Mahfouz and another v Brisard and another
Reference:  All ER (D) 174 (Sep)
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 30 Sep 2005
Summary: Defamation - Libel - Publication - Preliminary Issue - Whether the First Defendant was responsible in law for the publication of a translation of a Book written by him for sale in the United States
Adam Speker KC (Defendant)
Instructing Solicitors: Kendall Freeman for the Claimants; Reynolds Porter Chamberlain for the First Defendant
The Claimants alleged that they had been defamed in a book written by the Defendants which alleged that they had supported terrorism. The First Defendant’s only defence was to deny responsibility in law for publication to a reader in England and Wales since, although he entered into a contract in October 2002 authorising his French publisher to put into circulation the French edition and any translation anywhere in the world, there was a second contract in March 2003 between the French publisher and a US publisher excluding publication in the UK. The Claimants applied for determination of this preliminary issue of law or to identify the facts to be determined by a jury.
(1) Whether the matter should be determined by the judge
(2) If so, the true legal interpretation of the contracts
(3) Alternatively, if the First Defendant did not authorise it, a ruling that he was nevertheless responsible because a reasonable person in his position should have appreciated that there was a significant risk that publication would take place in England and Wales.
(1) In a libel action the proper construction of a deed or other document having legal effect (other than the words complained of) is a matter for the judge to decide: Williams v Reason  1 WLR 96.
(2) On a true construction of the two contracts the first meant that the First Defendant authorised his French publisher to put the translation into circulation anywhere in the world and whilst it dealt with intellectual property rights the implication was that it authorised publication of the text in the libel sense as well (Watts v Times Newspapers  QB 650 applied). The second excluding the UK from territories in respect of which the publisher granted intellectual property rights cannot be construed as a withholding by the First Defendant of authorisation to a resale of the book in circumstances which might result in the book being read by a reader in the UK.
(3) The alternative case would raise issues of fact and no findings could be made at this stage.
The Court made clear that whether or not publication did in fact take place in England and Wales was a matter for a future hearing and that the issue was the determination of the legal contracts. The ruling does demonstrate how easy it is to be held liable as a publisher in the libel sense in this jurisdiction and it how difficult it is and will become for foreign publishers to limit being held liable here now that much book selling takes place on the internet and across borders. The example posed by the Judge of the letter marked private and confidential would not seem to assist a book publisher. The only safe course would seem to be not to publish at all.