Libel tourism may become our newest cottage industry

Until recently London was hailed as the “libel capital of the common law world”. It was the jurisdiction of choice for defamation victims from the US and elsewhere seeking to sue in a legal forum that was considered plaintiff-friendly. By suing in the British courts the plaintiffs could avail of the UK’s notoriously strict defamation laws.

By contrast, American defamation victims have traditionally been reluctant to file suit in their homeland due to the difficulty in succeeding there. American defamation law has been developed in conformity with the First Amendment to the US Constitution, which protects free speech. Accordingly US law prioritises the exercise of free speech over a plaintiff’s reputational rights – particularly when dealing with public figures. Defamation plaintiffs therefore face an uphill battle to succeed before US courts. By way of response, wealthy American litigants in particular, but also others, have taken a now well-worn path to file suit in more plaintiff-friendly regimes such as the UK.

One example of a celebrity choosing to do so is US boxing promoter Don King who sued a New York lawyer who had labelled him a bigot and an anti-Semite on two US-based websites. Although the material was predominantly circulated in the US, King was allowed to sue in the English High Court, having demonstrated that he enjoyed a professional reputation in the UK and that the defamatory material had been circulated there. The trial judge noted that defamatory online publications have a "propensity to percolate through underground channels and contaminate hidden springs" and cautioned that online authors may be held to account in any jurisdiction where the plaintiff enjoys a reputation.

However, the opportunity for foreign defamation litigants to forum shop in the UK has been greatly restricted following the substantial reforms implemented through the UK Defamation Act 2013. The UK Act has significantly recalibrated the law such that it is now much more difficult for a plaintiff to succeed. These developments may hold far-reaching implications for Ireland. Relative to the UK, Ireland now appears to be the more plaintiff-friendly jurisdiction, and consequently it is likely that Irish courts will see an increased volume of such litigation.

The UK Act sets a threshold test whereby a plaintiff must demonstrate “serious harm” to their reputation in order to succeed. This change means that plaintiffs now face a more onerous evidential burden. For companies this requires evidence of serious financial loss, which is difficult to prove in practice. The equivalent provision in the Irish Defamation Act 2009 does not require serious harm and defines a defamatory statement as one that “tends to injure a person’s reputation in the eyes of reasonable members of society”. Significantly, the Irish Act further states that “defamation is actionable without proof of special damage”, meaning financial damage need not be proven. Based on these differences, the defamation plaintiff will face a lower hurdle in Ireland than in the UK, thus rendering Ireland a more attractive jurisdiction.

In drafting the 2013 Act, UK lawmakers took a deliberate policy decision to end the UK libel tourism industry. Section 9 of the Act limits the general jurisdiction of English courts to hear defamation cases to circumstances where the defendant is domiciled in the UK or an EU member state. No such statutory restriction exists in Irish law; Irish courts will have jurisdiction if the defamatory statement is published in Ireland and the plaintiff claims they have suffered injury to their reputation here. Several European and Irish decisions support this position.

A high-profile example that may mark the emergence of a trend of foreign defamation plaintiffs choosing to litigate in Ireland is the recent case involving Justin Timberlake and Jessica Biel. The Hollywood couple filed suit last month in the Irish High Court against Heat magazine, claiming they had been defamed in the magazine's European edition. Even though Ireland is not the magazine's biggest European market and not the location of its editorial offices, the litigants chose Ireland as the forum for their defamation action. Although the matter was subsequently settled out of court with an apology, it may be a harbinger of things to come. Following the UK reforms, it seems Dublin may replace London as the destination of choice for defamation plaintiffs and that libel tourism may become Ireland's newest cottage industry.

Hugh McCarthy is a graduate of UCC and Oxford University, where he conducted his Masters thesis on online intermediary liability