The owners of a Scottish guesthouse have failed in their appeal challenging the decision of the Court of Session not to order TripAdvisor to reveal the authors of "defamatory" online comments.   

Background

Mr and Mrs Clark run a guesthouse at Kinlochleven, near the West Highland Way.  The guesthouse was the subject of "unfavourable" anonymous comments on the travel website operated by US-based TripAdvisor.  The Clarks raised an action in the Court of Session to ask the Court to use its powers under section 1(1A) of the Administration of Justice ( Scotland) Act 1972 to order TripAdvisor to disclose the identity of the persons responsible for the comments. 

The court refused to grant the order sought by the Clarks.   The Court stated that the 1972 Act was applicable in Scotland alone and that the Court should not assert a global jurisdiction it did not have.

The Appeal

The Clarks appealed on the grounds that the terms of the 1972 Act had an “extraterritorial dimension”.  They argued that because section 1(1A) of the 1972 Act was widely-worded, it was within the power of the Court to make the order sought and the physical location of the server for the website was “irrelevant”.   

The couple submitted that even if the order to disclose the names and addresses of the authors of the comments was not enforceable in a foreign country, this did not mean the court was precluded from making the order.

The Decision

The Inner House refused the appeal.

  • They agreed with TripAdvisor that the effect of section 1(1A) did not extend beyond Scotland and, as such, the Court had no jurisdiction over TripAdvisor as a US based company
  • They stated that orders issued by the Court of Session could not be inferred as being optional.  If the Court ordained a company to provide information, that must be obeyed.  It would not be appropriate for the Court to issue an order in the expectation of it not being enforceable
  • The Court considered that TripAdvisor's terms and conditions were unambiguous and did not convey that the company could be bound by an order of the Scottish Courts

Comment

The decision is a blow for people in Scotland seeking to prevent defamatory comments on the internet.   The majority of internet content flows from outside Scotland.   Following this judgment the Scottish courts will not oblige foreign companies to disclose the identity of anyone publishing defamatory material the subject of which is based in Scotland.   

Notably, the English courts have adopted a different approach and have asserted extra-territorial jurisdiction in relation to similar disclosure orders. 

For the full judgment click here.