‘Heartbeat 1’, Susan Aldworth 2010

Since we coined the term ‘aphantasia’ in a brief scientific paper last year (Cortex 2015; 73:378-380: Read manuscript), there has been a remarkable surge of interest in the extremes of the human experience of visual imagery: both in those of us who lack the ability to visualise at will – with aphantasia – and in those with superabundant imagery – hyperphantasia. When asked to visualise a sunset, for example, people with aphantasia are unable to conjure any kind of image to mind, and will often have assumed that terms like the ‘mind’s eye’ are purely metaphorical. At the other end of the spectrum, people with hyperphantasia describe imagery so vivid that they can find it difficult to be sure whether an image was perceived or imagined. Coverage in the press, on TV, radio and the web throughout the world, including the BBC’s on-line vividness questionnaire, has led to over 10,000 contacts from interested individuals, most of them falling at one or other extreme of the vividness spectrum. We are tremendously grateful to the several thousand people who have by now completed and returned our questionnaires: these paint a much more detailed picture of these phenomena than we could provide before. Thank you so much for doing this!

The final analysis of this wealth of data will take a while, but some patterns have already emerged. A first reaction, which came as a welcome surprise, was gratitude: people with aphantasia, in particular, were glad to have a handy term to describe this subtle but distinctive feature of their experience. Many participants have told us how they found it hard to explain this to others: they often met with disbelief. The new term seems to be useful.

Some sub-groups have come to light. The scientific literature already spoke of a link between low imagery vividness and prosopagnosia – difficulty, often lifelong, in recognising faces. This link is a recurring theme in the questionnaires. We were not too surprised by a second association: a small proportion of participants have described a diagnosis of autistic spectrum disorder (asd). Alterations in the ability to imagine have long been regarded as a key feature of asd, and visualisation is a key ingredient of imagination (though not an indispensable one, as we will see).  A third sub-group also makes good intuitive sense: many folk with aphantasia report that their autobiographical memory, for personal events like holidays and weddings, is less rich that that of their friends and relations: for most of us visualisation is a big part of recollection. But none of these associations is true for everyone: there are many shades of aphantasia.

These shades have some other expressions. Some people with aphantasia, probably the majority, dream visually: but others do not. Some can ‘imagine’ in other modalities, hearing with the mind’s ear for example, but others can’t. Does this make a nonsense of the notion of aphantasia? We think not. We know that the brain activity involved in visualisation is complex and ‘distributed’, involving a widespread network of brain areas. Given this complexity, it is not too surprising that visualisation can be disrupted in a wide variety of ways. In particular, it is understandable, in neurological terms, that dreaming and wakeful imagery can behave differently in aphantasia.

We are learning other fascinating things from our participants. While most people with aphantasia describe this as a lifelong characteristic, others have reported the loss of imagery, due to brain injury or to psychological factors: we are very keen to learn more about these. We also hope to learn much more about the large group of highly creative individuals who have contacted us: I had not anticipated so much pleasure from looking at the art of aphantasic painters or from reading the prose of aphantasic novelists. Visualisation is clearly not a prerequisite for creativity.

Much has been written and broadcast about aphantasia over the past year. Our website gives links to several of these outputs . My personal favourites include James Gallagher’s original BBC broadcast, two personal accounts written by highly creative people with aphantasia, Blake Ross’s Facebook post (A personal account by Blake Ross) and Dustin Grinnell’s article in New Scientist (Dustin Grinnell in New Scientist) and a recent radio portrait by Sarah Jane Hall (The Mind’s Eye – BBC Radio 3 ‘Between the Ears’ programme).

So far most of our knowledge of aphantasia has come from first person testimony. This is the right (and really the only) place to start the exploration of this topic, but we are keen to ‘triangulate’ our knowledge by correlating first person evidence from questionnaires with data from neuropsychological tests – of autobiographical memory or face recognition for example – and from brain imaging techniques. We have begun a pilot study with local participants who are within striking distance of Exeter. We hope to have some preliminary answers over the coming year. At present the project is relying heavily on the enthusiasm of a small group of academic colleagues and undergraduate interns who have kept the project on the road: thanks to you, also! We are applying for research funds that will enable us to extend this work. We are considering a crowd funding appeal – you may be hearing from us 🙂

We have one further plan: at our Eye’s Mind project conference in May this year, in addition to a lively group of imagery researchers, we had probably the largest ever gathering of people with aphantasia from around the world, from Finland to the States. There was enthusiasm for a meeting dedicated to aphantasia: we hope to organise this sometime next year.

