Internet Newsletter for Lawyers
Jurisdiction on the Internet - 2
Note from Delia: This Irish High Court decision was given on 19th July 2002 and Louise wrote this report for the newsletter in November. Thus it predates the December Australian case. I asked Louise for a current comment which she has given at the end of this report.
Following representations made to him by certain officers of USA Rugby, Mr. Calhoun withdrew the article from his website within a number of days. It was, however, feared that substantial damage would have been done to the organisation by anybody who read the article. In particular it was concerned about the potentially adverse reaction of both its current and future sponsors.
The headquarters of the International Rugby Board (IRB) is located in Dublin, Ireland. USA Rugby was dependent on the IRB for a significant amount of its funding. It had obvious concerns that officers of the IRB would have accessed Mr. Calhoun’s website, read the article and questioned the organisation and management of USA Rugby. For this reason defamation proceedings were initiated against Mr. Calhoun in Ireland seeking appropriate damages.
Mr. Calhoun brought an application challenging the jurisdiction of the Irish courts to hear the matter, alleging;
This application was opposed by USA Rugby on some of the following grounds:
That decision was reversed on appeal to the High Court (The Honourable Mr. Justice White) who stated in an ex tempore judgment that it was unsafe to assume that access amounted to publication. He did not feel that the location of the IRB’s headquarters in Ireland, or that USA Rugby had a reputation in Ireland, were sufficient reasons to allow service outside the jurisdiction. Another factor he considered relevant was the issue of costs. The Defendant had averred that up to fourteen witnesses would have to travel to Ireland for the trial.
There is no other precedent in this Jurisdiction which deals with internet defamation and jurisdictional issues. The High Court in dealing with this case held largely on the Forums Non Conveniens point, taking into account costs and where the parties and witnesses were based. On the issue of publication it can be inferred from this case that establishing publication would necessitate proof that the article was accessed and considered.
Louise Gallagher is a Solicitor in the Litigation and Corporate Recovery Departments of
Eugene F. Collins, Dublin.
The above case report was written in November, before the Australian case.
In response to a request for a comment as to how the two cases fit together, Louise Gallagher says:
As regards your request, having considered the Australian decision and that of the Irish Courts I believe that they are very much in line with each other. The Australian Decision states that the material which is alleged to be defamatory has to be available in a comprehensible form. Comprehensible form means that it has been downloaded to the computer of a person who has used a web browser to pull the material from the web server.
The Irish case stated that it was unsafe to assume that access amounted to publication and I think it can be inferred from that decision that in future cases the material complained of will have to be accessed and considered before there can be publication.
The Australian Decision very much compliments and strengthens the approach taken by Irish Courts.
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