Full case report
Farid El Diwany v Ministry of Justice
Reference  EWHC 2077 (QB)
Judge Sharp J
Date of Judgment 29 Jul 2011
immunity of states – defamation – Lugano convention 2007 – strike out – abuse of process – internet publication
C brought two libel actions. The first was a libel claim in relation to an article published in 2006 in Norwegian on a provincial Norwegian news website but which could be read in variable, imperfect English via Google’s search engine translate service when accessed in this jurisdiction. The defendants were the journalist and website owner (who took no part in proceedings) and the police woman who gave the statements in an interview with the journalist which formed the basis of the claim. C complained the article meant that he harassed Norwegian women and was mentally unwell. The second claim was brought against the Norwegian Ministry of Justice, the employer of the police woman, on the basis of vicarious liability and permission was given by the Master to serve out of the jurisdiction ‘in accordance with the State Immunity Act 1978.’ Judgment in default was entered in the claim against the police woman and journalist. She applied to set aside judgment and strike out the claim on the basis that it was unsustainable on several grounds and an example of relitigation abuse of process. The Ministry applied to strike out the claim against it on the grounds that state immunity applied and the claim against its employee failed.
Whether the claim against the journalist and police woman should be struck out as disclosing no real prospect of succeess and/or as an abuse of process, and whether service of the claim against the Ministry of Justice should be set aside because the principle of state immunity applied and/or because the claim against the police employee failed.
Striking out both claims against all defendants,
1. The claim against the police woman for statements in an interview in the course of her duties was a case of slander occurring solely within Norway for which s. 3(5) of the Lugarno Convention 2007 which governed jurisdiction in civil claims between the EU and Norway did not grant jurisdiction to the English court and which, in any event, was barred by limitation and in the limb relating to mental unwellness, non-actionable in slander.
2. Even if the police woman had somehow caused publication of the article, there was insufficient evidence of publication of the article (a meagre number of search engine hits of the Norwegian version of the article on the various search engines).
3. Publication/republication of the article was unforeseeable: the article was buried deep within the website archive and the only means of a translation into English was provided by a third party, Google—something neither defendant was responsible for.
4. The first claim was an abuse of process. Adopting a broad merits-based approach, publication was stale and highly technical, the underlying factual events dated back to the 1990s and C himself published the article on his own website, albeit without his name. The underlying issues had been litigated In Norway and been subject to two appeals, and applications for investigations of the police woman by the Nowegian police authorities. The English court was entitled to have regard to two relevant convictions of C for harassment in Norway. In spite of C’s explanations, evidence of C’s circulation of highly personal allegations against a Norwegian woman and harassing voicemails to the police woman were before the court. The claim was not a proper pursuit of vindication of reputation.
5. As a result of striking out the claim against the police woman, the claim against her employer failed. C had not satisfied the Court that the claim was not one to which the immunity of states applied, the Ministry being a department of the Norwegian state.
A further example of the difficulties in bringing a UK libel claim in relation to small-scale, niche or self-published internet material, in this case hosted abroad and in a different language. English law has now established that claims in relation to such material must demonstrate at the outset that the particular page of the website sued on has been accessed sufficiently widely rather than just the website itself. This case suggests that prominence within search engine results may not be determinative of whether publication may be inferred. This leaves claimants needing to identify a sufficient number of readers or republications of the material as true publication data is in the hands of the publisher, if it exists at all. This decision would appear to close the door on Google translate becoming an easy route into the jurisdiction for forum-shopping.
Charles Russell LLP for Torill Sorte and Ministry of Justice & the police, Norway
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