People think the internet is the most lawless regime around. No. It is the most lawed regime possible. Every post on the internet is subject to the laws of every country in which it can be read. This naturally causes problems; the Wall Street Journal was successfully sued in Australia in libel for an article in its US edition that had been posted to its website. Because the website could be read in Australia. Twitter has the same effect, anyone can read tweets anywhere, and for the purposes of libel a tweet is published where it is read – not where it is uploaded.
This can lead to inadvertent libel claims in the UK, as if one person in Britain reads a tweet, that tweet has been published in Britain. And therefore a claim can be brought here. The Court has in the past tried to stem this particular forum-shopping tide; in Jameel v Dow Jones, it was held that the damage caused by half-a-dozen people seeing a defamatory article was too small to warrant Court proceedings. Perhaps the Court was a little harsh on Mr Jameel. After all, many claims are brought for token damages. Then again, perhaps the Court took on board damages would be peanuts - certainly too small to cost the thousands a libel action normally costs.
How the Jameel decision can be used has been thrown into question by the Cairns case. Simple enough facts; Lalit Modi, the chairman of the Indian Premier League posted a tweet accusing the New Zealand cricketer Chris Cairns of fixing matches. The comment is self-evidently defamatory – it would lower right-thinking people’s opinions of Mr Cairns. Before even raising the substantive defences (fair comment, truth and qualified privilege), however, Mr Modi challenged jurisdiction. Yes, it was published in England, but, like Jameel, to too few people. Damages would be so small that the case would be pointless.
The Court looked at this single issue first. If it found in favour of Mr Modi, Mr Cairns was out. Otherwise it would proceed to a trial on the proper issues. A good tactic from Mr Modi, as this preliminary issue would not need the serious evidence required to support his tweet. However, Mr Cairns is still at the crease.
Why was this different from Jameel? Firstly, the number of people who saw the tweet. Without asking everyone in the world whether they had seen it, the Court had to rely on estimates from experts; Mr Modi’s expert claiming 35 people would have seen it, Mr Cairns’ expert 100. Not big numbers. But bigger than in Jameel.
Secondly, the risk of further publication. Mr Modi removed his tweet, but apparently continued to refer to it. There was the risk that more people could hear the allegations; the Court considered it premature to throw out the claim.
Thirdly, Mr Cairns has a substantial reputation in England, and has lived here for substantial periods of time. His links to the UK are stronger than those of Mr Jameel. Another good reason for keeping the claim here.
Therefore the Court decided Jameel could be distinguished. The case continues.
The case does address the nature of libel damages. Although journalists often campaign for “fairer” libel laws, to prevent so-called forum-shopping (people seeking any excuse to sue in a Claimant-friendly UK), the facts do not really bear this out; the number of libel cases brought per annum is under 300. A tiny amount. The main problem with libel is the cost. If the Cairns v Modi case proceeds to trial, it will be very expensive. Evidence from India, flights or videolinks involved, a jury, maybe several weeks in Court. For what? An allegation read by at most 100 people. Under normal circumstances, the damage caused by this would be minute. A few hundred pounds. Given Mr Cairns' greater fame, and the risk that such a rumour may sweep across the cricketing world, damages may be higher in this particular case, but the principle for the majority of libel cases still stands. Libel damages are not large. A commercial case worth a million quid will take a month in Court and cost maybe a third of a mil per party. A libel case that takes the same time and cost will not exceed £50k in damages. And your average libel case won't attract damages into five figures. Yet the costs are allowed to explode.
Why is this? If someone tried to claim £100,000 in costs for a commercial dispute worth £10,000 they would be laughed out of court by the judge. Libel does have something else in it, the cleansing of reputation as well as damages pure; but as the damages are meant to have that same effect, how much is a reputation REALLY worth?
Any normal commercial £10k claim would ordinarily be decided by one judge in one day with costs capped. Personal injury claims will not be that much more convoluted. Is there any good reason why the principles of proportionality should not apply to libel? Parties would have to rely on their best evidential shots, certainly; but how much would the extra million or so in costs shift the case from the best couple of points? Crucially, how difficult is it for a defendant to prove the truth, or, at least, that the defendant was prudent in making such comments? It is surely not beyond the wit of a judge to suss out between contrasting witnesses. After all, they do that all the time in road accident cases, why should it be different in libel?