MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE NICKLIN
Between :
Harry Stedman | Claimant |
- and - | |
(1) SYZTMZ (2) Medium Rare NV/TGP Europe Limited (3) Kick Streaming Pty Limited | Defendants |
- and - | |
Medium Rare NV | Applicant |
The Claimant appeared in person
The First Defendant appeared in person
Richard Munden (instructed by Pinsent Masons LLP) for the Applicant and Third Defendant
The Second Defendant did not appear and was not represented
Hearing dates: 21 July 2025 and 17 November 2025
Approved Judgment
Mr Justice Nicklin :
The Claimant has brought a claim, principally for libel (but he has other complaints), against the three Defendants. The claim arises from streams posted by the First Defendant on an online platform, Kick, operated by the Third Defendant, between 22 June 2024 and 12 December 2024. The Claimant contends that the Second Defendant is also responsible for the First Defendant’s streams.
A: The parties
The Claimant lives in the UK. In his Particulars of Claim, he describes himself as a social media manager. In that role, he managed the First Defendant’s Instagram account from September 2022 to November 2023.
As originally issued, the Defendants were identified in the Claim Form exactly as they appear in the title to this judgment.
The First Defendant was sued under a professional online name, with only an email address provided for service. He is an online casino streamer affiliated with the Applicant with whom he has a commercial arrangement. He streams on the Kick platform, operated by the Third Defendant.
The Second Defendant was sued as an apparent composite entity. Its address for service was given as the Netherlands. As I shall explain below, the Second Defendant (in this composite form) is a company registered in England & Wales, incorporated on 3 April 2024, but it appears to have nothing to do with this dispute.
The Applicant, Medium Rare NV, is a company domiciled in Curaçao in the Dutch Caribbean (“Medium Rare NV”). It operates Stake (stake.com), an online cryptocurrency casino. Stake.com is geo-blocked to internet users in the United Kingdom, generally making it unavailable in this jurisdiction. When he issued the Claim Form, the Claimant believed that Stake was operated by the Second Defendant. He now recognises that this was incorrect, and one of the applications before the Court is by the Claimant for permission to correct the name of the Second Defendant and replace it with the Applicant as the correct corporate entity.
Third Defendant’s address for service was given at an address in Sydney, Australia. The Third Defendant operates a livestreaming platform at kick.com. Kick allows users to livestream their own content. The platform also enables other users to post comments on livestreams, via a chat function, which comments will then appear on screen as part of the livestream (often only for a short period as further comments replace them). Some streams will remain available as video-on-demand for a period of up to 30 days. Anyone can set up a Kick account and start livestreaming.
B: The Claim and its background
From September 2022 until the end of November 2023, the Claimant was engaged by the First Defendant as his social media manager. In this role, the Claimant was paid £1,000 per month by the First Defendant. The arrangement ended around 2 December 2023, when the First Defendant terminated the monthly retainer. He paid the Claimant £2,000 as an ex gratia payment and suggested that he might be able to find occasional work for the Claimant which would be remunerated on a “pay per case basis”.
It appears that, despite the termination of the retainer, the Claimant continued to receive monthly payments of £1,000. The First Defendant contends that these post-termination payments were made in error. The Claimant did not notify the First Defendant that he was continuing to receive monthly payments. Matters came to a head in June 2024. On 12 June 2024, the First Defendant sent a message to the Claimant noting, “it appears we have been paying you for over 6 months now for obviously doing nothing and you have said nothing and been claiming the money…” The First Defendant said that he was investigating the payments but expressed his disappointment if it turned out that the Claimant had taken the money.
