Defamation and the Internet – UK Jurisdiction

Anyone who has ever had to deal with issues of jurisdiction or evidence gathering in an Internet related dispute will know what I am talking about when I say it has its challenges for lawyers.

There have been several lawsuits that involved the issues of jurisdiction and evidence relating to the Internet.

In one such important case there was the assertion that there was a rebuttable presumption of law that an article placed on an Internet website that is open to general access has been published to a substantial number of people within the UK jurisdiction.

The opponents denied that there had been any such substantial publication of the words complained of, in other words, that there was no such presumption of substantial publication merely by the offending content being made available to the public through the website in the jurisdiction. The lawyers for the Claimants were convinced that the defendants had no real prospect of defending the issue at trial and applied for summary judgment regarding those aspects of the defence which contest that publication had taken place “within the jurisdiction”.

The application for summary judgment failed and the judgment refused the request to remove the statement in the defence denying substantial publication.

In summary the arguments in favour of the Claimant were as follows:

1. That serious charges relating to international terrorism are involved and that the items published were made available to a “substantial” quantity of readers in the UK jurisdiction.

2. While there is no precedent supporting that the rule for newspaper and book publication may be applied to Internet posting, the generally recognized practice is that where the publication in question is addressed to the world in general, the claimant is not required to prove publication to individuals.

3. The English court has already evaluated damages in connection to another publication by this defendant on the same website.

Argument in favour of the Claimant

1. That the claimant only relies on the presumption of damage and that he has chosen not to sue the defendant in the US, Saudi Arabia or Switzerland, calling for a more cautious approach by the court.

2. That it is a misconception under English law to presume that because an item is available on the internet a substantial amount of readers have gained access to it.

3. It can be claimed that publication over the Internet has taken place if and only if the material is accessed and downloaded by a third party within the jurisdiction; and only at trial can the claimant assert that a jury would be perverse not to draw such inference.

4. That the issue of the extent of publication of the two items should be left to the jury to decide on the evidence.

Conclusion

A dispute existed between the two parties as to the difference between a presumption and an inference that the words of the items published on the internet were made available to a “substantial but unquantifiable” amount of readers in the UK jurisdiction. For many reasons, the court held that it cannot be immediately accepted under English law that a claimant may rely on a presumption of law that a substantial publication has taken place merely because an item has been published on the Internet.

However at trial, the jury after the exchange of witness statements may infer that there was substantial publication of the said items within the jurisdiction. It is also important to note that It can be claimed that publication over the Internet has taken place if and only if the material is accessed and downloaded by a third party within the jurisdiction. So if you think that you might be in an Internet dispute you need to make sure you get the evidence at the time of the offending behavior. The more evidence you can gather and store safely the stronger your case will be when you eventually end up in court.

BOLA TANGKAS