The fallout from the defamatory allegations and innuendos directed at the late Lord McAlpine has highlighted the potential consequences of ill considered comments (or emoticons) on the internet. Despite the salutary warning provided by this case, defamation remains commonplace on the web. This presents new challenges in identifying the person responsible. Comments are often anonymous and the only ones who know "who done it" are often the wrongdoer and an (often offshore) website operator which refuses disclosure. Faced with that situation, what is the defamed party to do? This situation was considered by the Court of Session recently in Clark v TripAdvisor LLC.
The Facts
Clark operated a guesthouse which was the subject of unfavourable reviews on TripAdvisor. The reviews were, on the face of it, defamatory but were posted anonymously. Clark sought disclosure of the identity of the reviewers from TripAdvisor. TripAdvisor refused.
Clark raised proceedings under the Administration of Justice (Scotland) Act 1972 for an order requiring TripAdvisor to disclose the identity of the culprits. TripAdvisor is however based in Massachusetts and has no place of the business in Scotland. Could a Scottish court make such an order against a party with no place of business in Scotland?
The Decision
Clark argued that because loss had been suffered in Scotland the court had jurisdiction to determine any defamation action in respect of the reviews. In those circumstances, the action for disclosure should be viewed as ancillary to the prospective defamation proceedings and, therefore, the court could make the order sought against a party outside Scotland.
The court disagreed, holding that the Act was limited to application in Scotland and that there is a presumption against an act having effect beyond the territory it is stated to extend to; to find otherwise would have amounted to an alarming assertion of global jurisdiction.
Comment
This decision will be disappointing to Scots targeted by internet defamation on foreign websites.
English courts have adopted a different approach - finding that similar orders can be made against a party outwith their territorial jurisdiction. The position in England has been further enhanced by the Defamation Act 2013, under which a website operator can be held liable for defamatory statements if they refuse to disclose the identity of an anonymous contributor. This provision does not apply in Scotland.
There has been a recent drive at Holyrood to try to make Scotland a more desirable forum for litigation. This decision is likely to make Scotland less attractive forum for litigation in a field which is only to grow.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.