In a recent multi-jurisdictional defamation case, the Court of Appeal had to determine whether the Court had jurisdiction to make an injunction to prevent further internet publications of the statement complained of in England and Wales and/or to grant an order that required the Defendant (an Italian newspaper) to publish a summary of the judgment in England and Wales.
The Defendant (Gedi Gruppo Editoriale SpA, CACiv), an Italian media conglomerate, reported a story via a daily newspaper (La Repubblica) and a weekly current affairs magazine (L’Espresso) on the alleged misuse of Vatican funds which identified the Claimant, Raffaele Mincione, as one of the individuals involved.
Mincione v Gedi Gruppo Editoriale SpA, CACivD
The Claimant brought a defamation claim concerning the Defendant’s online publication of four separate articles and two YouTube videos, all of which were available in England and Wales. Most of the articles were in Italian, however, the first article had been translated into English. The Claimant sought damages, an injunction to restrain the Defendant from further publication of the defamatory statements, and an order under Section 12 of the Defamation Act 2013 (DA 2013) that the Defendant publishes a summary of the judgment.
The Defendant took the view that the English Court did not have jurisdiction to hear the claim for injunctive relief or an order under Section 12 of the DA 2013. It was however accepted by all parties that the Courts of England and Wales did have the necessary jurisdiction over the claim for damages on the basis that England and Wales is “the place where the harmful event occurred” within the meaning of Article 7(2) of the Recast Brussels Regulation, EU 1215/2012.
The question before the Court was whether Article 7(2) gives the Court the power to grant two further remedies: an injunction and an order under Section 12 of the DA 2013.
The Judge in the first instance, Tipple J, took the view that the Courts of England and Wales did not have jurisdiction over either the claim for injunctive relief or the claim for an order under Section 12 of the DA 2013. The Claimant appealed the decision to the Court of Appeal.
The Court of Appeal’s decision
Jurisdiction to grant an injunction
In short, the Court of Appeal disagreed with Tipple J’s reasoning for her decision but ultimately decided that she was right to find that the Courts of England and Wales did not have the jurisdiction to hear the claim for an injunction.
When coming to a decision the Court of Appeal looked at the judgment of Bolagsupplysningen OŰ v Svensk Handel AB (Case C-194/16) which was heard in the Estonian Supreme Court. Bolagsupplysningen is a useful authority as to the Court’s power where there are (or likely to be) multiple libel actions in different jurisdictions. This is often referred to as “mosaic Court”’.
In Bolagsupplysningen it was held that where information has been published on the internet and is accessible in the many Member States, a person cannot bring an action in the Courts of each Member State to remove the information.
The Court of Appeal took the view that Bolagsupplysningen makes it clear that:
“a mosaic Court cannot grant an order for rectification or deletion of source material because there are single and indivisible remedies with ubiquitous effects. The case does not decide, nor does it compel the conclusion, that a mosaic Court has no power to make an order limited to restraining the defendant from repeating the same unlawful conduct within that same jurisdiction.”
Jurisdiction to make an order under Section 12
Section 12 of the DA 2013 gives the Court the power to order a defendant in a claim to publish a summary of the judgment following the conclusion of a case.
The Court of Appeal acknowledged that the purpose of Section 12 is to mitigate any reputational harm caused by the publication whereas the purpose of an injunction is to prevent any future harm from occurring.
The Court of Appeal first looked at whether the Section 12 Order (if made) would have an extra-territorial effect. The Court of Appeal took the view that:
“even if the information would inevitably be disseminated outside this Court’s jurisdiction the content would necessarily be exclusively concerned with harmful events in this jurisdiction.”
The Court of Appeal then turned their attention to whether it would be possible for the Defendant to target messages at those who had already read the article within England and Wales. The Court of Appeal took the view that the Defendant could use its standard method of delivering content to its subscribers to send the summary of the judgment.
The Court of Appeal ultimately decided that the Court did have the necessary jurisdiction to make a limited domestic internet Section 12 Order and Tipple J’s order was amended to reflect this.
This case demonstrates that there are several powerful tools at the Court’s disposal when it comes to defamation claims.
It is important to note that if this case was started today (after Brexit) the Court would not have jurisdiction unless the Claimant could in accordance with Section 9 of DA 2013 present a good arguable case that England and Wales were the most appropriate place to bring the action.
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