The Claimant responded to the First Claimant’s message some 45 minutes later:
“I wasn’t sure who to contact about this… I was receiving payments but had not point of contact. I am happy to repay the money. I just need to know the amount I owe and where to send it. If I recall correctly, [name] used to handle my payments. Then, they delegate this task to someone else. Eventually, I was cut off but continued to receive payments without knowing who to contact. He hasn’t responded to my messages for a while, and you have clearly been unavailable. Please understand that I am not trying to be dishonest. I genuinely want to resolve this and pay back the money I received in error. Additionally, I believed it might have been a retainer because you mentioned that there may potentially be alternative roles with either the stream or GimmeBux for me to potentially take on…”
Over the next couple of days, the Claimant’s attitude to the apparent overpayment apparently changed, and he sent a further message to the First Claimant on 14 June 2024:
“I hope this message finds you well. I am writing to follow up on my previous correspondence regarding the payments I have received and to clarify my understanding of the situation.
Since our separation in November 2023, I have continued to receive payments. Based on our discussions at that time, I presumed these payments were intended as a retainer or support until a new role was secured. You mentioned the possibility of alternative roles with either your stream or GimmeBux, which led me to believe the payments were part of an interim arrangement until such roles materialized. Furthermore, you expressed that the new social media manager you hired was on a three-month trial, which further supported my belief that the payments were intended as a retainer until my potential involvement could be reassessed.
Given this context, I have relied on these payments for essential living expenses, operating under the reasonable belief that they were intended as ongoing support until a new role was found. This reliance was based on your previous assurances and the continued payments.
To ensure we handle this situation fairly and correctly, here are key legal principles that have influenced my understanding:
1. Implied Contract: The ongoing payments and your assurances about finding a new role suggested an implied agreement for continued support.
2. Promissory Estoppel: I relied on your assurances to my detriment, expecting ongoing support based on our discussions.
3. Employment Rights Act 1996, Section 13: Any abrupt cessation of payments could be considered an unlawful deduction without proper notice.
Given my reliance on these payments and the understanding that they were intended to support me until a new role was found, I do not believe I am legally obligated to repay the money. Abruptly stopping the payments without notice would cause significant financial hardship and is contrary to the principles of fairness and good faith.
Please understand that I am not trying to be dishonest or avoid responsibility. I have always acted in good faith, based on our previous conversations and the continued payments. However, the lack of clear communication has made it challenging to address this issue appropriately.
I await your prompt response so we can resolve this matter fairly and move forward.”
The First Defendant responded on 15 June 2024:
“Wow. We going the legal route? All good. Any further discussion can be handled through my lawyer and stream.”
The Claimant replied, within 13 minutes:
“I apologise if my previous message came across as overly legalistic; that was not my intention. I merely wanted to explain my understanding of the situation and the context in which I have been operating.
To clarify, my main goal is to resolve this matter amicably and in a manner that reflects the good faith in which I have always acted. Based on our conversations when we parted ways, I genuinely believed that the payments I continued to receive were intended as support until a new role was found for me. Given the continued payments and the assurance of potential roles with your stream or GimmeBux, I understood this as an interim arrangement.
I am not trying to avoid responsibility or create conflict. My intention is to ensure we are/were on the same page and to understand your perspective on this issue.
I hope we can continue to communicate directly and find a resolution without the need for legal proceedings…
However, if you clearly do not wish to work amicably with one another to resolve this then that is entirely up to you.”
And added, by a further message shortly afterwards:
“My intention is to ensure we are on the same page and to understand your perspective on this issue. If it turns out that the payments were made in error and there is an amount I need to repay, I am willing to discuss how we can resolve this in a way that is fair and manageable for both of us.”
The First Defendant responded, that same day:
“Nah its ok – I’ll get advice from chat about this and make my decision then – Im going to sleep now as im streaming when i wake up - Very disappointed in this for so many reason i cant even begin to list but it is what it is.”
Messages continued to be exchanged between the Claimant and the First Defendant. The Defendant repeated, on 22 June 2024, that he would “let chat decide what [he] should do”.
On 22 June 2024, the First Defendant livestreamed on Kick (“the First Stream”). The broadcast lasted for some 40 minutes. The Claimant considers that, in the First Stream, the First Defendant defamed him. He messaged the First Defendant on 23 June 2024 saying, “the 20/25 minutes I watched … just appeared to be defaming my character rather than productively discussing anything with chat”. The First Defendant responded, within a matter of minutes: “Defamation of character is defined as a false statement of fact that causes the victim some type of harm. I am happy to hear all the false things I claimed – I only said anything as backed up by fact”.
