In separate papers filed in their names at the High Court this week, the Hollywood couple Justin Timberlake and Jessica Biel have issued defamation proceedings against the publishers of Heat. The actors claim they were defamed in an article published last month in the European edition of the magazine, which is owned by German-based Bauer Consumer Media.
Ireland may not be Heat’s biggest market. Nor is it home to the magazine’s editorial offices. That doesn’t necessarily matter. By lodging papers at the High Court in Dublin, the couple can sue for damage to their reputation that has been sustained in the State by virtue of the fact that Heat is sold here.
Media lawyer Paul Tweed of Johnson's law firm confirmed defamation proceedings had been lodged on behalf of the couple but said he could make no further comment. It's not clear if they also intend to sue in other jurisdictions, an option (albeit an expensive one) that is open to them, subject to local defamation laws.
According to barrister Ronan Lupton, a specialist in defamation, where publication occurs in Ireland and other jurisdictions, the key factors in determining the most appropriate country in which to sue are the location in which the alleged wrongful act occurred, the strength of the claimant's connection to the jurisdiction and whether or not the claimant will secure any advantage from suing in one particular place.
Lupton points out that in the Irish case of Ewins v Carlton Television in 1997, Mr Justice Robert Barr applied an English case called Shevill v Press Alliance, where an English resident brought defamation action in the English courts over an article that had been published in France and which concerned her activities in France. In that case, 230 copies of the newspaper had been distributed in England. The English court said the woman was entitled to sue in either the country where the publication was based or in each EU country where the publication appeared.
The size of Heat’s circulation in Ireland could conceivably become an issue. In another English case, Jameel v Dow Jones, the English Court of Appeal in 2005 said a defamation action could not be sustained because it related to a statement on an American website that had only been accessed in the UK by two individuals.
Ireland and the UK are both common law systems, and defamation law in both jurisdictions is broadly similar. As media and entertainment lawyer Andrea Martin points out, suing for defamation is more financially advantageous to a successful claimant here and in England than it is under continental law. (Martin stressed she was not aware whether or not Timberlake and Biel were also suing Heat magazine in the UK or elsewhere).
It’s also considerably more advantageous than in the United States, where there is broad scope for commentary that might otherwise be regarded as defamatory where that commentary is about public figures.
“As between English and Irish law, since the introduction of the Defamation Act 2013 in the UK, the bar has been set quite high for defamation claimants,” Martin says. “Under section 1 of the 2013 act, a defamation action can only succeed where ‘serious harm’ has been caused to the claimant’s reputation.”
Under Irish law, defamation was defined by legislation for the first time by the 2009 Defamation Act. That defines a defamatory statement as one that “tends to injure a person’s reputation in the eyes of reasonable members of society.”
“This arguably sets the bar lower for a defamation plaintiff under Irish law than under UK law when it comes to establishing that defamation has occurred,” Martin said.