The Law of Defamation and the Internet

Update 12

Harrods Ltd v Dow Jones & Company Inc [2003] EWHC 1162 (QB) (22 May 2003)

English decision permitting an English claimant to maintain a defamation action against an American defendant

In the first significant decision since the Australian High Court ruled in Dow Jones & Company Inc v Gutnick (see update 8), Eady J of the English High Court of Justice, Queen’s Bench Division, has ruled that an English claimant may proceed with a defamation action in England against an American defendant.

The matter complained of appeared in the American edition of The Wall Street Journal and its online cousin, www.wsj.com. The evidence was that only 10 copies of the (American) print edition of The Wall Street Journal had been sent to subscribers in the United Kingdom. The Wall Street Journal has a national distribution within the United States of around 1.8 million copies. The evidence was that there had been only a very small number of ‘hits’ on the article complained of on the web.

The claimant, a private limited company which operates a department store in England, brought proceedings against the American publisher complaining, in essence, that an article which appeared on 5 April 2002 had likened its corporate practices to those of the disgraced American company, Enron. The claimant limited its claim to publication of the article in England and Wales.

The American publisher brought an application in which it sought, among other things, to have the proceeding stayed on forum non conveniens grounds.

Eady J held that the action could proceed. It was appropriate for the action to proceed in England because it involved a claim by an English company with a trading reputation in England which was limited to publications which had taken place within England. Eady J’s conclusion was not affected by the fact that the claim involved a small number of publications, that any damages ultimately awarded might be nominal or very modest, or that any judgment might not be enforceable in the United States. A copy of the decision is available by following this link.

Eady J’s decision is consistent with the decision of the Australian High Court in Dow Jones & Company Inc v Gutnick.

Before Eady J ruled, the defendant applied to the United States District Court for the Southern District of New York for intervention ‘with a view to avoiding enormous expense and uncertainty as to whether it might continue to publish the offending article.’ Judge Victor Marrero declined the application, ruling that the English proceedings offered ‘a more appropriate alternative remedy’ for the parties. He recognized that if the defendant failed in the English proceedings, it might nonetheless have a remedy in the United States, presumably because an American court might decline to enforce the English judgment based on the principles in Bachchan v India Abroad Publications Inc, 585 NY 2d 661 (NY County SC, 1992) and Telnikoff v Matusevitch, 702 A 2d 230 (Md CA, 1997): see The Law of Defamation and the Internet, chapter 22.

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