Court of Appeal affirms lack of jurisdiction in Ryanair’s defamation proceedings against Australian pilot

About this case:

• Judgment:
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Background

The relevant comments were made by Mr Fleming as a part of a series of lengthy posts concerning aviation safety; an initial post stated that four Ryanair aircraft flying to Spain from different destinations on a particular evening had declared fuel emergencies, following a heavy thunderstorm in Madrid which had required the diversion of the aircraft to Valencia. The initial post suggested that this incident highlighted unacceptable problems with minimum fuel policies practised by certain airlines.

Mr Fleming’s own post challenged both the experience of the Ryanair pilots and the wisdom of the minimum fuel policies, which he maintained were practised by Ryanair.

Ryanair argued that these comments jeopardised its reputation, and that it was entitled to have these issues determined by the courts of the place where the defamatory post had been published – central to this contention was the claim that the defamatory post had in fact been published in Ireland.

Mr Fleming denied that the comments were defamatory, and maintained that Ryanair sought to ground the Irish defamation proceedings “on a slender and technical jurisdictional basis…when the effect of this would be to deprive him of his right to be sued in the courts where he is domiciled”.

Conflict of laws and foreseeability

According to the fundamental principle of conflict of laws, “absent special circumstances, a defendant should normally be sued in the place where he or she is domiciled”.

Justice Hogan added that “a defendant should not be forced to defend in a foreign jurisdiction – and be thereby deprived of the legal system with which he or she is most familiar, in addition to the attendant costs and expense of defending proceedings in a foreign jurisdiction – unless there are some special circumstances which justify the attribution of jurisdiction to the courts of the forum selected by the plaintiff”.

This must inform any consideration of whether the plaintiff can satisfy the Court that the High Court had jurisdiction in the matter and whether it would be appropriate to exercise that jurisdiction on forum conveniens grounds.

Ryanair indicated that twelve participants identified themselves by reference to an Irish location - however, this does not in and of itself necessarily mean that any of them actually accessed or downloaded Mr Fleming’s post when they were in Ireland.

Furthermore, Justice Hogan found it “hard to say that a participant posting from Australia on an international website based on California in relation to incidents which took place in Spain could reasonably foresee that he would thereby expose himself to litigation in Ireland simply by reason of comments made about an Irish-based airline in the course of that posting where that poster had no other connections with this jurisdiction and where the forum itself was not hosted in Ireland”.

Jurisdiction

In order to establish jurisdiction, Ryanair had to establish publication in Ireland.

According to section 6(2) of the Defamation Act 2009 – proof of publication to a third party is an essential ingredient of the tort. Considering cases such as Al Amoudi v. Brisard EWHC 1061, 1 W.L.R. 113 and the Supreme Court’s decision in Coleman v. MGN Ltd. IESC 20; Justice Hogan recognised that “there could be many circumstances where the fact of publication in an on-line version – such as the of a major newspaper - would, as a matter of common sense, lead to the inference that it was so published to a third party”.

In the circumstances, this could not “obscure the fact that the plaintiff is still required to prove that the material was accessed or downloaded by a third party in this jurisdiction”.

Independently of any other consideration, Ryanair had not demonstrated that the Irish courts had jurisdiction in the matter since there was “no actual evidence that a third party located in this jurisdiction has accessed or downloaded the offending post”.

Forum conveniens

Justice Hogan was of the view that the connections of the alleged tort with this jurisdiction were “simply too tenuous”, and that there was nothing to suggest that the High Court’s conclusion that the proceedings should be dismissed on forum conveniens grounds was incorrect.

If the High Court had jurisdiction, “it could only have been on the rather slender and exiguous basis that a handful of contributors to the forum discussion had accessed or downloaded the offending post in question in this jurisdiction”. According to Justice Hogan, this in itself was a strong indicator that Ireland was not the natural forum for the hearing of the defamation proceedings.

Justice Hogan distinguished the case from the position in Richardson v. Schwarzenegger EWHC 2422, due to the fact that the underlying events did not take place in Ireland.

Furthermore, “even if the Irish courts had jurisdiction in the matter Irish law would not be regarded as the proper law of the tort, given that these comments were made by an Australian in Australia on a website hosted in California”.

Conclusion

Justice Hogan upheld the decision of the High Court and dismissed the appeal on grounds of lack of jurisdiction and forum conveniens.