In the past, defamation cases were usually confined to a particular location, with the claimant, publisher and audience often based in the same town, city or country. As a result, there was rarely any dispute about where the claim should be heard. However, the widespread use of the internet changed all that. Now, the prevalence of social media and instant communications means that a post written in the US could be instantly seen and reposted by another user based in the UK.
It is common for a claimant based in the UK to realise that the original poster of a defamatory statement made against them lives on an entirely different continent. This creates uncertainty about the correct jurisdiction to hear these cross-border cases of defamation. Even when these cases are heard and received judgments, the issue of enforceability on overseas defendants remains complex..
The Issues of Jurisdiction
There are two gateways to establishing jurisdiction under the Defamation Act 2013.
Section 1 states that the serious harm threshold applies regardless of where the person making such defamatory statements is based. This means that if the claimant suffers serious reputational damage or loss in the UK because of defamatory statements made in another country, the UK may still be the best place to bring a defamation claim.
Section 9 states that if the defendant is not domiciled in the UK, an EU member state, or a Lugano Convention state, the English court must be satisfied that the jurisdiction of England and Wales is the “most appropriate place” to bring a claim. This section is a direct policy response to the previous situation where claimants would forum-shop, intentionally filing defamation claims in England and Wales because its laws are more favourable to claimants.
As a general rule of thumb, courts only accept jurisdiction if there is a substantial connection to the UK. For example, if a person living in the US is posting defamatory content about a person in the UK, and the majority of people who had interacted with the posts or publications live in the UK as well.
Enforcement
Even when judgment is passed in the claimant’s favour, enforcement remains difficult. In the case of defamation judgments made in the UK, before Brexit there was previously straightforward recognition of orders across EU member states under the Brussels Recast Regulation. However, this is no longer applicable, and enforcement is now dependent on the domestic rules of the country in question.
Cross-border defamation claims require strategic thinking and careful planning for a successful outcome is to be achieved. Where the defendant is based, where the main audience is situated or known to reside, and the enforceability of a claim are just a few considerations amongst many.
If you are facing defamation from overseas, please contact Nath Solicitors on 0203 983 8278 or get in touch with the firm online.