This research depends entirely on the generosity of those who are sharing their experience and time. This blog is an opportunity to report back on recent progress, and to thank you for your contributions. We aim to write regular updates as the story develops.

‘There is no going back.’ These were the words of Lord Pannick, uttered before the High Court in response to the question whether the United Kingdom could rescind its notification to withdraw from the European Union once issued under Article 50 TEU (Santos and M v Secretary of State for Exiting The European Union, uncorrected transcripts, p. 17). The claimants and the Government appear to agree on this point and accept that the UK cannot reverse its notification of withdrawal.

It is easy to see why this position should be attractive to both parties. For the Government, it means that once the notification has been issued in accordance with the UK’s constitutional requirements, it would be shielded from any subsequent domestic legal challenge. For the claimants, the irreversibility of the withdrawal notification is of ‘vital importance’ (uncorrected transcripts, p. 14). It is this irreversibility which, in their submission, pre-empts the powers of Parliament if the Government were to issue the notification without first obtaining the Parliament’s authorisation to do so.

The significance of this point was not lost on the Lord Chief Justice. He declined an invitation by counsel to assume that the withdrawal notification was irreversible and insisted that it was ‘absolutely essential’ for the Court to decide whether it was irrevocable or not (uncorrected transcripts, p. 192). In response, Lord Pannick confirmed that it was his position, as a matter of law, that there is no power to revoke the notification.

Earlier, Lord Pannick illustrated his position with the following analogy (uncorrected transcripts, p. 19):

I say my case is very simple. My case is that notification is the pulling of the trigger. And once you have pulled the trigger, the consequence follows. The bullet hits the target. It hits the target on the date specified in Article 50(3). The triggering leads to the consequence, inevitably leads to the consequence, as a matter of law, that the treatise cease to apply and that has a dramatic impact in domestic law.

Unfortunately for Lord Pannick, the analogy does not withstand closer scrutiny.

The applicable rules of interpretation

Whether a withdrawal notification is reversible or not is a question that turns on the interpretation of Article 50 TEU. Since Article 50 TEU forms part of an international agreement, its interpretation is governed not by English law, but by the rules of international law. Of course, as is well known, the Court of Justice of the European Union adopts a teleological approach to the interpretation of the EU’s founding Treaties which differs from the general rule of treaty interpretation laid down in Article 31 of the Vienna Convention on the Law of Treaties (VCLT). In particular, the Court lays greater emphasis on the aims and objectives of European integration than Article 31 VCLT might warrant (see Gardiner, Treaty Interpretation, pp. 136–137).

Leaving aside the longstanding doctrinal debates about the autonomous nature of the EU legal order, the fact remains that the founding Treaties of the EU are instruments of international law. It is therefore perfectly appropriate for a domestic court to construe Article 50 TEU by applying the rules of interpretation set out in the VCLT. In fact, this seems even more appropriate in the light of the subject matter of Article 50 TEU. It is no coincidence that the German Federal Constitutional Court interpreted Article 50 TEU against the background of the relevant provisions of the VCLT in its judgment in the Lisbon case (para 330).

What, then, are the applicable rules of interpretation? According to Article 31(1) VCLT,

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Article 50(2) TEU stipulates that the Member State wishing to withdraw from the Union must notify the European Council of its intention. However, the text is silent as to whether a Member State subsequently may revoke its notification. In the absence of express terms, we have to consider whether an answer emerges from the text, context and the object and purpose of the treaty by implication.

The purpose of Article 50 TEU

According to Article 1 TEU,

By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called “the Union”, on which the Member States confer competences to attain objectives they have in common.

It is difficult to find a more succinct statement of the object and purpose of the TEU: the establishment of an organisation upon which the Member States confer certain competences to attain certain shared objectives. These objectives are set out in greater detail in Article 3 TEU, while the scope of the EU’s competences is defined in Articles 3–6 of the Treaty on the Functioning of the European Union (TFEU). Article 5 TEU declares that the Union must act within the limits of the competences conferred upon it by the Member States and that competences not conferred upon the Union remain with the Member States. In Declaration 18 made appended to the Lisbon Treaty, the Member States recall these points and add that it is for them to increase or reduce the competences conferred upon the Union.

