Libel Tourism in the Internet Age

The Internet has solidified the meaning of ‘regardless of frontiers’  (in art19 UDHR), and online disputes almost always have some sort of extra-territorial/cross-border element. In defamation cases specifically, this complexity can be seized as an opportunity to bring one’s case before a court in a more favorable jurisdictions (libel tourism). Even if ties with the place of the Court are negligible in practice, many (often rich/powerful) actors ‘abuse’ the nature of the Internet (and the inadequacy of the law) to have more chance of winning their case. Europe seems to be the most preferred location to bring defamation cases (processing about 700 cases on average per year, per country).

It must be said however, that in strictly European cases, the ECJ has ruled (in an offline case) that in cases brought before a court in the jurisdiction where the material is distributed (not necessarily where publisher is ‘established’), claims must be limited to damages resulting from the amount of copies distributed within that specific forum. In other words, even though X sues in Canada because of its more favorable legal framework, damages will only cover ‘harm’ in Canada (however, with regard to injunctions, influence reaches beyond the national borders, as an order to block content by a Canadian judge a priori also removes access to that content in other countries).

The UK – undoubtedly exploited the most by libel tourists – has a similar national rule. UK Courts will not refer cases to other jurisdictions (even though the courts of another country are a clearly more appropriate forum) if claimants limit their claim to remedy for publication in England alone. Only when the claimant does not have a ‘substantial reputation/business interests’ in England, Courts will deny jurisdiction. Currently, English Courts consider anything on the Internet to ‘be published in the UK’ whenever it can be downloaded in England (no ‘targeting’ requirement).

On the Internet, however, the limitation in scope of remedies (to what is published in England alone) is impracticable. In the widely debated case Bin Mahfouz v Ehrenfeldlegal proceedings were brought before an English Court for a book exclusively marketed in the US (only 23 books were sold in the UK through the web and the publisher made the first chapter available online). Ehrenfeld did not defend, due to lack in resources and she lost the case (she was ordered to pay around £115,000 and an injunction was issued against publication in the UK and against putting the first chapter online). In other words, this English decision severely deters worldwide publication, as books cannot be sold through online booksellers such as Amazon an no excerpts can be put online. And if it doesn’t deter worldwide publication, it at least contributes a great deal to the balkanization of the Internet. And many situations do not even make it to court. Powerful and rich businessmen in Eastern Europe, reportedly, are very successful in taking down content and preventing publication with the mere threat of prosecution in the UK.

Finally, it must be said that (some) governments have seemed to realize the problem. In the US, for example, the SPEECH act was adopted in 2010, emphasizing the threats of libel tourism, prohibiting enforcement/recognition of foreign decisions (under certain conditions) and explicitly allowing US defendants to counter-sue.  At the other side of the pond, the UK is currently revising its defamation bill (specifically targeting libel tourism) and in France a court recently dismissed an important case, discouraging libel tourism.

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