Internet Newsletter for Lawyers
January/February 2003, by Delia Venables

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.

Internet Defamation - In what Jurisdiction Can An Action Be Taken?
USA Rugby Football Union Limited -v- Ivan Calhoun
Case Report by Louise Gallagher

This case originated from an article posted to Mr. Calhoun’s website that was highly critical of the structures within the management of USA rugby. The website was a popular one and contained extensive coverage on both rugby results and rugby issues worldwide.

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;

1. There was no evidence that anyone had accessed the article in Ireland, and therefore no evidence of publication or the commission of a tort.

2. The burden on the plaintiff to show that the case was a proper one for service outside of Ireland was not discharged for the following reasons:
   • the plaintiff was a Delaware Corporation
   • the Plaintiff as the governing body for rugby in the US, appears to have no functions or responsibilities outside of the US
   • the Defendant was a US citizen and has no links, residential or professional with Ireland
   • the defendant had identified 13 potential witnesses who would have to travel from the US for any trial in Ireland
   • the defendant has procedural safeguards open to him in the US not available under Irish law.

3. Forum Non Conveniens - that Ireland is not the correct forum to hear the case, i.e. The Plaintiff was “Forum Shopping”

This application was opposed by USA Rugby on some of the following grounds:

1. Publication - There had been publication once it was shown that the article was put on the World Wide Web and could be accessed by any internet user. The basic principle governing publication should not be treated differently for Internet defamation.

2. Reputation – The Plaintiff had a reputation in Ireland, not exclusively due to the location of the IRB there but the Plaintiff conceded that it was only entitled to seek damages in relation to the harm to its reputation in Ireland.

3. Forum Non Conveniens - The Plaintiff argued:
   • That it has a reputation in Ireland and a substantial connection with Ireland
   • The tort of defamation had taken place in Ireland
   • There was no obvious jurisdiction in the US – if the appropriate jurisdiction is Delaware (the place of incorporation of the Plaintiff) or Colorado (the place of business of the Plaintiff) the Defendant would still have to travel from Texas
   • It might wish to call witnesses in relation to the damage to its reputation in Ireland who would be based in Ireland.

The Defendant’s challenge to jurisdiction failed in the initial instance with the Circuit Court (The Honourable Judge Murphy) holding that publication had taken place in the Ireland and consequently it was permissible for the party defamed to take action. It also held that USA Rugby had established sufficient reputation in Ireland to justify the proceedings being taken here. On the Forum Non Conveniens point the court held that Ireland was the appropriate jurisdiction because inter alia, Dublin is the seat of the IRB whose rulings and assistance were important to it. The Court also commented that no matter where the case was heard witnesses would have to travel long distances.

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.
Email lgallagher@efc.ie.

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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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