Libel

Lex Loci Delicti, not Praetor Peregrinus

Or, Virginia is for lovers, not libel tourists.

|The Volokh Conspiracy |

From Judge David Oblon's last week in Mireskandari v. Daily Mail & General Trust PLC:

In this defamation case, a United Kingdom … news publication allegedly defamed a UK [lawyer] practicing in the UK at a UK law firm, involving actions that occurred in the UK, through news stories of parochial interest to UK readers, to gain favor with UK police. The distilled question before the Court is, why is this case in Fairfax, Virginia, USA? The legal question is, can the Court properly exercise personal jurisdiction over the UK Defendants under Virginia's Long Arm Statute and the Due Process Clause of the United Stales Constitution?

[No, says the court, for various reasons, and adds:]

Fairfax County, Virginia, USA, Is Not The World's Defamation Court.

Some may have misread the Johnny Depp v. Amber Heard Opinion Letter, wherein another judge of this Court held Virginia was the proper forum for actor Johnny Depp's defamation suit against his ex-wife, actress Amber Heard, despite the seemingly thin connection of the parties and the cause of action to Virginia.

For starters, the issue in Depp was of forum non conveniens and venue—not in personam jurisdiction. Nevertheless, any jurisdictional or locational ruling in Depp expressed a limiting principle, not an expansive invitation to forum shop in Fairfax County. The Court held under the lex loci delicti rule that the cause of action in a defamation case arises where the last act for publishing the allegedly defamatory statement took place. In Depp, the last act was when The Washington Post uploaded the statement in an article to the Internet from servers located in Virginia. Stated differently, Depp stands for the principle that Virginia is one of the few places where that defamation action may be adjudicated.

The logical extension of Depp is that the Daily Mail case may be brought where the last link of the publication of the defamatory statements occurred. If that last link was in Virginia, Mr. Mireskandari has not realistically pled that. Merely being accessible is not synonymous with where something is published. Although in paragraph 14, Plaintiff avers Daily Mail "published" the defamatory articles in Virginia, that statement is belied by the rest of the Amended Complaint. Defendants are UK companies operating a UK news publication. And even assuming the place of publication is where the article was first uploaded onto a server, Mr. Mireskandari has not pled that Virginia was the place….

The only real similarity between Depp and this case is that Virginians sitting in Virginia can access both The Washington Post and Daily Mail online. The differences are remarkable: The Washington Post is a US company with offices in Virginia, is printed in Virginia, and its digital platform is created and routed through servers in Virginia. Conversely, Daily Mail is a UK company and has the "'.co.uk" web address of UK domains. Unlike in Depp where the alleged defamatory op-ed was first printed and/or uploaded in Virginia, Mr. Mireskandari has not alleged the Daily Mail's alleged defamatory article was first published in Virginia, as opposed to elsewhere, such as the UK….

The Circuit Court of Fairfax does not sit as praetor peregrinus. {In ancient Rome, a praetor was a judicial officer, who generally handled matters of equity. A praetor urbanus was an arbiter over disputes between citizens; a praetor peregrinus handled suits in which one or both parties were foreigners.} Daily Mail's Motion to Dismiss is granted….

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  1. Why did they even want to bring the case in a U.S. court? My impression is that UK defamation law is much more favorable to the plaintiff.

    1. Not as much as it used to be, but yes.

      I can think of only two reasons:
      1. Plaintiff is hoping to get some kind of massive punitive damages award.
      2. Plaintiff is thinking about the key factual basis at issue in the case, the alleged unlawful access to his records in the National Student Clearinghouse, which is in Virginia. But presumably a California court could have sorted that out just as easily, and an English court may well have been able to as well.

      1. Maybe he didn’t want to draw the attention of UK courts to it for personal or professional reasons?

        1. Given that he seemed to be resident in California, I’m having trouble understanding how that would work. But then again, I’m having trouble understanding many aspects of the plaintiff’s case…

    2. I can think of several reasons beyond what Martinned said:
      * In England and Wales, the loser pays costs (and this suit is a loser there). The nuisance value of a suit is much greater in Virginia.
      * An English court is perhaps more likely to take judicial notice of previous determinations surrounding these allegations (e.g. the disciplinary tribunal that struck him off as a solicitor, the appeal where the judge described his conduct as “wholly abusive, unreasonable and manipulative,” etc).
      * English damages for defamation are much limited (even aside from punitive damages). You will not get millions in damages for being called a “bogus solicitor” when you’ve already been struck off for 104 counts of ethical breaches, and convicted of 15 counts of telemarketing fraud. Maybe in Virginia you might?
      * Perhaps a judgement in Virginia is worth more to him. He was ordered to pay millions in legal fees, sued for misconduct by previous clients, etc. He may be able to see more of the proceeds from a judgement in Virginia than in England & Wales.

    3. Google the plaintiff: he seems to be a vexatious who has had bad luck in California federal courts, and has been ordered to pay up under California’s anti-SLAPP statute. Virginia is a relatively attractive defamation forum in the US because it doesn’t have an anti-SLAPP law (part of why Devin Nunes, for instance, files his frivolous suits against fictional cows there).

  2. On the other hand, some places are a libel void.

    New York is one of several states that have no long arm statute for defamation. A UK citizen can stand for a few minutes on the tarmac at JFK Airport, libel a New York resident in a way that destroys her career, and she would have to go to the UK to sue him.

  3. Maybe this particular case shouldn’t be heard in Fairfax County, but I would note that I found that the Daily Mail provided much better coverage of the shooting of John Geer by Fairfax County police than the Washington Post (ostensibly the local paper) did.

    1. Washington Post (ostensibly the local paper)

      Having grown up in Fairfax County, the Washington Post is only the “local” paper in as much as it covers the region. But they’ve got about as much interest in covering police-on-white crime as the New York Times.

  4. I live in Fairfax County. It’s bad enough our local pols are trying to solve the country’s immigration problems on my dime but now some blokes from the UK want us to mediate their verbal spat?

    Piss off.

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