fines of £40 - £80 for graffiti, littering, fly tipping, fly posting, throwing fireworks and urinating in public. Police will

be able to disperse gangs of youths and escort unaccompanied kids back home if they are hanging around street

corners at night.’

The plaintiff will refer in greater particularity to the said article at the hearing of this action.

(iv) The said words in their natural ordinary meaning and/or by innuendo and the juxta position of a photograph of

the plaintiff and the said article meant and were understood to mean:-

(a) The plaintiff was a ‘yob’.

(b) The plaintiff was a drunkard.

(c) The plaintiff was guilty of criminal conduct.

(d) The plaintiff was a lout or part of a gang of drunken hooligans.

(e) The plaintiff was a drug dealer.

(f) The plaintiff was uncivilised.

(g) The plaintiff was being investigated by the Police or was likely to be investigated by the Police

for drunkenness, hooliganism, being a yob, drunk, lout or drug dealer.

(h) The plaintiff was a person who should be convicted by the courts of criminal activity and

should be imprisoned.

(i) The Plaintiff was likely to or was a person who should be investigated by the Police and should

be subject to criminal sanction by way of fine or imprisonment for his criminal behaviour.

(j) The plaintiff was not a fit person with whom to be associated with.

(k) The plaintiff had engaged in and was engaging in anti-social behaviour.”

There is reference in the statement to an agreement, following which there is a plea to a second act of publication by the appellant.

It is stated that the appellant:-

“… re-used the said photograph in a defamatory article in its newspaper edition of the 20th September, 2003, in an

article heading ‘Binge Britain’, which again contained the same photograph of the plaintiff, which newspaper was

circulated in Ireland and within the jurisdiction of this Honourable Court and was read by people in this jurisdiction,

which contained phrases inter alia:

‘Brits are the biggest boozers in Europe and the problem costs 22,000 lives and £22 billion a year. 40% of men binge

drink – defined as downing at least a bottle of wine in a session. The average boozer now knocks back 151% more

alcohol than they did fifty years ago …. More than 17 million working days are lost each year because of hangovers

and alcohol related illnesses costing firms £6.4 billion. 1 in 26 bed days in the NHS is taken up by those who have

over indulged.’

The plaintiff will refer in greater particularity to the said article at the hearing of this action.”

It was pleaded that the plaintiff had been defamed by the article and photograph, and has suffered loss, damage and expense, and

there is a claim for aggravated, exemplary and punitive damages. The plaintiff expressly confined his claim in respect of the second

publication to breach of contract.

5. On the motion of the appellant, seeking an order that the High Court decline jurisdiction, coming before the High Court on the 15th

January, 2007, the High Court refused the motion.

6. Counsel’s note of the ex tempore judgment of Charleton J. on the 15th January, 2007, which was approved by the learned High

Court judge provides:-

“This is an application that the Court should exercise an extreme jurisdiction, to stop this case on the pleadings only. I

have to take a statement of claim as being true in every respect. I therefore must take the statement of claim at its

height, including all inferences that might be drawn from the primary facts pleaded.

This is a difficult situation and one that raises the question ‘Where does libel occur?’ With internet publications nowadays

a recording from Saudi Arabia might end up in Ireland on the news. Because of the migratory movement of persons and

technological age we live in, a newspaper from abroad can arrive a day later in Ireland.

Take the law as stated in Gatley, eighth edition para. 266 that ‘the original publisher of a defamatory statement is liable

for its republication by another person where inter alia the repetition or republication of the words to a third party was

the natural and probable result of the original publication’. [quoted from Ewins –v- Carlton Television].

In the statement of claim the plaintiff has claimed that the publication [by the defendant] caused him damage in this

jurisdiction and that claim is repeated in the affidavit [filed in response to this motion]. He may therefore have a case.

However, if it is clear that the plaintiff’s case must fail, my preference is of course that everyone should be put out of

their misery now.

From Erwins –v- Carlton Television, the Rules under the Brussels Convention seem to be clear. In that case, Mr. Justice

Barr held that where there was publication in several jurisdictions the plaintiff has a choice.

The rules as to where damage occurs can be seen in relation to a car accident in France. In terms of defamation it is

different. Therefore when answering the question ‘Where did the damage occur?’ in terms of defamation, given that in the

Ewins case Mr. Justice Barr followed the decision in Shevill –v- Presse Alliance SA, the plaintiff is within his rights to

choose the jurisdiction. He may not be able to prove publication but he could prove it if someone brought back a copy of

the paper from the United Kingdom. There could be rumours flying around from emigrants and migratory workers from the

United Kingdom.

The question in contract is a lot less clear. Taking the statement of claim at its height the plaintiff should be entitled to

pursue his claim. I do not know if the plaintiff will succeed in proving the terms of the contract but, insofar as it is

suggested that there was an obligation to delete the [plaintiff’s] picture from the defendant’s database, presumably that

database is located in the British Island, not here.

I hope I am not continuing the misery of proceedings but in my opinion the appropriate order is to refuse the motion.”

7. The appellant filed a Notice of Appeal, setting out the following as the grounds of his appeal:-

“That the learned High Court judge erred in law and misdirected himself in that he:-

(a) held that the Court had jurisdiction over the subject matter of the proceedings.

(b) Held that the [appellant’s] application fell to be considered and determined on the basis of the

pleadings only.

