Original URL: http://www.theregister.co.uk/2008/12/19/beatle_case/

Beatle associate can sue over 'charlatan' claim, says High Court

Decision hung on hits

By OUT-LAW.COM

Posted in Law, 19th December 2008 09:57 GMT

A former associate of The Beatles has won the right to sue in England over a New York Times article which called him a charlatan. Because the article was published online the case should go ahead, the High Court has said.

John Alexis Mardas was known as 'Magic Alex' when he associated with The Beatles in the late 1960s. In a story on the Maharishi in the New York Times and the International Herald Tribune Allan Kozinn referred to "Alexis Mardas, a supposed inventor and charlatan who had become a Beatles insider".

Mardas sued, claiming that the article suggested that he was a conman, a trickster, that he lied about being an inventor and that without his interference The Beatles might have stayed together for longer and produced more music.

The Master of the courts refused permission for the case to go ahead because, he said, there had not been sufficient publication in the UK to justify the time, expense and difficulty of a trial. The Master found that there had only been 27 hits on the story on the papers' websites, and only 177 hard copies had been published.

Mr Justice Eady in the High Court has said, though, that the evidence about how widely read the piece had been was contested and that the case should not have been blocked at that early stage. He said that even if there were only 27 hits on the story, a case could still be made.

"It was inappropriate for a finding of fact to be made on the scale of publication on the basis of incomplete evidence," said his ruling. "It is a matter which should be left to trial. Furthermore, and in any event, even if the publications were confined to the Defendant's figure, there was no basis for concluding that there was no real and substantial tort."

It is not enough for an allegedly defamed person to say that that they were defamed simply because an article has been published online in the UK. They must show that it was read and that, therefore, their reputation has been damaged.

Dow Jones, publisher of the Wall Street Journal, won a case in 2005 in the UK by successfully arguing that a particular article had only been seen five times in the UK and so to engage in a major libel case was an abuse of process.

Mr Justice Eady said, though, that the courts cannot simply invent a minimum number of readers which justifies a defamation action.

"What matters is whether there has been a real and substantial tort within the jurisdiction (or, at this stage, arguably so)," he said. "This cannot depend upon a numbers game, with the court fixing an arbitrary minimum according to the facts of the case."

Mr Justice Eady said that a small number of readers is enough on which to base an action, although the damages awardable will be smaller the smaller the readership is.

"The International Herald Tribune argues that ' … there is no necessity to put the Defendants to these costs when the simple answer appears to be that a few dozen people have accessed the article on the IHT website to this date'. A few dozen is enough to found a cause of action here, although the damages would be likely to be modest," he said.

The Master of the court had said that this would result in an imbalance between the damages awardable and the cost of the case, but Mr Justice Eady said that costs could be reduced by wise case management.

The ruling also dismissed accusations of 'forum shopping', where foreign litigants sue in the UK courts because of internet publication of an article, because the UK's libel laws are stricter than those in many countries.

Mr Justice Eady said that Mardas had sufficient UK roots to deflect that charge, but also said that courts were up to a point powerless against forum shopping.

"It may well be that in due course international agreement will be reached as to the appropriate way of resolving claims arising out of Internet publication. That is plainly desirable. For the time being, however, courts are obliged to apply the law as it stands," he said.

"English law permits him to claim whatever is appropriate compensation and vindication in respect of the smaller local publication here. The approach has long been to recognise that where a tort has been committed the appropriate forum will usually be that of the jurisdiction where it took place. What he cannot do is to claim damages here in respect of (say) publications in the United States," said the ruling.

See: The ruling

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