Case Analysis: U.K. Court's Internet Libel Jurisdiction

It's not unusual for an American celebrity or other public figure to file a lawsuit for libel in the United Kingdom, rather than in the United States, if there's a legitimate contact with that country

It's not unusual for an American celebrity or other public figure to file a lawsuit for libel in the United Kingdom, rather than in the United States, if there's a legitimate contact with that country. While U.S. defamation laws -- those covering slander (spoken communication) and libel (written or some other tangible form of communication) -- permit the media and others broader latitude when discussing a public official or public figure, U.K. laws do not distinguish between public figures and private citizens.

For private individuals, any false statement of fact that actually harms the person's reputation may be unlawful. For public figures, the defamatory statement is unlawful only if the statement was made with actual malice; i.e., the person who said or wrote it either knew at the time that the statement was false or acted with reckless disregard as to whether or not the statement was false. For public figures, this legal distinction makes a libel case harder to prove -- and win.

Celebrities such as Tom Cruise have filed libel cases in the United Kingdom, often against international news services or other publications that sell editions in England.

In a strategy worthy of a world champ's fancy footwork, boxing promoter Don King filed a libel case in the United Kingdom against a New York attorney who posted statements on Web sites hosted in the States. Most lawyers call this "forum shopping," but a U.K. appellate court on Oct. 19 allowed King to proceed with his suit across the pond.

In May 2003, heavyweight boxing champ Lennox Lewis and his promotion company sued King, former heavyweight champ Mike Tyson and their companies in the New York Supreme Court over arrangements for a further world heavyweight contest between Lewis and Tyson. The suit alleged that King interfered with this contract and commenced "a campaign of bribery, lies and even a death threat to convince Tyson not to execute" the agreement for the match.

New York attorney Judd Burstein represented Lewis and his company. He posted the entire complaint on, a Web site hosted in California. After reading an article published in the New York Daily News a couple of months later, Burstein wrote an article referring to King's "plainly anti-Semitic remark -- calling me a 'shyster lawyer,' " and posted the article on

Three days later, an article including an interview with Burstein was posted on, in which the lawyer referred to King's comments as provoking anti-Semitic feelings.

King claimed that these postings were defamatory in that they painted him as "a persistent, bigoted and unashamed or unrepentant anti-Semite," according to the U.K. court's opinion. While the New York action was pending, he sought protection under U.K. laws in 2003.

King, a U.S. citizen who lives in Florida, applied to a U.K. court for permission to serve a claim form -- seeking damages for libel -- against defendants who resided in the United States: Burstein, Lewis and his company.

Recognizing that King was a "renowned" boxing promoter throughout the world, including the United Kingdom, and has managed British boxers, including Lewis (a British citizen principally residing in New York), the court on Oct. 2, 2003, granted King the permission he sought.

Burstein appealed the decision, arguing that the term "shyster lawyer" may have a different connotation in New York, with its large Jewish population, than in England -- which could affect his defense that he was privileged to respond to the remark. Also, facing trial in London would create serious difficulties in assembling his evidence and presenting U.S. witnesses, he claimed.

Prior to the appellate court's decision, King reached an undisclosed agreement with Lewis, so Burstein was the only remaining defendant.

The Supreme Court of Judicature Court of Appeal in London held on Oct. 19, 2004, that the suit may proceed in the United Kingdom.

The court's opinion sets forth the approach a British court should take when determining in which country a case for libel should be heard -- an issue of forum conveniens.

Which forum is the "convenient forum," however, is not the real question, the court noted. The question is which country's courts are the "appropriate" forum. The plaintiff must not merely persuade the court that England is the appropriate forum, but he must "show that this is clearly so."

Initially, the trial court must determine which is the appropriate forum without considering which jurisdiction may provide a party with a legal advantage, such as a public figure suing under defamation laws. Next, the court must consider whether justice requires other considerations to change the conclusion.

To determine the appropriate forum in a libel action, the court must first consider legal rules, and then analyze four other factors, or "strands of learning."

The applicable legal rules for libel in England are: (1) libel is committed where the publication takes place; (2) text on the Internet is published where it is downloaded -- not where the site is hosted; and (3) unlike some state laws in the United States that deem publication of a defamatory statement to create only one cause of action, each publication under English law generates a separate cause of action.

The four factors trial courts should use to assist them in determining the proper forum do not involve legal rules; they are "matters of practical reason" within the trial courts' discretion, the opinion explained.

These factors in a libel case are: (1) there must be an initial presumption that the appropriate form for trial will be the court of the place where the tort was committed; (2) the more tenuous the plaintiff's connection with the United Kingdom, and the more substantial any publication abroad, the weaker the initial presumption becomes; (3) it should be noted that in "trans-national" libels, including those on the Internet, those who post information on the Internet do so knowing that they make it available to all people without any geographic restriction, so they should understand that they may be subject to laws in various jurisdictions; and (4) if the judge decides that a forum other than that selected by the plaintiff is more appropriate, he should consider whether there exists a juridical advantage for the plaintiff where he first sought jurisdiction to ensure that substantial justice will be done between the parties.

None of the factors is necessarily more important than any other, the court noted. Courts must balance these considerations in each case.

In the King case, the appellate court emphasized that it only considered whether the lower court abused its discretion when it decided in favor of a British court, not whether the appellate court would reach the same conclusion.

The lower court rejected Burstein's argument that the phrase "shyster lawyer" was subject to different interpretations and, therefore, relevant in deciding whether he was lawfully entitled to respond to the remark.

The court held that: (1) only the English publication was important since the publication was downloaded in England; and (2) the focus should not be how "shyster" would be interpreted in any particular country, but rather on King's state of mind and motivation when he uttered the words.

The trial court also noted that an equivalent libel action in New York may not survive because of the public-figure status of King. Therefore, there was little point in addressing Burstein's argument that a U.S. court would be a more convenient location to gather evidence and offer witnesses.

Finally, the court noted that it was clear King wished to provide evidence from a number of witnesses based in the United Kingdom regarding his reputation and "links with Jewish charity work in London."

Finding no abuse of the lower court's discretion, the appellate court affirmed the decision authorizing the U.K. case to proceed.

Although the appellate court's opinion emphasized that each case must be considered on its own facts, it seems clear that this case paves the way for many public figures who have some connection to the United Kingdom to seek that country's legal protection for future Internet libel cases.

Case: Lennox Lewis & Ors (Judd Burstein), Appellants, and Don King, Respondent
Court: The Supreme Court of Judicature, Court of Appeal (Civil Division) on Appeal from the High Court of Justice, Queen's Bench Division; The Lord Chief Justice of England and Wales, Lord Justice Mummery, and Lord Justice Law
Counsel for Appellant Burstein: James Price QC and Justin Rushbrooke (instructed by Forbes Anderson)
Counsel for Respondent King: Desmond Browne QC and Matthew Nicklin (instructed by Morgan Lewis Bockius)


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