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High Court rejects libel case because article received approximately four visits

OUT-LAW News, 13/11/2009

A libel action over an article that appeared on the website of a South African magazine has been dismissed by a court in England. Evidence suggested that the article had received only four visits from the UK in a two month period.

Describing the claim as being "totally without merit," Mr Justice Tugendhat said the claimants had failed to establish "substantial publication" within the court's jurisdiction.

The action was brought by LonZim, an investment firm listed in London on the Alternative Investment Market, part owned by African conglomerate Lonrho. Isle of Man-based Senior executives of both companies, Geoffrey White and David Lenigas, were also claimants. They were suing Andrew Sprague, a non-executive director of a company that held LonZim shares.

Comments attributed to Sprague that criticised LonZim's management appeared in a South African weekly magazine called Financial Mail in May 2009. The claimants said he was accusing them in the article, among other things, of having "cynically and greedily indulged in self-enrichment at the expense of, and contrary to the interests of, shareholders."

Mr Justice Tugendhat said that in allegations of online libel, the claimant must prove publication within England and Wales. Previous cases have established that 'publication' requires evidence of readership, not just availability. The claimants failed to prove that.

They argued that "a significant proportion" of the magazine's online traffic came from England and Wales but failed to provide supporting evidence for that assertion.

Sprague presented evidence of traffic figures from the website for the two months following the date of first publication. The publishers had recorded a total of 65 visits for the contentious article.

"It is not possible to say whether these visits included more than one visit by the same person," noted Mr Justice Tugendhat. "Nor is it possible to say in which jurisdiction the visitors were located."

The publishers did say that on average approximately 6.79% of visits to their website are made by users of the internet based in the UK. "If the average percentage of 6.79% is applied to the 65 visits, the result is that about 4 visits might have been made by one or more visitors based in the UK," said the judgment.

"It is not possible to say how the 6.79% average figure might be attributed to which of the different jurisdictions within the UK," wrote Mr Justice Tugendhat. "London is not the only important financial centre in the UK. Edinburgh is another."

In evidence, White presented a Google Alerts email, addressed to himself. It reproduced an extract from the article – though not the words complained of. The search term for the alert was 'lonrho'.

Mr White said that "many people within the jurisdiction" were likely to have relevant Google Alerts but he failed to provide figures. Instead, Mr White presented three emails sent to him from other individuals in England, referring to the article.

The claimants' solicitors also presented evidence from Alexa, a website traffic estimation service. They had used the service to show that the Financial Mail's site receives approximately 330 visitors from the UK per month, but Mr Justice Tugendhat dismissed that finding.

"The information he gives does not relate to the specific articles containing the words complained of, nor does it identify in which jurisdiction within the UK the visitors might have been located," he wrote.

The court was told that the words complained of are still accessible on the internet, but Mr Justice Tugendhat noted that its publishers were not defendants in the case before him and said there was no suggestion that Mr Sprague could do anything to change or block the article.

"What I do decide is that, taken at its highest, this is evidence at best of minimal publication of the words complained of in the Financial Mail libel […] and certainly not evidence of any substantial tort committed within the jurisdiction," wrote Mr Justice Tugendhat.

Another claim, alleging comments made by Sprague at a company AGM in London were slanderous, was also dismissed as an abuse of process. Only 30 people had attended the AGM, the comments were described as "clearly opinion," and they were found to be not related to the personal reputations of the individual complainants.

"The prospect for a shareholder at a company meeting of being sued by claimants such as these, for expressing opinions or views such as those alleged here to be slanders, would inhibit free expression," wrote Mr Justice Tugendhat. "It would be very much against the public interest."

Dismissing both claims as being "totally without merit," Mr Justice Tugendhat speculated that the case may have been pursued "for reasons other than to obtain vindication of the Claimants' reputations." He cited an email allegedly sent from Lenigas to Sprague which said: "I will nail you to the corporate cross for the stuff you said about us." It added: "I will stomp your corporate head".