A recent Irish case, CSI Manufacturing Ltd v. Dun and Bradstreet1 ruled on whether the Irish courts have jurisdiction to hear defamation proceedings where (i) the publisher of the allegedly defamatory material is not domiciled in Ireland; and (ii) the publication has been accessed only by parties outside of Ireland.
The applicant is a producer of industrial labels and signage. It is an Irish registered company and has its business premises in Ireland. The respondent publishes online credit information and ratings, available on a subscription basis. It is a UK registered arm of a major multinational corporation. Although domiciled within the EU, it is outside the jurisdiction of the Irish courts.
In May 2012, the respondent published an online assessment report on the applicant which questioned its creditworthiness. The applicant issued defamation proceedings and it sought a declaratory order that the publication was false and defamatory. It also sought a correction order, and a prohibition order or injunction relating to future publications.
The respondent applied for either an order to strike out the claim or an order to set aside delivery of the summons. It argued that Dublin’s Circuit Court had no jurisdiction to hear the action under s 28 of the Irish Defamation Act 2009. This provision requires any applicant to issue proceedings in the court of the Irish ‘circuit’ where:
- the statement to which the application relates was published, or
- the defendant, or one of the defendants, as the case may be, resides.
As above, the publication in question was online and therefore the issue of jurisdiction depends on the location of publication. The respondent claimed that the only publication of the material occurred outside the jurisdiction in Belfast and the court in question and it therefore had no jurisdiction. The respondent failed with this argument in the Circuit Court and appealed the matter to Judge Kearns in the High Court.
Judge Kearns identified three cases – Martinez2, Shevill3 and Coleman4 – relevant to his consideration of the legal question before him.
Turning first to the Irish authority, Coleman, he noted that the case involved an alleged defamation of the plaintiff by an English newspaper. In that case, the defendant brought an application for an order that the court decline jurisdiction to hear the matter. The Supreme Court acknowledged the complexities of online publication, but in circumstances where the plaintiff’s pleaded case did not refer to online publication and the plaintiff put no evidence before it of online publication and hits on the website regarding the story. Therefore, the court ruled that it did not have jurisdiction to determine the plaintiff’s claim in Ireland.
In the Martinez case, the ECJ considered the issue of jurisdiction in the context of online defamation as follows:
- The court first examined the nature of the internet publication and recognised the need for a more adapted response.
- For this purpose, it created a new jurisdictional ground, referable to the location of the ‘centre of interest’ of the affected party, which would allow for the recovery of all the damages.
- Otherwise it confirmed the existing rules as laid down in the Shevill case.
The Shevill case itself determined that a defamation complainant may bring an action in:
- The courts of the state in which the publisher of that content is established, for the entirety of the damage; or
- The courts of each state in which the publication was distributed and where the victim claims to have suffered damage to his reputation, for the part of the damage linked to that state’s publication.
Judge Kearns ruled that the Martinez decision set out the applicable law in relation to this matter and clarified that for internet publication, it suffices that the content has been placed online or otherwise made accessible in the country of receipt.
However, in the case before Judge Kearns, which was akin to the Coleman case above, it could not be inferred that publication had occurred because the respondent’s site is a subscription site. This meant that publication was to a restricted audience and the information was not readily available across jurisdictions. As only one subscriber, a Belfast company, had accessed the material, Judge Kearns ruled that the applicant had not proven publication in the Republic of Ireland in accordance with s 28 of the Defamation Act 2009, above.
Judge Kearns also ruled that it was relevant to consider the centre of interest of the injured party. However, he said that the centre of interest test can only be applied once it is established that the material is published and read in the Republic of Ireland, which was not the case. There was no proof that the material had been accessed by subscribers in the Republic of Ireland:
“… for the centre of interest test to apply it must also be established that material was published and read in Ireland. Based on the test in Coleman and the fact that the subscription site is not readily accessible it cannot be said that the centre of interest can apply where the Shevill rules acknowledge the two steps of publication and the place of receipt of communication.”
In light of the above and the failure of the applicant to prove publication, Judge Kearns found in favour of the respondent and he allowed the appeal.
This case highlights how jurisdiction is an important issue where a defamation complaint relates to an online publication. Evidence of online publication may not suffice, particularly where there is restricted access to the information online. It may also be necessary to prove access to the relevant material, depending on the circumstances of the online publication in dispute.