First Eng Internet Libel Decision

27 February 2004

Graham Smith

An English court has decided to take jurisdiction in a libel case brought by boxing promoter Don King against boxer Lennox Lewis, his promotions company Lion Promotions LLC and a US attorney, Judd Burstein. The case concerns comments alleged to have been made by Mr Burstein and published on two websites based, apparently, in the USA.

The case, Don King v Lennox Lewis, Lion Promotions LLC and Judd Burstein [2004] EWHC 168 (QB), is the first libel case in which an English court has ruled on jurisdiction where the internet was the sole means of publication. The judgment of Mr Justice Eady takes to its logical conclusion a line of cases holding that for defamation purposes internet statements are published where they are downloaded. It confirms that, if the claimant has a reputation in England, an English court can take jurisdiction and apply English law in a defamation case based on the mere availability of a foreign website in England.

The case concerned statements alleged to have been made by Mr Burstein, an attorney representing Lennox Lewis and his company in US litigation with Don King, in an article and an interview published on www.fightnews.com and www.boxingtalk.com respectively. The defendants described these as "United States-based" publications. The proprietors of the websites were not parties to the proceedings.

The defendants applied to set aside service in the USA of the English defamation proceedings. To resist this application the claimant had to establish that it was an appropriate case for service out of the jurisdiction and that England and Wales was the appropriate forum in which to hear the case.

For service out of England and Wales to be permitted, the damage had to have been sustained within the jurisdiction, or have resulted from an act committed within the jurisdiction. The claimant argued:

1. That the common law currently regards the publication of an internet posting as taking place when it is downloaded.

2. That English law does not recognise a "single publication" rule (i.e. each publication of a statement gives rise to a separate cause of action, rather than the US approach where there is one global act of publication.)

3. In defamation, damage is presumed to have occurred.

4. That he had limited his claim to publication within England and Wales.

As regards whether England and Wales was the appropriate forum, the claimant argued that there was a general presumption that the natural forum was that of the jurisdiction where the tort was committed; that it gave a significant dimension to the case that he had a reputation to protect specifically in England; and that the English courts were the natural forum in which to vindicate an English reputation.

There was also evidence that the two websites were popular and frequently accessed by people in the English jurisdiction; and that once news was place on either website, it quickly went round the boxing community by phone calls, word of mouth or by forwarding via computers.

The defendants submitted, inter alia, that there had never been another case in which a US resident obtained permission to serve English proceedings out of the jurisdiction against another US resident in respect of a United States based publication. The judge, however, commented that that missed the point about the nature of the internet publications and the fact that English law regarded the website publications in question as having occurred in England.

The defendants also argued that none of them authorised the downloading in England. They suggested that merely facilitating the ultimate act of downloading was not enough to fix them with liability. The claimant argued that the Mr Burstein caused the ultimate publications in England by having said what he did to the two websites. The judge concluded that that was an arguable case, which sufficed for the purposes of the jurisdiction application. There was further argument as to whether Mr Burstein's alleged statements could be attributed to the other two defendants, as to which the judge also held that there was an arguable case.

The judge concluded that the claim should be allowed to go forward in England and Wales. It remains to be seen whether the decision will be appealed to a higher court.


Important - The information in this article is provided subject to the disclaimer. The law may have changed since first publication and the reader is cautioned accordingly.

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