Raffaele Mincione v Gedi Gruppo Editoriale S.p.A

Reference: [2022] EWCA Civ 557

Court: Court of Appeal (Civil Division)

Judge: Popplewell, Warby and William Davis LJJ

Date of judgment: 29 Apr 2022

Summary: Defamation – Libel – Internet injunction – Jurisdiction

Download: Download this judgment

Appearances: Aidan Eardley QC (Defendant) 

Instructing Solicitors: Archerfield Partners LLP

Facts

The Claimant was an Italian national (with acquired British citizenship) resident in Switzerland.  He did not assert his “centre of interests” to be England and Wales.  The Defendant was the Italian publisher of a daily newspaper (La Repubblica) and a weekly magazine (L’Espresso), both published in hard copy and online.  Access to some of  the Defendant’s online articles was limited to subscribers.  La Repubblica and L’Espresso  had Twitter accounts through which they tweeted links to their online articles.  The Defendant also operated the Rep TV website and a YouTube channel where it posted videos.

In September and October 2020 La Repubblica and L’Espresso reported a story concerning the alleged misuse of Vatican funds invested in London real estate.  The Claimant was identified as one of the individuals involved. He brought a defamation claim based on the publication online of four La Repubblica and L’Espresso articles and two videos.

The claim sought damages for harm to the Claimant’s reputation caused by publication in England and Wales.  In addition, the Claimant also sought: (i) an injunction restraining the Defendant from further publication in this jurisdiction of the statements complained of or other similar words defamatory of the Claimant; and (ii) an order that the Defendant publish a summary of the judgment in these proceedings pursuant to section 12 of the Defamation Act 2013 (the “2013 Act”).  The Defendant made an application under CPR Part 11 seeking declarations that the Court had no jurisdiction to grant an injunction prohibiting publication of material on the internet and no jurisdiction to make a section 12 order insofar as that order might require the Defendant to publish a summary of the Court’s judgment online.  The Claimant resisted, contending that the Court had jurisdiction to make such injunctions and orders so long as they were expressed to be limited to England and Wales.

Since the proceedings were started before the end of the Brexit implementation period, the jurisdictional issue was governed by the Recast Brussels Regulation EU 1215/2012 (‘the RBR’).

At first instance, Tipples J  granted the declarations sought, and struck out the claim for the internet injunction and the section 12 order insofar as it might require publication online. The Claimant appealed.

Issue

When a libel claim is brought on the “mosaic” approach under RBR Article 7(2) – i.e. where there is a multiplicity of libel actions in different jurisdictions – does the Court have jurisdiction to grant an injunction prohibiting further internet publication of the statement complained of in England and Wales and/or jurisdiction to make a section 12 order requiring online publication in England and Wales of a summary of the judgment ?

Held

The appeal was dismissed, save for one qualification in relation to the section 12 order (as explained below).  Although the Court of Appeal largely agreed with the conclusions reached by Tipples J at first instance, it did not agree with her legal analysis.

The Court of Appeal held that, when a court is seised on the mosaic basis,  it may grant an injunction prohibiting online publication but only if such an injunction is limited to England and Wales both in its terms and its effect.  In this case, the Court considered that, on the undisputed evidence, an internet injunction expressed to be limited to England and Wales would inevitably affect the Defendant’s ability to publish material online to readers in Scotland and Northern Ireland and (so far as publication via Twitter was concerned) in other jurisdictions outside England and Wales as well.  Accordingly, there was no jurisdiction to grant such an injunction.

An important issue in dispute before the Court of Appeal was the correct interpretation of the CJEU’s judgment in Bolagsupplysningen OŰ v Svensk Handel AB (C-194/16).  Tipples J had concluded that the Bolagsupplysningen case precluded a court seised on the mosaic basis from granting an internet injunction in any circumstances.  The Court of Appeal disagreed, interpreting that decision more narrowly.  It held that the ratio of Bolagsupplysningen is that a mosaic court cannot grant an order for the rectification or deletion of source material because to do so would be to impose single and indivisible remedies with ubiquitous effects. The Bolagsupplysningen case does not address the extent to which a mosaic court is able to grant online injunctive relief limited to the court’s own territory, in effect tightly defined geo-blocking.

The Court endorsed Popplewell LJ’s reasoning in his dissenting judgment in Wright v Granath. In that case, Popplewell LJ derived two propositions from Bolagsupplysningen: (i) single and indivisible non-pecuniary relief may only be sought in a jurisdiction where the global claim may be brought; it cannot be brought before a mosaic court; and (ii) this principle would preclude a claim for an injunction restraining the repetition of the libel, unless the injunction is confined to repetition in England and Wales.

As to the section 12 Order, the Court of Appeal took the view that the answer was not necessarily dictated by its decision on the internet injunction. A section 12 order is a “discursive” remedy the purpose of which is to undo or mitigate reputational harm caused by past publication.  In contrast, an internet injunction is a prospective remedy, aimed at the prevention of future harm. Accordingly, depending on the facts, these differences could lead a mosaic court to different answers when it comes to jurisdiction over the two kinds of relief.

That being so, two issues arose: (i) would it be right to regard a section 12 order requiring publication online of an English judgment as an order having impermissible extra-territorial effect? (ii) If so, could the court nevertheless require the Defendant to target publication of the judgment at those within England and Wales who may have read the offending publication, in a way that would avoid any potential extraterritorial effect?

The Court did not express a view on the first issue. As to the second issue, the Defendant knew the identities and contact details of its subscribers within England and Wales and there was no apparent reason why the Defendant could not use its standard method of delivering content to subscribers to convey an additional piece of information. Accordingly, it could not be said that an order requiring such communication would necessarily have extraterritorial consequences and the court had jurisdiction to make such an order at the conclusion of the trial. The Court qualified Tipples J’s Order to this limited extent.

Comment

The court’s jurisdiction over libel claims brought since the end of the Brexit implementation period is governed by s.9 of the 2013 Act and not the RBR.  It is unlikely therefore that there are many claims remaining that could be affected by this judgment.  It is, nevertheless, a useful clarification of the true ratio in the Bolagsupplysningen case.