The international risks of internet publishing are in the spotlight following reports that an Icelandic bank is suing a Danish newspaper for alleged libel in England. Kaupthing Bank, which operates in several northern European countries, is reported to be suing Ekstra Bladet in London over a series of articles translated into English and published on its website here.
It illustrates the scope for libel litigation beyond national borders and is another wake up call about the risk of libel litigation in foreign jurisdictions.
The Danish tabloid’s editor-in-chief was quoted as saying a libel claim might just as well be levelled against the newspaper in Los Angeles or Beijing, where English texts are also available online. ‘If that is the criteria, it’s dangerous to use English texts on a news site,’he said.
The trend of international libel litigation over online publications became apparent with the Gutnick v Dow Jones case in 2002, which entitled businessman Joseph Gutnick to sue in Australia over online content uploaded in America but accessed by readers in Australia.
English courts have taken a similar approach. For an internet libel case to be actionable here, a foreign claimant has to show the words were accessed by internet users in this country, and that he has a reputation within this jurisdiction.
London has been a popular destination for foreign claimants because English law is comparatively favourable to libel claimants. For example, damage to reputation is presumed and the evidential burden is on defendants to prove the truth of defamatory statements rather than on claimants to prove their falsity.
There is a growing list of foreign litigants who have brought libel claims here, including Russian businessman, Boris Berezovsky.
Welcome practical limits were imposed on the trend in the case of Dow Jones v Jameel in 2005, in which the Court of Appeal ruled that the publications that took place in England did not amount to a ‘real and substantial tort”. The publisher had uploaded defamatory material in America to Wall Street Journal Online, a subscriber service. Only five subscribers had actually accessed the content in the UK. The Court of Appeal considered that to be too few.
However, the English court has not been swamped by libel cases involving foreign litigants. There is little cause for panic but, as the list of such cases gets longer each year, it serves as a reminder of the potential risks.
What is interesting in the Kaupthing case is that an editor whose newspaper is aimed primarily at Danish speakers now feels it may be ‘dangerous’to translate and publish in English online. Actually, a claim could just as easily have been brought against Ekstra Bladet in London if news stories written in Danish were accessed by Danish speakers here, but perhaps English poses a greater risk because so many more potential readers speak English.
It would be a bad day for freedom of expression and information if the UK’s claimant-friendly libel laws led to any reduction of English-language content on the internet.
Nigel Hanson is a solicitor with Foot Anstey’s media team. www.foot-ansteys.co.uk