On 3 July 2024, the Claimant raised a complaint with the Third Defendant about the First Stream (which continued to be available on-demand). In response to a request that the Claimant should provide further details of his complaint, the Claimant provided a link to the 22 June 2024 stream and gave a time code by way of identification of the matters about which he was concerned.
On 19 July 2024, the Claimant sent a further letter to the Third Defendant asking that the “defamatory stream” be removed from the platform. Further correspondence was sent by the Claimant later in July 2024 and in August 2024. In none of this correspondence did the Claimant identify the subject of his complaint beyond the time code had had provided.
The Claim Form was issued on 3 September 2024. It referred to unspecified defamatory statements. The Claimant named the First Defendant in the Claim Form by a pseudonym. A Claim Form is required to provide the full name of a party. If a claimant does not know the name of the party s/he wants to sue (or if the name of that party is sought to be anonymised), then s/he must apply to the Court for an order dispensing with the requirement to provide the party’s full name on the Claim Form.
C: Procedural steps following issue
On 24 September 2024, Master Sullivan, made an order staying the claim on the basis that it disclosed no reasonable grounds for bringing the claim and/or was an abuse of process. The Master directed that the Claimant could apply to lift the stay with by filing draft Particulars of Claim that complied with CPR Part 16 and CPR PD53B in specific respects.
On 10 October 2024, the Claimant made an application (1) for permission to serve the Claim Form out of the jurisdiction and by email; and (2) to lift the stay.
On 21 November 2024, the Master rejected an application by the Claimant to lift the stay. Without a hearing, she continued the stay and reiterated that the Claimant needed to provide compliant Particulars of Claim before the claim could proceed. One of the issues that concerned the Master – as recorded in her order – was that it was not clear from the Claimant’s statement of case upon which defamatory statements published by the Defendants the Claimant was relying. As to the application for permission to serve the Claim Form out of the jurisdiction, the Master noted that it was not clear where the First Defendant was believed to be located.
On 6 February 2025, however, the Master finally lifted the stay and granted the Claimant permission to serve the claim on the First Defendant out of the jurisdiction. The Master noted that the Claimant did not know where the First Defendant resided, but the evidence suggested that he may reside in New Zealand or the United Arab Emirates. She gave permission to serve the First Defendant by email. The Order gave the First Defendant was given 26 days to file an Acknowledgment of Service.
As to the Second Defendant, the Master noted that it appeared that the Second Defendant, as named on the Claim Form, was a company registered in England & Wales. As such, permission to serve the Claim Form out of the jurisdiction was not required. The Master gave permission for the Second Defendant to be served by email, to email addresses at stake.com. It now appears common ground that these email addresses are not connected with the Second Defendant. At the time, the Claimant believed that the Second Defendant was connected with the Third Defendant, and provided email addresses accordingly.
On 10 March 2025, Medium Rare NV, issued an Application Notice seeking an orders (a) pursuant to CPR 11.6, declaring that the Court had no jurisdiction to hear the claim brought against the Second Defendant; and (b) setting aside Master Sullivan’s order granted permission to serve the Claim Form on the Second Defendant under CPR 6.37. The grounds for the application, as stated in the Application Notice, were that Medium Rare NV is a corporate entity registered in Curaçao which does not own or operate the English-registered company named as the Second Defendant in the Claim Form. This English company, it was stated, had no affiliation with Medium Rare NV Reliance was placed on s.10 Defamation Act 2013 to challenge jurisdiction over Medium Rare NV on the grounds that it was not the author, editor or publisher of the statements complained of by the Claimant in the claim.
On 26 March 2025, the Claimant issued an Application Notice seeking permission to amend the Claim Form and Particulars of Claim (“the Amendment Application”).
On 28 March 2025, the Third Defendant issued an Application Notice seeking a declaration that the Court has no jurisdiction, or should not exercise any jurisdiction which it may have, over the Claimant’s claim and that the order of 6 February 2025 granting permission to serve the Claim Form on the Third Defendant out of the jurisdiction be set aside (“the Jurisdiction Application”).
