Court of Appeal considers the law on jurisdiction in defamation claims under s 9 of the Defamation Act 2013

HomeInsightsCourt of Appeal considers the law on jurisdiction in defamation claims under s 9 of the Defamation Act 2013

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The claimant, Dr Craig Wright, was a computer scientist interested in cryptocurrencies such as Bitcoin. He was an Australian national, who had lived in the UK since December 2015.

The defendant, Roger Ver, was a bitcoin investor and commentator within the bitcoin and cryptocurrency industries. Mr Ver was born in the US and moved to Japan in 2005. Since 2014 he had been domiciled in, and a citizen of, St Kitts & Nevis.

Dr Wright alleged that he had been libelled in a YouTube video posted by Mr Ver, as well as in a tweet containing the video on Mr Ver’s Twitter account and in a reply by a third party to that tweet. Dr Wright said that the defamatory innuendo meaning of the publications was: “The Claimant had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people, who developed bitcoin.”

In an application before the High Court in July 2019, Mr Justice Nicklin had to consider whether the court had jurisdiction under s 9 of the Defamation Act 2013, which provides:

“(1) This section applies to an action for defamation against a person who is not domiciled—

(a) in the United Kingdom;

(b) in another Member State; or

(c) in a state which is for the time being a contracting party to the Lugano Convention.

(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.”

Since Mr Ver was not domiciled in any of the places identified in s 9(1), the court would only have jurisdiction if, of all the places that the statements complained were published, England and Wales was clearly the most appropriate place in which to bring the claim. Nicklin J found that England and Wales was not clearly the most appropriate place and made a declaration that the court had no jurisdiction to hear the claim.

Dr Wright appealed on the grounds that the judge had taken the wrong approach to s 9 so that he did not make relevant findings about the appropriate place to bring the libel claim, and that if he had done so, England and Wales would be shown to be clearly the most appropriate place to bring the claim.

Giving the lead judgment in the Court of Appeal, Lord Justice Dingemans said that an assessment of s 9 requires the court to assess a number of different factors, including:

  • the best evidence available to show all the “places”, which in this context means jurisdictions, in which the relevant statement has been published;
  • the number of times the statement has been published in each jurisdiction;
  • the level of damage to the claimant’s reputation in England and Wales compared with elsewhere, a point on which the court can draw inferences based on the admitted evidence;
  • whether a publication is targeted at particular readers in England and Wales, as this might cause the most serious harm to reputation in England and Wales;
  • the availability of fair judicial processes in the other jurisdictions in which publication occurred; and
  • the location of likely witnesses.

Dingemans LJ stressed that this list of factors was not exhaustive because the relevant, multifactorial, statutory question was whether it could be shown that England and Wales is clearly the most appropriate jurisdiction in which to bring the action. This will be fact-specific, he said, but it is likely to require the court to make the best assessment that it can, on the evidence, as to whether any competing jurisdiction might in fact be an appropriate place to bring the claim.

Dingemans LJ noted that the judge had stated that s 9 should be approached in two stages: (i) the nature and extent of publication in each jurisdiction; and (ii) the evidence of harm in each jurisdiction. Dingemans LJ agreed that these are important relevant factors to consider, and in many cases may be the decisive factors. However, he said that setting out a two-stage test is “unlikely to assist in many cases” because it is an intermediate step to be performed by the court, and adds a gloss to the statutory question. It is therefore likely to add to the complexity of the court’s task. Further, it was not clear how the first two stages related to other relevant factors.

The judge had noted the greater number of publications in the US and had found that Dr Wright had a global reputation, but had failed to consider whether the US might in fact be the appropriate jurisdiction in which to bring the claim. Therefore, Dingemans LJ said, it was for the Court of Appeal to consider the statutory question for itself.

Dingemans LJ held that England and Wales was not the most appropriate jurisdiction for the following reasons:

  1. the evidence showed that there were about four times as many publications of the YouTube channel and tweets in the US as there were in the UK. This strongly suggested that a state in the US was likely to be the most appropriate jurisdiction in which to bring the claim;
  2. the judge’s finding that Dr Wright had a global reputation was clearly established by the evidence. Therefore, Dr Wright’s reputation was just as likely to be affected in other jurisdictions where publication took place, as it was in England and Wales;
  3. the evidence about other internet, newspaper and periodical publications showed that the question of whether Dr Wright was the inventor of Bitcoin was a global issue. Further, Dr Wright had registered himself as the copyright owner of the 2008 academic paper in the US Copyright Registry. Dr Wright had also issued a press release about this stating that the registration by the US Copyright Office recognised Dr Wright as the author of the 2008 paper and code. All of this related to a global reputation, in part relying on a specific action taken in the US, rather than any specific reputation in England and Wales;
  4. although Dr Wright gave evidence that the majority of his business peers were in the UK, he provided no details about these persons. On the other hand, the evidence showed that Dr Wright’s most important business relationships were and are in the US;
  5. although Dr Wright gave evidence that he was employed by nChain Ltd, a UK company, the evidence showed that nChain described itself as the global leader in advisory, research and development blockchain technologies and that nChain was a group of companies based in more than one jurisdiction;
  6. the judge had been right to accept Dr Wright’s evidence about his links to this jurisdiction, but this evidence was not inconsistent with Dr Wright’s global reputation, or specific links to the US. It was, as the judge had been right to say, a segment of his global reputation;
  7. the evidence showed that the courts in the US would have jurisdiction over the claim against Mr Ver, who had consented to the jurisdiction of the US courts. There was no evidence suggesting that any state in the US that would accept jurisdiction would not be able to provide Dr Wright with an adequate remedy for all the publications in the US, nor that he would have difficulties in obtaining access to justice in any state in the US; and
  8. there was no evidence that any relevant witness would have difficulty in providing evidence in any state in the US, but it might fairly be noted that neither party had provided details of relevant witnesses or made any effort on the evidence to identify what were the likely issues.

In all these circumstances, Dingemans LJ held that, on the evidence, a state in the US that would accept jurisdiction over this claim, which included California, was the most appropriate jurisdiction in which to bring the claim. Therefore, in agreement with the High Court, but for different reasons, Dingemans LJ concluded that England and Wales was not clearly the most appropriate place to bring the action. The appeal was dismissed. (Craig Wright v Roger Ver [2020] EWCA Civ 672 (29 May 2020) — to read the judgment in full, click here).