On 23 November 2015 Sir Michael Tugendhat, sitting as a High Court judge, handed down judgment in the case of Ahuja v Politika Novine I Magazini DOO ( EWHC 3380 (QB)) setting aside an order permitting service of defamation proceedings on defendants in Serbia,
The Judge gave guidance on the approach to be taken under section 9 of the Defamation Act 2013 on an application for service out indicating that the hurdle for a claimant suing a foreign defendant is a high one.
The Claimant – described by the judge as a member of a small elite class of businessmen with a global reputation and a particular focus in London – had brought proceedings against the Defendants for misuse of private information and libel in respect of articles published online. The First Defendant was the publisher of a daily newspaper in the Serbian language, circulated in Serbia and neighbouring countries in hard copy, and on the internet to anyone anywhere in the world who chose to access its website. The Second Defendant was the newspaper’s editor and the Third Defendant was a journalist living and working in Serbia who wrote the text of the words complained of.
On 31 March 2015 the Claimant obtained an order from Master Roberts to serve the proceedings out of the jurisdiction. The Defendants applied to set the order aside on a number of grounds, including on the basis that the Claimant had not established pursuant to section 9(2) of the Defamation Act that England and Wales was clearly the most appropriate place in which to bring an action in respect of the statement.
Sir Michael Tugendhat noted at  that section 9 of the 2013 Act made no reference to different categories of claimant, or to any specific link to England that a claimant might have or lack. It applied as much to a claimant who had never resided in England as to one who was resident or domiciled there. As the editors of Gatley correctly stated at para 24.29, the effect of section 9 is to oblige the court to consider all the jurisdictions where the defamatory statement had been published, in order to determine whether the domestic jurisdiction was clearly the most appropriate place in which to bring the action. As the Explanatory Notes to the Act made clear, if a statement was published 100,000 times in Australia and only 5,000 times in England that would be a good basis on which to conclude that the most appropriate jurisdiction in which to bring an action was Australia rather than England.
However, the extent of publication in different jurisdictions might have little bearing on where the claimant’s reputation lay and on where that reputation had been most seriously damaged, and the court should take into account such matters as the amount of damage to the claimant’s reputation in England and Wales compared with elsewhere, the extent to which publication was targeted at a readership in England and Wales compared with elsewhere, and whether there was reason to think that the claimant would not receive a fair hearing elsewhere. No doubt the court would also wish to consider such factors as the convenience of witnesses and the relative expense of suing in different jurisdictions ( and ).
The Judge went on to observe that the internet has had the effect that many ordinary people are defamed in publications accessible to readers all over the world. And some ordinary (and otherwise very private) people were the subject of defamations which, for one reason or another, were in fact read or viewed (on media such as YouTube) by thousands or even millions of people abroad. Whilst he would not exclude the possibility that there could be cases where, to require a claimant to put before the court evidence relating to all the jurisdictions where the defamatory statement has been published, might interfere with the claimant’s Article 6 right of access to the court, this was not that case ().
The claimant was a man of substantial means. He had access to legal and technical professional advice in many different parts of the world. It would not be an interference with his right of access to a court to be required to put before the master evidence of hits from countries other than the UK, together with detailed evidence of his own links with the other jurisdictions where he spent a significant part of his time, and in which he owned properties (). In the absence of any quantitative evidence of publication in countries other than England and Serbia the order would be set aside ().
It appears that the result of this decision is that the great majority of libel claimants seeking permission for service out to sue non-EU defendants will be required to produce statistics on publication. Such statistics will need to be obtained in relation to all jurisdictions with which the claimant has any connection, and presumably also all jurisdictions in which the extent of publication there arguably makes it an alternative appropriate place in which to bring the claim.
Additionally, because of section 9(3) of the Defamation Act, the Claimant will also need to adduce such statistics in relation to republications and any statement conveying the same, or substantially the same, imputation as the statement complained of.
Conducting this exercise is obviously going to increase the costs burden on such claimants, not least because it also seems that expert evidence on the issue will be required, and should be put before the Court on a formal basis in the form of a written report from the expert ().
In relation to hard copy circulation, country-by-country statistics are only likely to be publicly available for the jurisdiction of original publication. Other circulation figures may be difficult to obtain. The position in relation to online publication is even more difficult. Websites such as Alexa.com only provide traffic data in relation to websites as a whole, as opposed to for a particular page or URL. By contrast, the defendant will be in possession of, or able to ascertain, precise hit data. As this case demonstrates, the information obtained in relation to website traffic (1000 hits) may bear little resemblance to the actual number of hits to the page containing the material complained of .
In light of the above, it seems advisable to provide the web traffic data obtained via open sources to the intended defendant prior to making the application for permission to serve out and to invite it to respond indicating whether it takes issue with the extent of publication by reference to the number of precise hits to the material complained of, and if so, to provide figures.
Lorna Skinner is a barrister at Matrix Chambers, specialising in media and information law.