27 December 2005

Jurisdictional Nonsense

One of the hidden problems in American publishing is its abject refusal to admit that publishing is now—without any effort by the marketing dorks—an inherently international matter. Too often, publishers assume that the only law (and courts) that matter to them are those in the State of New York. An article in today's Guardian shows one reason that most ostriches have better situational awareness than that attitude represents.

In 1848 the Duke of Brunswick, then living in Paris, sent his manservant off to the British Museum to get a copy of the Weekly Dispatch published 17 years previously which he believed had defamed him. He also got a copy from the Dispatch's London publisher. Despite a limitation rule of six years in those days, the court of Queen's Bench decided that these receipts constituted a new publication of a libel and a cause for action. He was awarded £500, a huge sum at the time.

The duke's rule, says the media lawyer Mark Stephens, "is bringing the English libel courts into disrepute, with the rich jetting in from all over the world to launder their reputations." Dan Tench, a specialist media lawyer at Olswangs, thinks it ought to go. "The duke's case is one of the hoariest of old precedents. It also is unconscionable that it is still considered good law today." Earlier this year the court of appeal said that if a latter-day duke tried to sue in similar circumstances he would be given short shrift. "We would today condemn the entire exercise as an abuse of process," Lord Phillips, master of the rolls, said.

Three years ago in the high court of Australia, one judge remarked: "The idea that this court should solve the present problem by reference to judicial remarks made in England in a case, decided more than 150 years ago, involving the conduct of the manservant of a duke, dispatched to procure a back issue of a newspaper of minuscule circulation, is not immediately appealing to me." In a report on defamation and the internet produced in December 2002, the Law Commission suggested a review that would consider the way the US approaches the problem. Under America's single publication rule there is only one act of publication, when an article first appears, and only one cause of global action, in the place of publication. With internet users now nudging a billion, the threat of unpredictable litigation has grown. In England the cases have principally involved foreign businessmen, often Russians accused of wrongdoing, and Saudis accused of financing terrorism post 9/11. None of these accusations has stuck.

The Russian tycoon Boris Berezovsky's case against the US magazine Forbes (UK circulation 2,000) took six years to resolve in his favour in 2003, going to the House of Lords. Forbes' lawyers argued that the case should have been tried in the US or Russia. But the Lords prayed in aid the duke's rule, adding that Mr Berezovsky could sue in England because he had links and a reputation to protect here. In a forthright minority opinion about libel tourists, Lord Hoffman laid out what he called "the common sense of the matter." Mr Berezovsky, he said, "wants the verdict of an English court that he has been acquitted of the allegations in the article, for use wherever in the world his business may take him. He does not want to sue in the United States because he considers it too likely that he will lose. He does not want to sue in Russia for the unusual reason that other people might think it was too likely that he would win."

David Pallister, "Libel Legacy of Outsted Aristocrat Threatens Internet" (27 Dec 2005) (paragraphing and typography corrected).

Duke of Brunswick & Luneberg v. Harmer, 14 QB 185 (1849), represents the worst kind of forum shopping. Not only did Duke Karl (who said of himself that he would be in the loony bin but for his money) choose a jurisdiction with highly upper-class-plaintiff-favorable judges and rules of procedure, but he chose a jurisdiction in which the then-prevailing law indicated that some perfectly truthful statements—such as the ones at issue—could nonetheless be found libellous. In this country, we're so used to "the truth is a complete defense to accusations of libel" that we never consider that in other nations this may not be so, nor that those "other nations" if they hypothetically exist are other than banana republics (and I don't mean the latest in faux-jungle fashion, either). Berezovsky v. Michaels and Others must be a serious consideration whenever a US-based publisher's works concern a foreign figure… however truthful, well-documented, well-written, and well-balanced. It shouldn't; but then, Mr Berezovsky's peers decided that appeal—not the magazines (all puns intended).