Page 63 - Law and the Media

Law and the Media
The defence typically applies to those with secondary publication responsibility, such as
printers, distributors and retailers or live broadcasters, who can show they had no editorial
control over the primary publisher and no knowledge of the offending material.

The statutory defence supersedes the common law defence of innocent dissemination,
although it does not abolish the common law defence for distributors and retailers.
Distributors and retailers are involved solely in the printing, producing, distributing and
selling of publications that contain the defamatory statement.

The common law defence requires the defendant to show he was unaware that the
publication contained a libel, defined as an indefensible defamatory statement. The statutory
defence requires the defendant to show he was ignorant of the defamatory statement, in other
words a statement capable of a defamatory meaning that may not be libellous because it may
be subject to, or defensible, on the grounds of justification or another defence. This may be
an inadvertent narrowing of the defence.

1.4 Procedure

1.4.1 Jurisdiction

English courts have jurisdiction whenever there has been publication in England. Jurisdiction
can be established on evidence of only a single publication. A libel case can be brought in
England even if there is a small circulation in this country and the main readership is abroad
(Shevill v Presse Alliance SA (1995)).

Service outside the jurisdiction
If the defendant is a foreign person or legal entity with no presence in England, the claimant
must first obtain permission from the court to serve proceedings outside the jurisdiction.
Permission to serve outside the jurisdiction is not required where the defendant resides in a
jurisdiction that is a contracting party to the Brussels Convention or the Lugano Convention,
essentially member countries of the European Union.

If permission to serve outside the jurisdiction is required, the application must be supported
by the grounds for the application, the whereabouts of the defendant and evidence supporting
the merits of the claim. Service outside the jurisdiction can be effected personally or by any
method allowed in the jurisdiction where service is to take place.

Forum non conveniens
If a claimant obtains permission from the court to serve proceedings on a foreign defendant
and jurisdiction is established in England, the defendant can apply to the court to have the
action dismissed on the grounds of forum non conveniens. This fundamental principle was
established in order to ‘identify the forum in which the case can be most suitably tried in the
interests of all the parties and for the ends of justice’ (Spiliada Maritime Corporation v
Cansulex (1987)).
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