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

The claimant, 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.

Mr 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.

Mr 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”.

The main question in this application was 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.

Mr Justice Nicklin observed that the burden of demonstrating that England and Wales was clearly the most appropriate place lay with Mr Wright, and that the court’s task was an assessment of evidence, not an exercise of discretion. The court had to be satisfied that England and Wales was clearly the most appropriate jurisdiction where there had been multi-jurisdiction publication. It was not sufficient to demonstrate that England and Wales was an appropriate jurisdiction.

Further, Nicklin J said, s 9 did not list the factors that a court should consider. The only consideration to which express reference was made was the extent of publication in England and Wales compared to other jurisdictions. Therefore, the court had to assess the “global position” in terms of publication.

In addition, Nicklin J said, the Explanatory Notes made clear that the extent of publication in each jurisdiction was likely to be a weighty factor: the more extensive the publication in a jurisdiction, the greater the damage to reputation in that jurisdiction.

However, as stated in Ahuja v Politika Novine I Magazini DOO [2016] 1 WLR 1414, the extent of publication in different jurisdictions may have little bearing on where the claimant’s reputation mainly lies and on where that reputation has been most seriously damaged”.

Further, as stated in King v Grundon [2012] EWHC 2719 (QB), one well-directed arrow [may] hit the bull’s eye of reputation” and cause more damage than indiscriminate firing. Therefore, as well as assessing the extent of publication in the relevant jurisdictions, “…the Court must assess the amount of damage to the claimant’s reputation in England & Wales compared with elsewhere and the extent to which the publication was targeted at readership in England & Wales compared with elsewhere” (Ahuja).

As for the concept of “targeting”, Nicklin J noted that in King v Lewis [2005] EMLR 4, the Court of Appeal doubted the relevance of “targeting” in internet publication cases since the defendant had “targeted” “every jurisdiction where his text may be downloaded”.

However, Nicklin J said, “targeting” was still relevant. For example, the website of a UK newspaper will be accessible all over the globe, but the content may be “targeted” predominantly at a UK audience. For some websites or online publication, the fact that the content was available in other jurisdictions was just an incidental feature of the internet.

In Nicklin J’s view, the assessment under s 9(2) could be approached in two stages:

  1. assess the nature of the publication and its extent in each jurisdiction; and
  2. assess the evidence of harm to reputation in the jurisdictions in which there has been publication.

In any event, the assessment under s 9(2) was highly fact-specific and it was impossible to lay down hard rules. However, to the extent that the old forum non conveniens rules involved an assessment of the “balance of convenience”, that was not reflected in the test under s 9.

The evidence in this case showed that the most substantial publication was in the US and publication was not targeted at England and Wales. The publications were global, disseminated on global platforms.

Further, there was no evidence of harm to reputation in England and Wales. Mr Wright had a global reputation and, although he might be putting down roots in the UK, that did not displace his global reputation.

There was no suggestion that Mr Wright would not get a fair trail in any of the alternative jurisdictions. It might be more convenient to have the claim tried in England and Wales because he now lived in the UK, but that was a minor factor that carried little weight when assessed against the extent of publication and harm to reputation.

Therefore, Nicklin J was not satisfied that England and Wales was clearly the most appropriate place to bring the action. Consequently, the court had no jurisdiction and the action was struck out. (Craig Wright v Roger Ver [2019] EWHC 2094 (QB) (31 July 2019) — to read the judgment in full, click here).