:: ACK Media Law - Aslan Charles Kousetta LLP - Susan Aslan, Sue Charles, Hakan Kousetta

The issue of ‘libel tourism’ has been a hot topic in the news recently. The Libel Reform Campaign has gained considerable momentum towards libel reform in this country. Indeed, Deputy Prime Minister Nick Clegg has committed to bringing forward legislation to reform England’s libel laws and end "libel tourism" by May 2012, after successful lobbying by the Libel Reform Campaign, with 55,000 people signing an online petition.

This article seeks to examine the phenomenon of ‘libel tourism’ and assess the recent case dismissed by the High Court in London regarding an attempt by Ukrainian billionaire businessman, Mr. Firtash, to sue a Ukrainian newspaper.

History of Libel Tourism

Libel tourism can be defined as the use of the English courts by overseas claimants to bring libel claims which have only a minimal link to this jurisdiction, concerning publications which have achieved far greater dissemination abroad. An important feature in English law is that each publication of a libellous statement constitutes a separate tort (the rule in Duke of Brunswick v Harmer [1849]). This may also be amended by the new Defamation Bill if approved. In essence, an action may still be brought in England whenever a claimant’s reputation has suffered harm in this jurisdiction. This includes whenever an internet article has been downloaded in this jurisdiction (Godfrey v Demon Internet Ltd [1999]). As communication can now be accessed instantly all over the world, this allows a claimant to choose a jurisdiction which offers the greatest advantage.

Indeed, the case of Gutnick v Dow Jones & Co Inc (2001) demonstrates such a claimant. In this case an Australian court took jurisdiction over an American magazine in a defamation action, because several hundred Australians subscribed to the online edition. Commentators have raised the possibility of limiting the accessibility of websites in order to minimize jurisdictional exposure, but this prospect seems an unfair restriction that in most cases would conflict with publishers’ business objective in pursuing electronic publishing on the web.

Arguably, the most controversial case of libel tourism can be seen in Bin Mahfouz & ors v Ehrenfeld & anor [2005]. Dr. Ehrenfeld published a book alleging that Khalid Bin Mahfouz, a Saudi Arabian businessman, and his family had channelled funds to Al-Qaeda and other terrorist’s organizations. Although only 23 copies of the book were sold in the UK, Mr. Mahfouz commenced libel proceedings in London against Dr. Ehrenfeld and her publisher. Dr. Ehrenfeld did not appear to defend the suit and the High Court of Justice ruled against her by default. This case caused uproar in the US, leading to bills being passed by state legislatures to block any enforcement of foreign judgments in libel cases unless the foreign law in question provides at least as much protection to US citizens as the US constitution.

Case Analysis

On the 24th of February this year the High Court dismissed Mr. Firtash’s case regarding an article published in the Kyiv Post. The article concerned his gas company, RosUkrErgo AG, which he says suggested corruption. Mr. Firtash wanted to bring the case to London even though the Kyiv Post was believed to have been downloaded by only 21 people in the UK. The case was dismissed by High Court Master John Leslie, who stated that the link to the English jurisdiction was “tenuous in the extreme” and concluded that there was “no substantial connection to this jurisdiction”. Master Leslie’s decision was welcomed by the Libel Reform Campaign, which has been saying for some time that wealthy claimants were using the High Court in London to stifle criticism of their behaviour overseas.

Arguably, this decision appears to cement the courts alliance with growing public opinion, that England’s libel laws are ‘archaic’ and in need of reform. However, the perception that London is the world capital for libel tourism is not entirely well-substantiated. Indeed, there may be important reasons why a claim should be brought to England even where, prima facie, no significant connection to the jurisdiction exists, as in Mr. Firtash’s case. Indeed, the business world is, to a large extent, at the epicentre of globalization and it follows that companies may have reputations which they are entitled to protect from damage in a number of jurisdictions.

Berezovsky v Michael & ors [2000] is a good illustration of this point. The case concerned a Forbes article published which suggested that Mr. Berezovsky was a criminal, at first instance it was dismissed as the connections to this jurisdiction were “tenuous” (as was held in Mr. Firtash’s case). However, on appeal the case was allowed to proceed within this jurisdiction, despite the fact it was estimated to have been seen by about 6,000 people in England and Wales. It was established that Mr. Berezovsky had substantial connections within England, through visits, business relationships and family ties. Further, the article would have influenced senior businesspeople in London with whom the claimant may have wished to have dealings with. The role of London as a European financial centre was highlighted in Berezovksy. In actual fact, many overseas businesspeople regularly have meetings with persons and companies based in London, they are perhaps more likely to have reputations in London than in other jurisdictions and, in turn, may be more likely to bring libel proceedings before the English courts to protect those reputations.

Mr. Firtash’s case illustrates that libel proceedings may be struck out as an abuse of process where the damage caused to the claimant’s reputation in this jurisdiction is insignificant (also seen in Jameel v Dow Jones & Co Inc [2005]). Nevertheless, as Berezovky illustrates it is important to assess each case on its facts, even where the link to this jurisdiction appears “tenuous”.

Aslan Charles Kousetta LLP is regulated by the Solicitors' Regulation Authority and is a limited liability partnership registered in England and Wales with the registered number OC337320. Registered office Castle House, 75 Wells Street London W1T 3QH.