Chapter 7 Answer guidance to end of chapter questions

  1. In their commentary on the Defamation Bill, the Ministry of Justice noted: ‘We do not believe that the current position where each communication of defamatory matter is a separate publication giving rise to a separate cause of action is suitable for the modern internet age.’

    Prepare a short response, outlining whether or not you agree with the Ministry and why (or why not).

To answer this question I would expect the student to discuss in order:

  1. The operation of the multiple publication rule. Why it developed and its role in modern defamation law.
  2. The problems caused by the interface of the multiple publication rule and internet publication – focusing on Berezovsky v Forbes, Inc. (No.1), Dow Jones & Co. Inc. v Gutnick and Loutchansky v Times Newspapers Ltd.
  3. A recognition of the differentiation of the multiple publication rule for jurisdictional purposes and for limitation purposes – i.e. Berezovsky and Loutchansky.
  4. The Jameel v Dow Jones test for a substantial connection in jurisdictional cases. As applied in Al Amoudi v Brisard and anor and Brady v Norman.
  5. The Defamation Bill (now Act good students should recognise this) doesn’t amend the jurisdiction cases only the Loutchansky principle (limitation) – this must be recognised. Instead it gives guidelines in jurisdiction cases – cl.9(2).
  6. An examination of whether the Act brings about any substantive differences given the decision in Al Amoudi v Brisard and given that s.32A of the Limitation Act still gives discretionary power to judges to extend the limitation period.
  1. Twitter is a conversation not a publication. You shouldn’t be suing people for saying: ‘Why is [name] trending? *innocent face*.’ you should be engaging them in conversation to point out what they have said is wrong and why. Only then will your reputation be properly protected while speech is protected and free.

    Discuss critically.

To answer this question I would expect the student to discuss in order:

  1. Firstly to identify the facts mention the Sally Bercow case mentioned in the text but subsequently decided by the High Court (evidence of further reading) - McAlpine v Bercow [2013] EWHC 1342 (QB).
  2. The first question is, is such a tweet defamatory? Has an individual been identified (yes) and is the statement defamatory (maybe –High Court said yes).
  3. There is a question here of Art.10 of the ECHR – “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” Also students should examine the philosophical foundations for free expression discussed in Ch.7. 
  4. Is this a marketplace of speech issue? This is what the first amendment scholars would say. The UK has strict defamation laws – examine are they out of date now everyone has access to a broadcast media (SNP).
  5. Analyse which risks are greater – harm to the reputation of the individual vs. chilling of expression.  What would happen to Twitter if we let anyone say anything – refer back to the trolling and harm cases of Ch.6.
  1. Ada Lovelace is a regular and successful online gambler due to her mental arithmetic skills. Ada frequently uses the online gambling site Bettr which combines online casino games with a social media function. Ada does not use Bettr’s social media or chat functionality, preferring to keep to herself while gambling.

    Ada is a resident of Seattle, Washington, but has a brother, Charles, who is an entrepreneur based in the UK. Following a very profitable round of blackjack, which attracted the attention of thousands of Bettr users, Ada’s Bettr profile went viral and she is now something of a global online gambling star. After this event, another Bettr user operating under the pseudonym ‘John Montagu’, posted comments on the Bettr website alleging, among other things, that ‘Ada Lovelace is a cheat’ and ‘Ada Lovelace is a fraud, who uses her insider knowledge of the Bettr algorithms to cheat the system’.

    Ada’s brother Charles sees the comments and tells Ada about them. Ada is very upset and contacts Bettr UK (based in London) and Bettr Inc. (based in Arizona) to ask them to remove the comments. Bettr Inc. replies that it is clearly stated in its terms of service that the website is governed by the law of the State of Arizona for defamation purposes. It therefore refuses Ada’s request to remove the posts. One month has since passed and Ada has initiated legal proceedings against Bettr UK before the High Court of England and Wales. Bettr UK seeks your advice as to whether (a) the High Court can claim jurisdiction in this case, given that only 2,000 UK-based Bettr users saw the comments, and (b) whether it can be held responsible for the publication of the comments.

    Advise Bettr UK.

To answer this question I would expect the student to discuss in order:

  1. Firstly to deal with the question of the appropriate jurisdiction to hear the case. As Ada is based in Seattle can she raise an action in England? This means first of all referring to s.9 of the Defamation Act 2013 that “of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.”
  2. Reference may be made to Dow Jones v Gutnick where in Australia a sufficient connection was found where 1,700 subscribers had paid by credit card from Australia, including several hundred subscribers in Victoria and to Berezovsky v Forbes where the High Court found that the fact that Forbes Magazine had 566 subscribers in England and Wales and the issue in question sold a further 1,349 copies at newsstands was sufficient for a connection.
  3. Further analysis of the relevant cases King v Lewis, Jameel v Dow Jones and Sloutsker v Romanova should lead to a conclusion that the court is likely to find that 2,000 readers in the UK connected to the fact that Ms. Lovelace has family in the jurisdiction (and that her brother has read the comments) means the court is likely to take jurisdiction.
  4. The question then is, is Bettr liable? Bettr may seek to rely upon the safe harbour of Art.14 of the Ecommerce Directive. However cases such as Metropolitan International Schools Ltd v Designtechnica Corp, and Tamiz v Google suggest this is not a complete defence.
  5. Bettr may be advised to instead rely upon s. 5 of the Defamation Act 2013 by “acting accordingly” under s.5(3) and The Defamation (Operators of Websites) Regulations 2013. This is more likely to give them a complete defence.
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