Monaco issues new jurisdictional threshold on cross-border defamation cases

In a series of legal battles, Monegasque courts tackled a defamation case that underscores the complexities of jurisdiction in cross-border disputes. The case, brought by a foreign businessman against a foreign media service, revolved around articles published on a website, allegedly defaming the businessman by linking him to the Russian government and Kremlin. 

CMS Monaco Criminal Law team contributed to the emergence of a new jurisdictional criterion for defamation, based on the notion of territorial connection.

The plaintiff, a foreign businessman with several passports and residency in the Principality of Monaco, filed a direct summons against our client, the Finish national news media, YLEISRADIO OY, and its director of publication, to appear before the Monegasque Correctional Tribunal for having published on its website two articles in English and two articles in Finnish on the financing and ownership structure of the Helsinki Shipyard.

The articles indicated that the plaintiff, via a foreign company, was the main shareholder of the shipyard and is reported to have close links to the Russian Federation and the Kremlin. The plaintiff argued that, within the geopolitical context, such comments are defamatory and requested damages, in addition to the removal of the articles from the website.

Monegasque law allows for direct private prosecution of defamation claims, without the need for investigations, and has certain unfavourable procedural provisions for international defendants. At the time, Monaco courts accepted universal jurisdiction over public defamation cases on the internet.  

By the time the Monegasque summons was served in Finland on YLESIRADIO OY, the deadline for the admissibility of any evidence of truthfulness was about to expire, and our CMS team worked around the clock to carry out factual investigations in four languages. The result was a defence brief that included the following:

• The incompetence of the Monegasque courts;
• The truthfulness of the disputed comments;
• The non-defamatory nature of the disputed comments; and
• The good faith of YLEISRADIO OY’s journalists.

To challenge the issue of Monegasque jurisdiction, CMS elaborated arguments based on "forum shopping" and on the "freedom of expression in a democratic society".

In a context where established case-law at the time held that Monegasque courts had universal jurisdiction in defamation cases where the Internet publication was accessible from Monaco, the CMS team was forced to debate the merits of the defamatory nature of the disputed articles.

Ultimately, our team convinced the Correctional Tribunal to overturn the established jurisprudence, which stated in its ruling:

"Although it has been ruled that acts of public defamation are deemed to have been committed in any place where the offending statements were received, when said statements were disseminated via the internet, strict conditions must be applied to this jurisdiction, which cannot be universal.

In fact, although they may have been accessible from the Principality of Monaco, the disputed writings must have been intended for the Monegasque population in particular. […]

Thus, even if the publication of these articles on the internet made them accessible to the Monegasque public, they were in no way written or distributed for their attention or information, so that in the absence of any other criterion of connection to the Principality of Monaco, such as the Monegasque nationality of a party to the criminal proceedings, as provided for in certain cases by the Code of Criminal Procedure, the criminal court must declare itself incompetent."

On appeal, the plaintiff argued  that:

• in the context of the Principality of Monaco, where citizens have historically been in minority, the "Monegasque population" includes foreigners who have Monegasque residency: and
• many Monegasque residents speak English or work in the maritime industry and could have been interested in reading the Helsinki Shipyard articles.

The plaintiff also argued that the statements disparaged his reputation among people working in the Monegasque maritime industry with or for him. Information gathered by CMS’s criminal investigation team from open and closed sources refuted these allegations.

The Court of Appeal confirmed the first instance decision, reiterating that the articles were not directed at the Monegasque public and thus did not fall under Monaco's jurisdiction.

The plaintiff appealed before the Court of Revision, arguing that the lower courts violated article 6§1 of the European Convention of Human Rights and Monegasque criminal procedure and freedom of expression laws.

The Court of Revision upheld the decisions of the lower courts and clarified that the threshold test on jurisdiction should consist of whether the act of publication can be linked to the territory of the Principality. The "link" needs to be found in the comments themselves or in the way they were published. In a context where the population of most of the world's major cities is now cosmopolitan, the "target audience" can only be an indication of the existence of such link, the real criterion being the connection to the territory itself.

The high court rejected the plaintiff’s arguments that the articles' accessibility in Monaco and the plaintiff’s residency were sufficient to establish jurisdiction. It ruled that the mere Monegasque residency (as opposed to nationality) of the alleged victim or perpetrator is insufficient to give jurisdiction to the Monegasque courts.

By discouraging "forum shopping" practices and ensuring that jurisdiction is based on a genuine connection to the territory, the Monegasque courts have confirmed the fundamental principle of freedom of expression.