London has recently been reaffirmed as the libel capital of the world following the case of Russian businessman and former senator, Vladimir Sloutsker, who has been awarded £110,000 in defamation damages by the High Court for allegations published in the Russian media. However for cases arising post the introduction of the Defamation Act 2013, establishing English jurisdiction may prove somewhat trickier.
In this latest case, crucially predating the Defamation Act 2013, Mr. Sloutsker sued campaigning Russian journalist Olga Romanova over allegations that he put out a contract for the murder of her husband Alexei Kozlov and was also instrumental in Kozlov’s criminal prosecution and imprisonment.
Ms Romanov’s claims were made on the website of Moscow-based radio station Echo Moscow, in two articles on the website of Russian newspaper gazeta.ru and on a programme on Radio Liberty, which broadcasts to Central and Eastern Europe.
This ruling comes fifteen years after the House of Lords stunned publishers by letting the late Russian oligarch Boris Berezovsky sue American magazine Forbes in the English courts over an article concerned with matters that took place exclusively in Russia but which was published in England via a small distribution of Forbes magazine in print and on the internet.
Mr. Justice Warby ruled in February this year that the facts of Mr. Sloukster’s case were “not as striking as those of Berezovsky” and his “links not as strong” but said he has “a persuasive case that he had and has a substantial and widespread reputation in this jurisdiction.”
In English law there is no ‘single publication rule’ and each communication constitutes a separate libel so that each visit to a website by a person in England constitutes a publication in the same way that a single copy of a magazine carrying the offending article would. In both the Berezovsky and Sloutsker cases the courts ruled that the distribution of the offending publications in England was significant even though small compared to worldwide distribution.
There had been some cause for optimism among media defence lawyers that the chilling effect on free speech of the UK’s libel law was losing its bite after the dismissal in 2013 of two defamation cases brought by foreign nationals on the basis that they had no real reputation in England to defend.
The Defamation Act has fuelled that optimism by providing, under Section 9, that that non-European claimants would have to show England was the most appropriate jurisdiction to bring an action here. However, the Sloutsker case was decided on law existing before the Act came into force at the beginning of 2014.
“If section 9 were in play, I think it would have been harder, although the terms of Mark Warby’s judgment perhaps leave the door somewhat more ajar than we might have expected,” says Dan Tench, media partner at Olswang.
So until Section 9 gets properly tested in our courts, it seems that foreign claimants with sufficiently deep pockets can launch libel actions in London with every chance of success and despite having questionable links with England.
“The most significant point [in the Sloutsker case] is that libel tourism wasn’t argued and the defendant (for the most part) didn’t turn up,” says Mark Stephens, specialist media lawyer at Howard Kennedy.
“It is a worryingly high award as it’s over 10x the defendant’s annual salary and way beyond anything needed for vindication,” he adds.
3 August 2015