Brodies TechBlog

In August John McGonagle wrote about the case of an Edinburgh based property developer who won a defamation case in the English High Court against the publishers of Dubai newspaper “Gulf News”.  See “Why not Dubai?” for a reminder.

The (allegedly) defamed are keen to try to sue in the UK it would seem and the UK courts are equally cooperative in finding that they have jurisdiction. However, if changes contemplated by the UK Government become law, the UK could start to look like a less attractive forum for defamation proceedings.

Last month the Government issued a consultation paper on defamation and the internet, seeking views on how the law might be changed, including by replacing the UK’s “multiple publication rule” with a “single publication rule”, as in the US.

In the UK at present, each publication of defamatory material gives rise to a separate cause of action. The limitation period therefore recommences with each publication. Applied to content disseminated by the internet, this means that a new cause of action, with its own limitation period (of one year under English law and three years under Scots law), arises on each occasion that someone accesses that content online.

The US, in contrast, has abandoned the multiple publication rule in favour of a single publication model. This means a single cause of action triggered by initial publication of the defamatory content. In other words then the window of liability for any defamation constituted by the dissemination of that content is much more restricted.

Clearly, the UK’s continued application of the multiple publication rule does give rise to some interesting issues as to the balance which the law of defamation should strike between freedom of expression and the rights of the individual. After all, the rule was established in 1849 when the Duke of Brunswick successfully sued the publisher of the Weekly Dispatch for defamation (more specifically “fasely, wickedly and maliciously printing and publishing” allegations of “acts of oppression and outrage” on the part of the Duke), founding his action on the purchase of a back copy of an edition of the newspaper originally published in 1830. The world of publishing has changed a lot since then.

The Government’s consultation exercise runs until 16 December. The consultation paper is worthwhile reading for anyone interested in the policy considerations which influence the law of defamation, and obviously of particular practical significance to publishers of online archives.

Martin English (trainee solicitor) and Eleanor Peterkin

Last week newspapers reported that an Edinburgh-based property developer had won a defamation case in the English High Court against the publishers of a Dubai-based newspaper.

Mark Emlick runs both the Edinburgh-based company Dunedin Independent and also a Dubai property enterprise entitled the Strategic Property Investment Group. In April last year Gulf News published a story on its website www.gulfnews.com falsely accusing Mr Emlick of misleading Dubai investors.

Mr Emlick was awarded £25,000 in compensation for the damage to his business reputation.

This is how the story was reported. However I was surprised that there was no indication that the publishers had at least tried to advance any of the obvious defences that are available in this sort of case. In fact, they didn’t even turn up in Court. Why was this?

It turns out that the publishers didn’t bother with any of this because they entirely rejected the jurisdiction of the High Court. They maintained that a defamation case against a Dubai newspaper brought by a Dubai property developer regarding business events in Dubai should only be heard in a Court in – you’ve guessed it – Dubai.

In contrast presumably Mr Emlick brought the proceedings in England and not Dubai, because English law is very helpful to plaintiffs in defamation proceedings.

Consistent with previous decisions including the colourful case of boxing promoter Don King, the English court decided it did have jurisdition because the on-line edition of the Gulf News was accesible from England, and because Mr Emlick had a reputation in England.

So the on-line publication of an article allows the pro plaintiff English courts to decide defamation issues that are fundamentally unconnected with the UK, provided the plaintiff has a reputation in the UK. 

All that said, if the publishers couldn’t be bothered sending a lawyer to the High Court I doubt they are going to bother sending £25,000.   Also it suggests that they may be prepared to stand behind their accusations. Certainly Mr Emlick has not managed to force the publishers to retract the accusations in the country in which they were made.

I suspect Mr Emlick may have to answer the question “Why not Dubai?” before this matter is resolved to his satisfaction.

John