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Libel Update
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Libel - Abuse of Process - Jameel Vs Dow Jones Inc
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18 February 2005
Eversheds Libel Update
First, the case of Jameel v Dow Jones Inc brings an important restriction on the right of Claimants to sue in this jurisdiction (which is amongst the most Claimant-friendly regimes in the world for libel). Previously, as long as a Claimant could show publication to one person in this jurisdiction, he could bring an action for libel here. This created the difficult scenario for online publishers (e.g. any website owner) of facing claims in England brought by foreign individuals or companies in respect of publications which in reality had little to do with England. The Jameel case was a good example, a Saudi individual suing a US publisher in this jurisdiction on the basis that the website was accessible from England and that he (the Claimant) had some level of reputation here. It emerged in evidence that, in fact, only five people had accessed the website from England, including the Claimant himself and two of his legal advisors. The Court of Appeal indicated that it will no longer allow this sort of claim. It held that the costs of the case would have been completely disproportionate to the benefit which the Claimant could have acheived and the action was therefore struck out as an abuse of process. The decision is of some comfort to website owners, but is unlikely to impact claims where the Claimant does have some genuine connection to this jurisdiction and can show that the defamatory words have been read by more than a minimal number of people. Earlier this week, the European Court of Human Rights gave judgment in the McLibel case. This is the extraordinary dispute which led to the longest trial in UK legal history when 313 days were spent analysing numerous allegations about McDonalds made by two animal rights protesters. Despite the press coverage generated by the ECHR decision, we do not think that the case is likely to have a substantial impact on English libel law. The two key findings in favour of the 'McLibel Two' were that (1) the denial of legal aid to defend the case brought against them by McDonalds breached their right to a fair trial, and (2) the level of damages awarded against them was a disproportionate restriction on their right to freedom of expression. The decision in relation to legal aid was founded on the unfairness of two impecunious individuals having to conduct such a lengthy and complex trial with little or no legal support, compared to the resources and advice available to a global corporation. Although the UK government will have to review the position, the nature of the case was unique and there is no likelihood of legal aid becoming widely available for libel actions (and thus little danger of publishers facing a greater incidence of claims). The decision on damages was also very specific to the facts of the case, the ECHR stating that awards totalling 76,000 pounds were disproportionate to the injury suffered by McDonalds, particularly in light of the Defendants' limited means. Whilst the suggestion that Courts should take account of a Defendant's means in calculating damages is novel, and may be difficult for the UK government to deal with, it seems unlikely that the decision will have any significant impact on damages awards against corporate publishers. Phil Sherrell -------------------------------------------------- |
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