On 15 April 2025, the Claimant filed with the Court a request for default judgment following the alleged failure of the First Defendant to file an Acknowledgement of Service.
On 17 April 2025, the Claimant issued an Application Notice seeking an interim injunction against the First Defendant (“the Interim Injunction Application”)
The First Defendant filed an Acknowledgement of Service, dated 18 April 2025. He indicated an intention to defend the claim, provided an address for service in UAE and gave his real name. It appears that the Acknowledgement of Service was filed outside the period allowed by the Order of Master Sullivan on 6 February 2025.
On 30 April 2025, the various applications and the Claimant’s request for default judgment were referred to me for directions. Without a hearing, I made an order:
listing the Interim Injunction Application, Amendment Application and the Jurisdiction Application at a 2-day hearing before a Judge of the Media & Communications List, and giving directions for the service of evidence in respect of those applications;
directing the Claimant to make an Application to amend the Claim Form and Particulars of Claim to provide the proper name (not pseudonym) of the First Defendant; and
refusing the Claimant’s request for default judgment against the First Defendant on the grounds that, by the time the request came to be considered, the conditions for the grant of default judgment were not met; the First Defendant had, by that date, filed an Acknowledgement of Service.
Although the Order of 30 April 2025 had directed the Claimant to issue an Application to amend the Claim Form to provide the full name of the First Defendant, which he duly did on 6 May 2025, the Claimant issued three further Applications:
by Application Notice dated 5 May 2025 seeking, without a hearing, judgment in default against the First Defendant under CPR Part 12 for failing to file an Acknowledgement of Service within the time prescribed, or in the alternative an order striking out the First Defendant’s Acknowledgement of Service on the basis that it was filed late and not served on the Claimant and no application for relief from sanction having been made (“the Default Judgment Application”);
by Application Notice dated 6 May 2025 seeking permission to amend the name of the Second Defendant to “Medium Rare N.V”); and
by Application Notice dated 8 May 2025 seeking to withdraw the Interim Injunction Application
Separately, on 24 April 2025, the First Defendant had issued an Application Notice seeking (a) relief from sanction for late filing of his Acknowledgement of Service; and (b) an order anonymising him in the claim. I was not aware of this further Application Notice when I made the Order of 24 April 2025.
On 5 May 2025, the First Defendant filed a Defence and Counterclaim. In summary, he denied liability for defamation. He also denied any claim in harassment. By way of counterclaim, the First Defendant has brought a claim against the Claimant for malicious prosecution.
On 20 May 2025, I made a further order, without a hearing:
Although noting that such an order was not strictly required, I allowed the Claimant to withdraw the interim injunction application.
I granted the First Defendant’s relief from sanction application, and extended the period for filing his Acknowledgement of Service.
I refused the Default Judgment Application as totally without merit.
I required that if the Claimant wanted to issue any further applications before the 2-day hearing fixed for 21 July 2025 (“the July Hearing”), he must first obtain the Court’s permission.
I directed that:
the further amendment application; and
the First Defendant’s anonymity application;
would be dealt with at the July Hearing; and
I granted an interim order anonymising the First Defendant pending resolution of the Anonymity Application.
The order provided my reasons for refusing the Default Judgment Application:
“This was a hopeless application which should not have been made by the Claimant. The conditions for the grant of default judgment (whether in response to a request or application) include that “the defendant has not filed an acknowledgment of service” (CPR 12.12(6)(b)). As at the date of the Default Judgment Application, the Claimant knew that the First Defendant had filed an Acknowledgment of Service. Therefore, the grounds for default judgment could not be made out. The Application is not improved by recasting it, in the alternative, as an application to strike out the Acknowledgement of Service. The Court operates to deal with cases justly. Although deadlines are important, and the Acknowledgement of Service was filed late by the First Defendant, as he now recognises, it would be utterly disproportionate to grant a windfall judgment in default. I had already refused to grant default judgment after the Claimant’s request. The Default Judgment Application seeks to overturn that decision by a different route. This application was totally without merit, and I have recorded that fact.
