England has long been the jurisdiction of choice for libel litigants from every corner of the globe as it offers tough protection to a person’s reputation. A reversed burden of proof, a chance of success greater than under American or European defamation laws and an open door to the High Court for foreign claimants just as long as they have a reputation to protect in England, however tenuous it may be. The mere publication, purchase or online access within the English jurisdiction is often enough to give rise to a right of action in the High Court. This is the unintended consequence of the Duke of Brunswick case from 1849 and the single publication rule which in essence means that every publication or sale gives rise to a fresh, actionable case for defamation.
This has been a big problem in England in recent times, certainly since the dawn of the internet which has provided claimants with links to England they wouldn’t have otherwise had. Wealthy forum shoppers have since flocked to England to obtain favourable verdicts they would not obtain in their home countries, establishing England as the correct place for their case to be heard with questionable access to online material or the odd few sales of the allegedly defamatory material within our jurisdiction. It is no wonder American journalists have dubbed London “a town called Sue”!
However, the Brunswick principle and issue of libel tourism have come into question in recent times following two recent High Court rulings. In both of the cases it was determined the forum shoppers had no reputation to protect in England and this was not the jurisdiction in which their case should be heard, no doubt much to the dismay of the claimants. Nonetheless, these cases show a turn in judicial attitude toward the use of our courts for foreign defamation disputes. But is it wise to turn business away in these hard times? Defamation law is a playground for the rich so why not let rich claimants spend their money using our lawyers and legal system, surely it’s good business?
To completely close the door to foreign defamation claimants would just be bad business but some curtailment of the single publication rule is required to stop an abuse of process and potentially perpetual limitation periods in these types of claims. Maybe the High Court had one eye on this aspect of libel law when refusing to hear the claimants’ cases…
