Home or Away: High Court allows proceedings against US publisher to continue in Ireland

A recent decision of the High Court highlights the relevant considerations to be taken into account by an Irish court when deciding whether to allow defamation proceedings to be litigated in Ireland, where the offending publication or broadcast originated in a non-EU country.

A Plaintiff defamed by a publication or broadcast originating in a non-EU country (e.g. UK or USA) may consider issuing defamation proceedings in Ireland on the basis that the publication was also published/distributed here.

Before doing so, he/she should consider not only the potential difficulties down the road in enforcing an Irish award of damages against a Defendant who only has assets outside of the EU but more importantly whether the Irish courts have an inherent jurisdiction to stay proceedings on the grounds of forum non conveniens. That is the Latin phrase for "inconvenient forum" and means that if proceedings issue in Ireland and the Court subsequently finds that there is another jurisdiction (such as the one in which the publisher is based), which is clearly or distinctly more appropriate for the issuing of proceedings, a stay can be put on the Irish proceedings. In determining the most appropriate jurisdiction, a Plaintiff needs to consider factors such as those of convenience, expense, applicable law and location of the parties.

Forum Non Convenians

The principle of forum non conveniens was considered by the Irish High Court in a recent decision of Justice Garrett Simons delivered on 11 February 2025 in the matter of Declan Ganley and Rivada Networks Ltd v Cable News Network Inc & Ors [2025] IEHC 62.

Background

The case involved the Defendants’ application seeking a stay on defamation proceedings issued in Ireland, on the basis that the proceedings should more appropriately have been brought before the Federal Courts or Local Courts in Washington, DC as they had a greater connection to the events concerned.

The events concerned related to an alleged defamatory news story, broadcast on the CNN news channel and published as an article on the CNN website in October 2020. The broadcast was published in Ireland via the “CNN International” TV channel which is available in Ireland through Sky, Vodafone, Virgin Media and Eircom. The article was published in Ireland via the cnn.com website. The Defendants accept that there was publication in Ireland and that the Irish Courts have jurisdiction to entertain the defamation proceedings. However, the Defendants argued that the Irish Courts should decline to exercise their jurisdiction on the grounds that there is a more appropriate forum available.

The first named Plaintiff, Mr. Ganley, is an Irish citizen residing in Ireland. The second named Plaintiff is an Irish registered company connected with Mr. Ganley (albeit the Defendants dispute that this is the entity it was referring to in the publications).

Considerations of the Court

In considering whether to grant a stay of the proceedings, the court considered the fact that any claim for defamation in Washington, DC would now be statute barred and the Defendants were not prepared to waive the time bar. The court commented that while this means the foreign forum is unavailable to the Plaintiffs, that will not always be the decisive consideration and the pragmatic approach is to consider the reasonableness of the conduct of a Plaintiff in pursuing proceedings before the Irish Courts alone, without taking the precaution of issuing a protective writ in the foreign forum.

The Court noted that the more obvious it is that there is an alternative forum which is clearly or distinctly more appropriate than Ireland, the less reasonable it will be for a Plaintiff not to have issued a protective writ. Ultimately in this case the court, in refusing to grant the stay, felt that the proceedings had a strong connection to the Irish State given the Plaintiffs’ connections to Ireland and found that it could not be said that the courts in Washington, DC represented such an obvious alternative forum that the Plaintiffs acted unreasonably by not issuing a protective writ there and safeguarding their position in respect of the limitation period. The court found that the Plaintiffs acted reasonably in confining themselves to instituting proceedings before the Irish courts and that they did so within the relevant statute period here.

The Court did comment however that if this was a situation where a statute period had expired in one jurisdiction and the Plaintiff was taking advantage of a lengthier statute period in another jurisdiction, then that might be cause for a stay on proceedings.

The Court also commented on the following which should be borne in mind if making such an application:

1. It considered it telling that the notice of motion seeking to stay the proceedings only issued after the limitation period in Washington, DC expired, and that prior to that date, the Defendants’ position in correspondence had been to contest the jurisdiction of the Irish Courts to entertain the proceedings.
2. It noted that the proceedings in this case were confined to a claim for damages for loss of reputation in Ireland only and the Plaintiffs were not claiming for worldwide damage to reputation.
3. It made it clear that it is a condition precedent in these types of applications, that the moving party must nominate an alternative forum and adduce evidence which establishes that the named forum would have jurisdiction to entertain the claim. It is insufficient to just point to another country and say that the claim has a stronger connection with that country. The hearing of the application had been adjourned at an earlier stage to allow both sides file expert evidence on foreign law.

Decision

Ultimately the Court refused the stay in this instance in circumstances where granting it would have the practical effect of depriving an Irish citizen, who is habitually resident here, of the right to pursue an action for defamation in respect of statements published within the jurisdiction of the Irish Courts and in circumstances where it is now too late for the Plaintiffs to institute proceedings in the foreign forum.

The full Judgment can be read here.

Conclusion

The question of where defamation proceedings should be issued should be carefully considered where the Defendant publisher is outside of the EU. While weight should be given to the ability to enforce any award of damages made by an Irish court, against a non-EU publisher that possibly has no EU assets, the more important consideration is where the most appropriate jurisdiction for the issuing of proceedings is. It may be prudent to consider issuing a protective writ in any alternative jurisdiction, to safeguard the Plaintiff until the issue of jurisdiction is either accepted by the Defendant or determined by the Court.

The court in Ganley did not have to consider the extent of the publication in Ireland when adjudicating on the application before it. In Ireland, harm to reputation is presumed once it is successfully established that a statement is defamatory and it would only be at award of damages stage that a court would take into account the extent of the publication. This is in contrast to England and Wales where a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Plaintiff. While Ireland is currently looking to reform of its own defamation laws, the Defamation (Amendment) Bill 2024 looks to introduce a “serious harm test” only when it comes to corporate bodies and not when it comes to individuals.