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.