What emerges from these provisions is that the Union’s competences are based on the consent of its Member States and that the authority to increase or reduce these competences (sometimes described as Kompetenz-Kompetenz) remains firmly within their own hands. Article 50 TEU takes the principles of consent and conferral to their logical conclusion and confirms the right of a Member State to withdraw from the Union. In the words of the German Federal Constitutional Court, the ‘right to withdraw underlines the Member States’ sovereignty… If a Member State can withdraw based on a decision made on its own responsibility, the process of European integration is not irreversible.’ (Lisbon case, para 329). Against this background, we may conclude that the purpose of Article 50 TEU is to confirm in express terms the Member States’ ability to withdraw from the EU and to lay down the procedures for doing so.

The arguments against revoking the withdrawal

In his submissions before the High Court, Lord Pannick relied on three arguments to suggest that the UK would not be able to revoke its withdrawal notification once issued (uncorrected transcripts, p. 16–17):

Article 50 is deliberately designed to avoid any such consequence. There is no mention of a power to withdraw. And the very possibility of a power to withdraw a notification would frustrate, again, Article 50(3), which sets out in the clearest possible terms, what the consequences are of giving the notification under Article 50(2).

It is convenient to consider these arguments in reverse order.

1. Frustrating the procedures

First, Lord Pannick suggests that revoking the withdrawal notification would frustrate the consequences attached to the notification by Article 50(3) TEU. According to that provision,

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Once notified, the withdrawal is inevitable, says Lord Pannick. That is the point of his bullet analogy: once fired, the bullet has to hit its target, either upon the entry into force of the withdrawal agreement, two years after the date of withdrawal notification or at the end of any extension period agreed between the UK and the European Council. There are two flaws with this reasoning. First, the completion of the procedures described in paragraphs (2) and (3) of Article 50 TEU is conditional upon the withdrawal notification. There is no logical reason why that withdrawal notification may not be revoked before those procedures are completed. To use Lord Pannick’s analogy, nothing prevents the UK from firing a blank round. Second, the procedures listed in Article 50(3) TEU need not reach their end point. Article 50(2) TEU imposes an obligation on the Union to negotiate and conclude an agreement with the withdrawing Member State. No corresponding duty is imposed on the withdrawing Member State itself. At first sight, it might seem reasonable to assume that such a duty must be implied. However, for the purposes of the withdrawal agreement, the withdrawing State is essentially treated as a ‘third country’ (cf Article 218(1) TFEU), as evidenced by the fact that pursuant to Article 50(4) TEU, the withdrawing State shall not participate in the discussions or decisions by the European Council or Council concerning the negotiation and conclusion of the withdrawal agreement. Consequently, it would be absurd if the withdrawing Member State were thought to be bound by the principle of sincere cooperation under Article 4(3) TEU in these matters. In any event, the terms of Article 50(3) TEU make clear that at most, the withdrawing Member State is under an obligation to negotiate, but not necessarily conclude, a withdrawal agreement with the EU (in other words, the duty is for a pactum de negotiando, not a pactum de contrahendo). This is so because Article 50(3) TEU envisages that the withdrawal agreement may fail to enter into force at all, which is precisely why it provides for the two-year time period as a fall-back solution. However, that two-year time period may be extended by the mutual agreement of the withdrawing Member State and the European Council. The extension is not subject to any conditions. Consequently, the two sides may agree to an indefinite extension of the two-year period if they so wish. To use the bullet analogy again, the target may keep on moving indefinitely and the bullet may never hit home.

Notifying an intention to withdraw from the Union does not necessarily mean that the procedures triggered thereby have to be completed. Nor do these procedures inevitably have to lead to the termination of the applicability of the Treaties to the withdrawing Member States.

2. No express power to revoke

Lord Pannick also relies on the fact that Article 50 TEU does not provide for the power to revoke the withdrawal notification in express terms. This argument is unconvincing. The competences of the EU depend on the consent of the Member States. Competences not conferred upon the EU remain with the Member States. Consequently, in so far as Article 50 TEU recognises the unilateral right of a Member State to withdraw its consent, that withdrawal can only be subject to those conditions which are expressly stipulated in Article 50 TEU. Put differently, the burden of proof is not on the withdrawing Member State to demonstrate that it has the legal capacity and authority to retract its withdrawal notification, but on the EU or its remaining Member States to show that it lacks that capacity.

