In a ruling that will be welcomed by online publishers, Ireland’s Court of Appeal has declined jurisdiction in a defamation action on grounds that there was no evidence of publication in Ireland and there was only a tenuous connection between the tort and Ireland.
Ryanair sued a former pilot for damages for defamation following comments posted on an US-operated internet forum.1 The defendant, an Australian with no connections with Ireland, took part in an online discussion relating to an incident that had occurred in Spain. Ryanair had sought and obtained leave from the Irish High Court to serve proceedings on the defendant in Australia. He successfully applied to set aside leave to serve him. Ryanair appealed against that ruling.
The Court of Appeal upheld the High Court’s decision, emphasising that there was no evidence that the allegedly defamatory material had in fact been accessed or downloaded by anyone in Ireland and that at best Ryanair’s position was that it could have been read within Ireland. The Court also considered the importance of predictability in the assessment of jurisdictional risk – the defendant could not reasonably have anticipated that proceedings in Ireland were likely and that was a factor to be taken into account in assessing whether Ireland was the forum conveniens.
The “Professional Pilots Rumour Network” (PPRune) forum is used by pilots to post comments in relation to aviation matters, including aviation safety, and is operated by a company based in California, USA. The forum is publicly accessible but participants in the forum are required to register with the site. In September 2012, a debate sparked on the forum following an initial post that four Ryanair aircraft flying to Spain on a particular evening had declared fuel emergencies following a heavy thunderstorm in Madrid requiring the diversion of aircraft. Ryanair claimed that Mr Fleming’s comment, which challenged both the experience of the Ryanair pilots and the wisdom of the minimum fuel policies he claimed it practised, was defamatory of the airline.
Ryanair successfully brought an application to extend the one year time period for initiating defamation proceedings and was granted leave to serve Irish proceedings on him in Australia. Mr Fleming entered a conditional appearance but successfully set aside the order for service out of the jurisdiction.
Conflict of laws, foreseeability and internet defamation
The Court of Appeal considered the fundamental principle in conflict of laws that “absent special circumstances, a defendant should normally be sued in the place where he or she is domiciled”. The Court observed that where there are competing jurisdictions, foreseeability is relevant; whether a person could reasonably foresee that their conduct might expose them to a risk of having to defend proceedings in that foreign jurisdiction should be taken into account.
The Court observed that these considerations particularly apply to internet defamation due to technological developments. Content placed online “may be consulted instantly by an unlimited number of internet users throughout the world, irrespective of any intention on the part of the person who placed it [there]…and outside that person’s control” (eDate Advertising GmbH –v- X).2
Despite this capacity for worldwide publication, to ground its jurisdiction the Court had to determine whether “publication” to a third party within the meaning of section 6 (2) of the Defamation Act, 2009 could be established. Actual proof of publication was required and it was for the plaintiff to provide such evidence. Ryanair’s evidence that twelve participants in the forum identified themselves by reference to an Irish location was insufficient and did not “in and of itself necessarily mean that any of them actually accessed or downloaded Mr Fleming’s post when they were in Ireland”.
The connection between the tort of defamation and Ireland was too tenuous. Even if some technical jurisdiction was arguable, it could only have been on “the rather slender and exiguous basis that a handful of contributors to the forum discussion had accessed or downloaded the offending post in question in this jurisdiction”, and even if the Irish courts had jurisdiction, it should be refused on grounds of forum conveniens. The comments were made by an Australian in Australia, on a website hosted in California about events which took place in Spain. The only link to Ireland was the domicile of the plaintiff company. Indeed the Court observed that Ryanair is a huge multinational corporation with enormous assets and that it would be far easier for Ryanair to commence proceedings in Australia than for Mr Fleming to travel to Ireland to defend them. This was also a relevant factor to be taken into account.
This decision shows that the Irish courts will be slow to accept jurisdiction unless there is a clear link between the tort and Ireland, which will require evidence of actual rather than notional publication within Ireland. It also confirms that even where there is such evidence the publication must be real and substantial in order to ground jurisdiction. This decision will be welcomed by online publishers given the increasing attraction of Ireland as a forum for defamation claims.