(c) Held that the Court was obliged to take the statement of claim as being true in every respect and

at its height.

(d) Held that he was obliged to allow the plaintiff’s claim to proceed unless it was clear that such claim

must fail.

(e) Failed to hold that the onus was on the plaintiff to establish that the Irish courts had jurisdiction

under Council Regulation (EC) 44/2001 to hear and determine his claim, having regard to Article 2.1 of

that Regulation and the fact that the [appellant] is domiciled in England and Wales and/or failed to hold

that the plaintiff had failed to discharge that onus.

(f) Failed to have any or any proper regard to the evidence and, in particular, the absence of any

evidence that the relevant editions of the Daily Mirror were published or circulated in this jurisdiction

and the unopposed evidence of the [appellant] that they were not.

(g) Held (or appeared to hold) that, even in the absence of publication in this jurisdiction, proceedings

here might be justified on the basis that the plaintiff’s reputation here was damaged because ‘there

could be rumours flying around from emigrants and migratory workers from the United Kingdom.’

(h) Failed to hold that the place where the alleged harmful event occurred within the meaning of Article

5.3 of Regulation EC No. 44/2001 was in the United Kingdom and not within the jurisdiction of this

Honourable Court and, in so far as relevant, failed to hold that the place of performance of the alleged

obligation in question within the meaning of Article 5.1 of Regulation EC No. 44/2001 and/or SI 52 of

2002 was in the United Kingdom and not within the jurisdiction of this Honourable Court.”

8. This appeal was before the Court on the 21st October, 2010. It was indicated to the Court, in the course of the hearing, that

there was evidence of circulation of the appellant’s newspaper in Ireland but that it was not before the Court. There was a belief by

counsel for the plaintiff, on instructions, that the Daily Mirror newspaper in issue was available in Ireland in ordinary retail outlets. In

the circumstances, time was given to the plaintiff, and to the appellant, to file evidence on affidavit. Further affidavits were filed on

behalf of both parties.

9. On the 25th January, 2012, the Registrar of the Supreme Court wrote to the parties proposing 15th February, 2012, for the

resumption of the hearing. Counsel for the plaintiff was not available on that date. It was then proposed, and agreed by the parties,

that a different formation of the Court would resume the hearing on the 8th March, 2012.

10. On the case resuming on the 8th March, 2012, counsel for the plaintiff confirmed that the case is now simpler. The claim is now

one of internet publication based on the jurisprudence in the linked cases of eDate Advertising GmbH v. X (C 509/09) and Martinez v.

Société MGN Limited (C 161/10) referred to as Martinez. It was submitted that the Daily Mirror is on line every day. Counsel admitted

that there was no evidence of such publication or of a person accessing such a site. His submission related to an additional site, and

not to UKPressOnline which is an archival site, and which formed the substantial subject of the additional affidavit. Counsel submitted

that the Daily Mirror being on line it is presumed that there would be hits on the site. Thus, the case hinges on the issue of

publication on the internet.

11. Therefore, the case has changed since last before this Court. At that time counsel had instructions as to evidence available as to

copies of the Daily Mirror newspaper being available in Ireland. It was to enable him to bring such evidence to this Court that the case

was adjourned. However, it now transpires that those instructions to counsel were incorrect. Consequently, there was no need to

adjourn to obtain the evidence, but it did give the plaintiff the opportunity to bring evidence in support of his case to this Court. The

evidence related solely to access to an archival site UKPressOnline. On the hearing of the appeal, however, counsel sought to rely on

the presumed publication on the internet of the relevant editions of the Daily Mirror. It followed that there was no evidence of such

internet publication, or of access from Ireland.

Decision

12. The case is now one where it is the plaintiff’s case that the defamation was published on the internet. Specifically he referred to

the Daily Mirror on line. There was also reference to UKPressOnline, which is an archival website, to which institutions, such as

academics, have access if they subscribe, but there is no general access other than to a thumbnail miniature of part of the article

and photograph. It was agreed by counsel that the plaintiff could not be recognised on such a miniature, which could not be legibly

enlarged. Further, as the plaintiff’s name was not mentioned in the articles in question he could not be identified by a search on that

basis. Thus, the case for the plaintiff is now based on a publication of the Daily Mirror on line in 2003.

13. There has thus been a shifting nature to this appeal in its progress in this Court.

14. There are several relevant difficulties which arise on the plaintiff’s case. First, there is no pleading that the publication alleged of

the relevant articles is by internet publication of the relevant newspaper. Nor could such a pleading be inferred from the words of the

Statement of Claim. Secondly, there is a need for evidence of publication to establish the tort of defamation. There is no evidence

before the Court that the Daily Mirror was published on line in 2003. There is no evidence that the daily edition of the Daily Mirror was

on the world wide web in 2003. Thirdly, there is no evidence of any hits on any such site in this jurisdiction. These are fatal flaws in

the plaintiff’s case.

Conclusion

15. The basic grounds upon which the plaintiff now moves his case in this Court was never pleaded and is not established in evidence.

In spite of the ingenuity of counsel for the plaintiff in his submissions, these difficulties are insurmountable. Neither on the pleadings

nor on the evidence does the Court have jurisdiction. Consequently, I would allow the appeal, and order that in the circumstances of

the case the Court has no jurisdiction over the subject matter of the proceedings.