DEFAMATION
Artists, Internet, Broadcasters
ARTICLE:
Jonathan Coad, Solicitor, Simkins Partership

This case where judgment was handed down on 29 October 2004 concerned the allegations which surrounded Arnold Schwarzenegger as he stood for election as governor of California. The claimant was the television presenter Anna Richardson. She was one of a number of women who came forward and suggested that Schwarzenegger had engaged in inappropriate conduct. It was the denial of these allegations and suggestion that they were fabricated which gave rise to a claim in which the question of the appropriate forum to litigate Schwarzenegger’s reputational issue came before Mr Justice Eady.
There was what the judge himself described as a cri de coeur from Richard Spearman QC on behalf of one of the defendants, Mr Walsh (a spokesman for Mr Schwarzenegger), in these terms: “This case is about whether a spokesman for a foreign politician in a local election campaign who was asked by a foreign newspaper to respond on behalf of the foreign electoral candidate to allegations concerning the past conduct of that candidate, and he provided a response that is immune from suit under local law and is protected by qualified privilege under our system in circumstances where malice is not and could not reasonably be alleged, should nevertheless be amenable to the exorbitant jurisdiction of the English court …”. The application was therefore to set aside an order giving the claimant permission to serve a claim form outside this jurisdiction, which had previously been refused by a master and was now the subject of an appeal before the judge. In upholding the master’s order the judge identified the following factors:

(i) The claimant was a United Kingdom citizen.
(ii) She was both resident and worked here.
(iii) She was widely known and had an established reputation in this country.
(iv) She had no comparable connection with any other jurisdiction, including the United States.
(v) On the basis of the presumption of damage established in Shevill v Presse Alliance, damage to her reputation in this jurisdiction is presumed.
(vi) The underlying events (should there be a plea of justification) took place in London.
(vii) English law is applicable to publication in this country.

The judge affirmed the Court of Appeal approach in Lewis v King, which applied the same principles. The UK will therefore remain the preferred forum when the necessary circumstances are in place for determining high profile reputational issues which might be determined in the US if the legal climate there were not so pro defendant.
Jonathan Coad

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