The recent judgement in the case of CSI Manufacturing Limited v Dun and Bradstreet  IEHC 547 was delivered by Justice Kearns on 29th November 2013 and concerned an appeal from the Circuit Court whereby the applicant sought an order under Section 28 of the Defamation Act 2009 that certain statements allegedly made questioning the applicant’s creditworthiness and published by the respondents on the internet were false and defamatory of the applicant. The applicant also sought ancillary reliefs under section 30 and 33 of the Defamation Act 2009 for orders directing the respondent to publish a correction of the defamatory statements and prohibiting further publication of the statements. A full copy of the judgement is available here.
The applicant in this case was a producer of bespoke labels/signage for health and safety purposes located in Ballymount in Dublin. The respondent was a UK registered arm of a major multinational corporation and had offices globally. It is domiciled outside the jurisdiction of the Irish High Court but within the European Union. The respondent was in the business of publishing credit information and ratings and making them available on a subscription basis on the internet.
On 15th May 2012 the respondent placed an assessment report online in respect of the applicants which they contend called their creditworthiness into question. The evidence furnished however showed that only one company accessed the report, Thales Limited, a limited liability company who were based in Northern Ireland.
The respondent contended that an issue of jurisdiction arose under Section 28 of the Defamation Act 2009 which provides that relief of the type sought can only be granted when two conditions are met, namely:
“(9) An application under his section shall be made to the Circuit Court sitting in the circuit where-
(a) the statement to which the application relates was published, or
(b) the defendant or one of the defendants, as the case may be, resides”
The respondent argued that the “publication” requirement of section 28 had not been met in this case and sought an order pursuant to the inherent jurisdiction of the High Court striking out the proceedings against the respondent for want of jurisdiction or, in the alternative, an order setting aside the service of the summons on the respondent on the grounds that the High Court did not have jurisdiction to hear and determine the appellant’s claim, as claimed under the provisions of Council Regulation (EC) No. 44/2001 or the provisions of the 1968 Brussels Convention on jurisdiction and Enforcement of Judgements in Civil and Commercial matters. Article 5(3) provides that:
“A person domiciled in a Member State may, in another Member State, be sued….in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur”
The respondent contended that the only publication of the defamatory material occurred outside the jurisdiction of the particular circuit court and hence that court had no jurisdiction. The publication in question concerned an online publication and hence the issue of jurisdiction depended on the location of the publication.
A number of cases were produced to the Court under Article 5(3) of the Brussels I Regulation namely, EDate Advertising GmbH v. X and Martinez & Anor. v. MGN Limited  Q.B. 654, Shevill, Ixora Trading Inc., Chequepoint SARL and Chequepoint International Ltd. v. Presse Alliance SA (C-68-93), E.C.R.  I-00415, and Coleman v. MGN Ltd.  IESC 20, (Unreported, Supreme Court, 15th March, 2012).
The Court noted that the Supreme Court in the Coleman case examined an instance where there was alleged defamation by an English newspaper of the plaintiff. The defendant brought a motion in the High Court seeking an order that the Court decline jurisdiction and a declaration that the Court had no jurisdiction over the subject matter of the proceedings. The High Court refused to grant the order sought and the defendant appealed to the Supreme Court. There was no evidence before the court of online publication and no evidence of hits on the website and therefore the court did not have jurisdiction to determine the plaintiff’s claim. An extract of the complexities of internet publication were addressed by the Supreme Court in Coleman at paragraphs 12-15 and worth a read.
In the Martinez case, the court clarified that for internet publications it sufficed that the content has been placed online or otherwise made accessible in the country of receipt.
In this case the applicant contended that publication differed from Coleman as it was alleged in Coleman that as the site in question was a site accessible only to subscribers, the defamatory publication could not be deemed to have been published in this jurisdiction. The site in the present case is a subscription case and akin to Coleman it could not be inferred that publication had occurred. Where a site is a subscription site the information is not readily available across jurisdictions. The court in Coleman required evidence of internet publication and access from Ireland. It was noted in the present case the only evidence of access was by a company situated in Belfast.
The court observed that “Although the information in the present case was technically “accessible” in Ireland due to the fact that the respondent had Irish clients it must still be proven that it had been accessed in this jurisdiction to show publication within Section 28 of the Defamation Act 2009. This has not been made out by the applicant“. The court further noted that the site is subscription meaning that the information is only available to those who subscribe and in this case the only subscribers were Thames.
On a strict interpretation of Martinez, the court considered:
(a) that the particular nature of the publication in this case was to a restricted audience; and
that the centre of interest of the injured party in this case required examination.
The Shevill case set out the centre of interest test which acknowledged the importance of both the place of the act of publication and the place of receipt of communication. It was noted that the victim in this case was an Irish company, the offending website of the respondent was based in the UK and that the fact that publication only occurred in Belfast also raised a “controversial issue”.
Justice Kearns noted that the centre of interest test was strongly relied upon by the applicant and set out in paragraphs 42 to 52 of Martinez case and reproduced in full in the court’s judgement. At paragraph 52 the Court concludes:
“52 Consequently, the answer to the first two questions in Case C‑509/09 and the single question in Case C‑161/10 is that Article 5(3) of the Regulation must be interpreted as meaning that, in the event of an alleged infringement of personality rights by means of content placed online on an internet website, the person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.”
Justice Kearns concluded:
“For the centre of interest test to apply it must be established that material was published and read in Ireland. Based on the test in Coleman and the fact that the subscription site is not readily accessible it cannot be said that the centre of interest test can apply where the Shevill rules acknowledge the two steps of publication and the place of receipt of communication“.
In summary the High Court concluded as follows:
1. The publication in question by the respondent was on a subscription site only accessible to people paying a fee. In the instant case the publication was seen only by a subscriber in Belfast and the publication was from a company based in the United Kingdom. Hence publication which fulfills the requirements of section 28 of the Act of 2009 has not been made out.
2. Looking at the European jurisprudence as outlined in Martinez and Shevill the court will only proceed to apply the centre of interest test after publication is made out. The Supreme Court examining the same jurisprudence in Coleman could not infer publication from a subscription site where the information was not readily accessible in this jurisdiction. Furthermore no evidence of publication in Ireland has been made out.
3. Shevill confers jurisdiction on courts in each Member State in the territory where the content is accessible. Although the content is available to subscribers in Ireland it has not been proven to have been accessed by subscribers in Ireland. I would therefore allow the respondent’s appeal”