At this point, it is once again necessary to recall that the Treaties are instruments of international law. As the European Court of Justice has acknowledged, the EU must respect international law in the exercise of its powers (Case C-286/90, Poulsen and Diva, para. 9). Pursuant to Article 68 VCLT, a notification to withdraw from a treaty in accordance with its provisions may be revoked ‘at any time’ before the notification takes effect. In the present case, this means that the UK would be able to revoke its withdrawal notification before the withdrawal agreement it may conclude with the Union enters into effect or before the two-year time period or the extension period agreed with the European Council runs out. The EU is not a party to the VCLT and as such it is not directly bound by Article 68 VCLT. Whether the rule forms part of customary international law, which would be binding on the EU as such, is subject to debate. However, it is worth noting that the International Law Commission, which drafted what later became Article 68 VCLT, took the view that ‘the right to revoke the notice is really implicit in the fact that it is not to become effective until a certain date’ (Draft Articles on the Law of Treaties with Commentaries, p. 264). This point applies with full force to Article 50 TEU.

State practice offers several examples of States revoking their decision to terminate their membership in an international organization, though the exact legal characterisation of some of these examples is open to discussion (see Wessel, You Can Check Out Any Time You Like, But Can You Really Leave?, p. 6). Nevertheless, the practice of the International Labour Organisation in particular suggests that the possibility to retract a withdrawal notice before it takes effect is accepted. It is also useful to point out that States may withdraw their intent to be bound by an international agreement, as the United States did in relation to the Rome Statute, or withdraw their application to become members of an international organisation, as Switzerland recently did in relation to the EU. Of course, one should be careful not to read too much into these examples, even by way of analogy. However, they do underline that States enjoy a wide measure of discretion to withdraw instruments and notifications they make in relation to treaty actions.

3. The design of Article 50 TEU

Finally, Lord Pannick argues that Article 50 TEU was deliberately designed to avoid the possibility that a Member State might revoke its withdrawal notice. There is no evidence to support this view. The preparatory work of the intergovernmental conference which drew up the Treaty of Lisbon is not in the public domain. However, Article 50 TEU reproduces verbatim, subject only to minor editorial changes, Article I-60 of the Treaty establishing a Constitution for Europe. The negotiating history of that provision establishes very clearly that the right to withdraw from the Union was intended to be unilateral. Amendments attempting to tie this right to substantive conditions or to the successful conclusion of a withdrawal agreement were rejected (see CONV 672/03, pp. 10–12). As a note from the Praesidium of the European Convention explained, ‘it was felt that such an agreement should not constitute a condition for withdrawal so as not to void the concept of voluntary withdrawal of its substance’ (CONV 648/03, p. 9). This desire was reflected in the very title of Article I-60, which read ‘Voluntary withdrawal from the Union’.

The significance of this negotiating history is that it fully confirms the interpretation and conclusions reached earlier. The unilateral nature of the right to withdraw means that it is for the United Kingdom to decide both when to notify the European Council of its intention to withdraw and whether or not to revoke that notification. This position may please neither the claimants nor the defendant, but this is where the law stands.

Aurel Sari is a Senior Lecturer in Law at the University of Exeter, specializing in public international law. His work focuses mainly on questions of operational law, including the law of armed conflict, the legal status of foreign armed forces and the application of human rights law in deployed operations. He is a Fellow of the Allied Rapid Reaction Corps.

(Suggested citation: A. Sari, ‘Biting the Bullet: Why the UK Is Free to Revoke Its Withdrawal Notification under Article 50 TEU’, U.K. Const. L. Blog (17th Oct 2016) (available at https://ukconstitutionallaw.org/))

João Florêncio, University of Exeter

A new exhibition, Abstract Expressionism, opens at London’s Royal Academy this weekend. It is the first major survey of the movement since 1959. Abstract expressionism is often considered the first artistic movement to shift the centre of Western art from Europe to the US, and more precisely New York. But what is it, and how did this happen?

Associated with a group of artists working in New York in the 1940s, abstract expressionism came to be known as the quintessential American and modern art movement. Heirs to the progressive abandonment of figurative and naturalist painting styles that had been taking place in Europe since the early 20th century, the painters associated with the movement came to be known for their innovative use of new synthetic industrial paints, large scale canvases, and the development of very individual abstract styles.

