English Court Allows Defamation Action to Proceed Despite Evidence of Low Readership

Author: Ranjini Acharya

John Alexis Mardas, a former associate of the Beatles, has won the right to bring defamation proceedings against the New York Times and the International Herald Tribune in an English court for publishing an article that described him as a “charlatan” who spread false rumors about the Beatles that may have resulted in the band’s breakup. Evidence in the case established that there were less than 200 hundred hard copies of the article published and approximately 30 hits of the story online. In allowing the case to proceed, Justice Eady of the English High Court held that the determination of “substantial publication,” in the context of online defamation cases, “cannot depend upon a numbers game, with the court fixing an arbitrary minimum according to the facts of the case.”

The recent English High Court case of Mardas v New York Times Company & Anor [2008], EWHC 3135 (QB), has shed further light on the issue of what amounts to “substantial publication” in the context of defamation proceedings brought in response to online publications.

John Alexis Mardas, a former associate of the Beatles now residing in Greece, brought an action for libel in an English court against the New York Times and the International Herald Tribune for publishing an article both in hardcopy and in print, which referred to him as “a supposed inventor and charlatan” and which went on to state that “you have to wonder whether the Beatles’ future might have played out differently if [Mardas] hadn’t been in Rishikesh to spread rumors about the Maharishi.” Mardas sued for defamation, alleging that the article suggested that he was a conman and trickster who had spread false rumors that may have resulted in the break up of the Beatles.

In establishing an action for defamation under British law, the plaintiff is required to demonstrate, inter alia, that the allegedly defamatory statement had been “published” in the sense that it has been communicated to another person; however, in the case of Jameel (Yousef) v Dow Jones Co Inc [2005], QB 946 (‘Jameel’), the High Court had held that there would be no action for defamation where the evidence suggested that the extent of publication in the jurisdiction was very small.

In this instance, Master Leslie of the High Court found that there had been 177 hardcopy publications and 4 online hits of the New York Times publication, and only 27 online hits of the International Herald Tribune publication. On the basis of this finding of fact, and relying on the authority of Jameel, the Master held that the matter was not sufficient to be brought to trial because there had not been sufficient publication in the UK to justify “what would be taken up by this case in terms of money, in terms of costs, in terms of what is at stake, in terms of proportionality, and above all, I am bound to say, in terms of the court’s resources.” Mardas appealed the decision to dismiss the case, disputing the finding of fact and the reliance placed by Master Leslie upon the earlier case of Jameel.

The primary issue upon appeal was whether there had been “real and substantial” publication of the allegedly defamatory article. In allowing the appeal, Justice Eady of the High Court distinguished the present case from Jameel on the basis that, in Jameel, there had been no “realistic prospect of achieving vindication in any event.” His Honor held that Jameel constituted an “exceptional case” in which the appropriate judicial response was to strike out an action as an abuse of process because there had been minimal publication and minimal damage caused to the claimant’s reputation. In the present case, however, Justice Eady felt that the fact that the article was published online, and continues to be available online, “gives rise at least to a possible inference that there has been a continuing, albeit modest, readership” and so could possibly sustain an argument that Mardas’ reputation was more than minimally damaged.

In reaching this conclusion, his Honor was careful to observe that a finding of defamation is not based on a “numbers game”, and it could nevertheless be the case that “a few dozen is enough to find a cause of action here, although the damages would be likely to be modest.” Thus, Justice Eady held, although the evidence regarding readership of the publications was contested, even if there had only been 27 hits on the story, a case for defamation could arguably still be made. He noted that “it was inappropriate for a finding of fact to be made on the scale of publication on the basis of incomplete evidence. It is a matter which should be left to trial. Furthermore, and in any event, even if the publications were confined to [27 instances], there was no basis for concluding that there was no real and substantial tort.”

More: http://www.bailii.org/ew/cases/EWHC/QB/2008/3135.html

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