In an increasingly online world, international businesses can no longer rely on discrete legal advice relevant to only one jurisdiction. It is crucial to know where best to bring (or threaten) legal proceedings to achieve maximum impact globally.
Two recent, high profile cases have thrown the spotlight on what can be achieved by courts of different jurisdictions to defend online reputations. First, the decision by the Duke and Duchess of Cambridge to pursue a privacy claim through the French courts. Secondly, the pending decision of the German courts on Google's liability in defamation for its Search Results.
What is libel?
A statement is libellous if it would make reasonable members of the public think worse of the person or company about whom it was made. The libel has to be 'published' to a third party and that publication can take any form, including a blog, a tweet, a video on YouTube, and of course a traditional paper publication.
Why might you want to bring libel proceedings in England?
London has frequently been referred to as the 'libel capital of the world' for three key reasons:
- damages for libel under English law are much higher than other jurisdictions
- unlike the USA, there is no prohibition against a public figure bringing a libel claim
- unlike some other jurisdictions, in England the libel is presumed to be untrue (that is, the burden of proof lies with the defendant)
When can you bring libel proceedings in England?
Currently, a claimant can bring libel proceedings in England provided that the libel is 'published' here and subject to a test of 'substantial publication'.
For online publications, this means that the libel has to be read or viewed in this jurisdiction. In practice, if a libellous article appears in a French newspaper and that newspaper has a website, a claimant can generally choose to sue in this jurisdiction in addition to, or instead of, France. This approach will be tightened (although not substantially changed) by the new defamation bill expected to come into force in 2013.
Who can you sue for libel in England?
A key difference between England and other European jurisdictions is that currently under English libel laws you can sue almost anyone involved in the publication of the libellous words.
From an online perspective, this means that, subject to certain defences for 'innocent dissemination', a claimant may be able to sue any or all of the following: the ISP of a website (once they are on notice of the libellous words), the author and the editor of the website.
If a separate website has a hyperlink to the libel, you may even be able to sue the same entities responsible for that website. Again, the defences available to internet intermediaries will be strengthened by the new defamation bill.
Differences with other jurisdictions
What you cannot achieve in England (which you can in some European jurisdictions such as Germany) is the prevention by way of interim injunction of the publication of potentially defamatory statements.
In this jurisdiction, the serious financial consequences of losing a libel trial (and the final injunction available at trial) are considered to be an adequate remedy. Additionally, in contrast with France, where criminal libel laws afford a claimant a swift 'right of response', there is no speedy statutory means of defending your reputation.
When and where is Google a publisher of libel?
A claimant cannot deal with online libel without addressing the Google Search. It can be incredibly frustrating to obtain the removal of a libellous article only to find its title along with the key offending words appearing as the first hit in Google's Search Results.
English law currently does not consider Google is a 'publisher' of libel when its algorithms create search results or suggest auto-completions of search terms. This ruling can be contrasted with the decision of the French courts, however, who have found that Google is a publisher of libel.
Courts in Italy and Japan have also ruled against Google on similar matters and German lawyers are awaiting the results of Bettina Wulff's case on the very same issue.
So who should you contact?
It is beyond the scope of this briefing to provide a detailed analysis of libel laws across the globe.
What is important is that global businesses contact lawyers who are alive to the issues involved and who know who to contact across jurisdictions to ensure that damage to a global reputation is dealt with effectively and appropriately.