Some of the most easily identifiable include Franz Kline’s quick and simple brushstrokes, at times likened to Japanese calligraphy; the drips and rapid splatters of Jackson Pollock; Robert Motherwell’s large repeated ovals and rectangles; and Mark Rothko’s large blocks of colour.

Despite often being seen as “childish” painting that “anyone could do”, abstract expressionism has a history that is more interesting than we might suspect at first. Because the emergence of the movement in the 1940s and its internationalisation in the 1950s wasn’t only due to the work of its artists. It was also due to both the art criticism and political environments of its time. So much so that we cannot think abstract expressionism without considering the work of critics such as Clement Greenberg and the role of art as a cultural weapon during the Cold War.

A European story

Writing at the same time as the abstract expressionists were developing their signature styles, Greenberg became the critic that most famously endorsed the movement. He claimed it represented the most “advanced” form of Western art. To justify this, Greenberg looked at the work of older European artists such as Manet, Monet, Cézanne and Picasso, arguing that European painting had been progressively moving away from representations of the three-dimensional world outside. According to him, this was also accompanied by a progressive flattening of the pictorial space.

Greenberg argued that this showed an increasing concern with investigating the potential and limitations of the elements that belonged exclusively to the medium of painting: a flat canvas with specific dimensions (length and width) upon which paint is applied. All historic examples of paintings that give the impression of three-dimensional space on canvas, all painting that tries to mimic the world outside of it, were, for Greenberg, paintings that tried to conceal their true nature.

What is crucial here is that, by producing this narrative of European art, Greenberg was able to claim that, for the first time ever, the most “advanced” form of Western art was no longer being produced in Europe but instead in New York. For him, it was painters like Pollock, Motherwell, De Kooning, Rothko, Kline, and Newman that were now, thanks to the new abstract languages they were developing, carrying on the work that had begun with the European avant-gardes. European artists, he argued, had not been able to carry this to completion, due, in part, to the weight of tradition, something that America did not have to carry.

So it was in large part due to critics like Greenberg, but also collectors like Peggy Guggenheim, and curators like MoMA’s Alfred H Barr, that abstract expressionism eventually gained momentum among the art glitterati of New York in the 1950s, despite never being popular among the wider American public.

Cold War art

But there is also politics to consider. Abstraction had been allowed to thrive in part due to the earlier sponsorship of Franklin Roosevelt’s New Deal, which saw an incredible amount of government funds being used to directly employ artists and commission new public artworks in the aftermath of the Great Depression. Most of the works funded by that programme were American regionalist paintings and large social realist murals. But some of the funds were also used to support the early work of some of the artists whose career would eventually progress towards what came to be known as abstract expressionism.

But perhaps one of the most iconic contributors to the dissemination of the movement as the culmination of Western art history was the Cold War. In the 1950s, at the peak of the ferocious anti-Communist sentiment of the McCarthy era in the US, the agendas of institutions like MoMA in New York and critics like Greenberg converged with the political interests of the CIA. Such convergence led to a series of exhibitions that would tour Europe during the Cold War years. The most famous of those was MoMA’s The New American Painting, which came to Europe in 1958-59. This show was responsible for bringing abstract expressionism to all major European capitals, including West Berlin.

Whether or not these exhibitions were funded or facilitated by the CIA, as some have convincingly argued, they were certainly responsible for cementing the perception of America as the legitimate heir of European aesthetic and political values. Against a USSR perceived as totalitarian and oppressive, with state-sanctioned socialist realism coming across as kitsch and formulaic propaganda, abstract expressionism, with its variety of individual voices and painterly styles, would eventually become a symbol of the autonomy, liberty and creative freedom allegedly enjoyed by all in the West. These were values that, from then on, became manifest in the generalised perception of the US as the ultimate beacon of Western culture.

João Florêncio, Lecturer in History of Modern and Contemporary Art and Visual Culture, University of Exeter

This article was originally published on The Conversation. Read the original article.

Dr Timon Hughes-Davies, a lecturer in the Law School looks at the recent complaint between Melania Trump and The Daily Mail. 

This article first appeared in The Conversation. 

