Mardas v New York Times; Mardas v International Herald Tribune
Reference:  EWHC 3135 (QB);  EMLR 8
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 17 Dec 2008
Defamation - Libel - Abuse of process - Internet publication - Forum non conveniens - Prior publication of defamatory allegations
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Desmond Browne QC - Leading Counsel (Claimant)
Victoria Jolliffe (Claimant)
Instructing Solicitors: Stockler Brunton for the Claimant; Finers Stephens Innocent for the Defendants
M, a Greek resident, brought libel actions in respect of an article which M stated alleged that he was a conman and trickster who had spread false rumours which may have resulted in the break up of the Beatles. The Ds applied to strike out the claims, arguing inter alia that M had no reputation here and that the allegations had been published many times before without complaint. The NYT admitted 177 hardcopy publications and 4 online hits. The IHT claimed there had only been 27 hits and having initially admitted hard copy publication subsequently claimed this was an error. M disputed these figures but the claims were struck out on abuse of process and case management grounds. M appealed.
Whether a substantial tort sufficient to justify proceedings had been committed within the jurisdiction
Allowing the appeals:
The issue was whether there had been a real and substantial tort within the jurisdiction – this was not a “numbers game, with the court fixing an arbitrary minimum”. The fact that the article was still available online gave rise to a possible inference that there had been a continuing, albeit modest, readership. It was inappropriate for a finding of fact on the scale of publication to be made on the basis of incomplete evidence. The fact that the allegations related to events occuring a long time ago, was not a ground in itself for strike out. Prior publication of the allegations was irrelevant as a matter of English law.
The judgment provides welcome guidance on the difficult issue of what amounts to “substantial publication” in the context of online defamation. Although Eady J made it clear that it is not a “numbers game”, he observed that “a few dozen is enough to found a cause of action here, although the damages would be likely to be modest”. Few claimants are in a position to challenge a defendant’s evidence on the extent of publication until full disclosure has taken place, and the judgment provides some protection from strike out by making it clear that, where the figures are disputed, the issue is one which should be resolved at trial.
Eady J also observed that where a defendant has put a serious allegation on the record by pleading it in its defence, it is relevant to the abuse argument to consider whether the claimant should have a chance to meet this allegation. This may be significant in instances where the defamatory material has been removed.