Timon Hughes-Davies, University of Exeter

Readers of the Daily Mail were recently treated to a fairly rare event: the paper published a retraction of a news story it had run about Melania Trump, the wife of the Republican presidential candidate and prospective first lady of the United States. The retraction related to a story published both in the newspaper and the Mail’s website, which repeated allegations from an unofficial biography of the third Mrs Trump.

These allegations – which are recited in the complaint and have been widely repeated on the internet – relate to her immigration status, the circumstances in which she met her husband and her employment when she first came to the United States. Given her husband’s position on illegal immigration, the first of these might have proven to be the most politically sensitive allegation.

The retraction followed the filing of a complaint, in a Maryland court, against the Daily Mail and another defendant – a blogger who made similar allegations. It appears that the complaint is only in respect of the article’s publication on the Daily Mail’s website, rather than in the print version. However, the retraction appeared online and in the paper.

Libel tourism

Such a claim, by a US citizen against a British publication, raises issues of jurisdiction and it is interesting that the complaint was filed in the US, rather than in the more claimant-friendly jurisdiction of England and Wales. While the Daily Mail is a British newspaper, its website has a significant international readership: the court papers refer to United States web traffic of 2m visitors per day.

But the Daily Mail’s article was most prominently published in England and Wales and it might have been reasonable for Trump to issue proceedings in the High Court. However, recent changes to both English and US law have significantly restricted the ability of claimants to start legal claims outside their own country of residence.

Until fairly recently, English courts were relatively relaxed about “forum shopping” or “libel tourism” in defamation. In cases where the publication took place outside the claimant’s own jurisdiction, English courts were easy to persuade that they should hear the claim. When Liberace was defamed by the Daily Mirror in 1956, he chose to sue in England and Wales – he was entitled to protect his considerable reputation in England. If the Daily Mirror had been available in the United States, then he might have chosen to sue in that country. To a large extent, the decision was up to the claimant.

However, there has never been an unrestricted right for non-residents of England and Wales to bring claims in English courts. In 1937, M. Kroch, a resident of France, who had been defamed in a Belgian newspaper, was refused permission to bring a claim by the Court of Appeal. The report does not explain why M. Kroch wished to sue in England, but it does record that he failed to establish any sort of reputation or connection within the jurisdiction, apart from staying in rented rooms while bringing his claim.

However, as long as the claimant had a reputation within the UK, and the libel had been published – in defamation terms, that the words had been read by a person other than the author or subject of the statement – the courts would grant permission for the case to proceed.

It is fair to say that the bar was very low, both in terms of the claimant’s public profile within England and Wales and the extent to which the statement was published. In the 2005 case of Khalid Salim Bin Mahfouz and others vs Dr Rachel Ehrenfeld, the Saudi businessman sued Ehrenfeld, an American author, for alleging that he had helped to fund terrorism. While the claimant had some connection with England and Wales, Ehrenfeld had none – and the book in question was not published in the UK. However, the first chapter was available online and 23 copies had been sold, via the internet, to buyers in England. This was a sufficient connection with England and Wales for the High Court to allow the claim to proceed. The court found for the plaintiff.

Protecting free speech

The Ehrenfeld case, and other high-profile claims, provoked a strong reaction in the United States – the state of New York enacted the Libel Terrorism Protection Act in 2008 and, in 2010, Congress followed suit with the Securing the Protection of our Enduring and Established Cultural Heritage (SPEECH) Act.

Both these acts prevent American courts from enforcing English (and other jurisdictions’) libel judgments, unless the foreign court provides at least the same level of protection to free speech as American courts. It should be noted that, by treaty or as a matter of international comity, courts will generally enforce international judgments.

On the British side of the pond, the Defamation Act 2013 also tackled the issue of libel tourism – now, where the publisher is not a resident of the UK or other Lugano Convention countries, the court has to be satisfied that England and Wales is “clearly the most appropriate place in which to bring an action”. However, this would not necessarily prevent a non-resident, such as Mrs Trump, from bringing a claim in respect of a publication within England and Wales.

Given the context of the current presidential election campaign and the importance of Melania Trump’s reputation as reflecting on her husband, it is how this will play out with American voters that is important – so it is the coverage in America and the chance to answer those allegations to the American public that matters most. Given this, it would have been difficult to argue that England was the most appropriate place to take action.

Timon Hughes-Davies, Lecturer in Law, University of Exeter

This article was originally published on The Conversation. Read the original article.