If the Claimant makes another application that the Court finds to be totally without merit, the Court will consider whether a Civil Restraint Order should be imposed on the Claimant. The Claimant has the benefit of fee remission. That means that he does not have to pay the fee that would otherwise be payable when issuing an Application Notice. That important financial discipline, which would apply to other litigants who were having to pay their own way, is therefore absent. Although the Claimant has not had to pay for the proliferation of Applications that he has issued, this exorbitant approach to litigation depletes the Court’s resources and those of opposing parties.
The parties duly exchanged evidence in accordance with the directions I gave
D: Matters to be resolved at the July Hearing
At the July Hearing, the following applications were before the Court:
the application by the Claimant to amend to plead the First Defendant’s proper name and the cross-application by the First Defendant for anonymity (or pseudonymity);
the application by Medium Rare NV to set aside the Order of Master Sullivan of 6 February 2025 apparently permitting service upon it (“Medium Rare NV’s Jurisdiction Application”), because:
it is not the Second Defendant (nor registered in England and Wales); and/or
the Court has no jurisdiction under s.10, Defamation Act 2013; and/or
the claim that it is liable for the statements complained of has no real prospects of success.
the related application by the Claimant to amend the name of the Second Defendant to Medium Rare NV (resisted by Medium Rare NV on the same grounds as the Medium Rare NV Jurisdiction Application);
the application by the Third Defendant to set aside the Order of Master Sullivan permitting service upon it (“Jurisdiction Application”), relying on:
s.10 of the Defamation Act 2013; and/or that
the Third Defendant is not a publisher at common law of the statements complained of; and/or that
it has clear defences under s.5 of the Defamation Act 2013 and/or Regulation 19 of the E-Commerce Regulations; and/or that
the statements are not defamatory of the Claimant.
E: Legal Principles
Anonymity
Anonymity/pseudonymity applications – the effect of which is to withhold the name of a party in court proceedings (or otherwise restricts the publication of what would be the normally reportable details of a case) - are a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large: JIH -v- News Group Newspapers Ltd [2011] 1 WLR 1645 [21]; In re Guardian and Media Ltd [2010] 2 AC 697 [63].
Derogations from, or restriction upon, open justice is exceptional and must be based on necessity. Restrictions on the public’s right to attend court proceedings, and the corresponding ability to report them, must be shown, by “clear and cogent evidence” to fulfil a legitimate aim, be necessary and proportionate: R (Marandi) -v- Westminster Magistrates Court [2023] 2 Cr App R 15 [16]; R -v- Sarker [2018] 1 WLR 6023 [29]; JIH [21].
The grant of derogations from open justice is not a question of discretion. It is a matter of obligation, and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: M -v- W [2010] EWHC 2457 (QB) [34]; Practice Guidance (Interim Non-Disclosure Orders) [2013] 1 WLR 1003 [11].
Jurisdiction
Generally
I take the following principles from Soriano -v- Forensic News LLC [2022] QB 533 [11]-[12]:
The Court can only give permission to serve a Claim Form on a defendant outside the jurisdiction if it is satisfied of three conditions:
there is a good arguable case that the claim is of a kind that falls within one of the “gateways” set out in CPR Practice Direction 6B (“the Gateway Requirement”);
the claimant has a real prospect of success on the claim (“the Merits Test”); and
England and Wales is the proper place in which to bring the claim under CPR 6.37(3) (“the Forum Test”).
the burden of satisfying the court of these conditions is always on the claimant, even on an application to set aside.
The Gateway Requirement and Merits Tests are to be assessed on the basis of the claimant’s pleaded case: Okpabi -v- Royal Dutch Shell [2021] WLR 1294 [103]-[105].
Liability for publication in defamation
I take as a general summary what I said in Monir -v- Wood [2018] EWHC 3525 (QB) [135].
“(i) The general rule can be stated as follows: under the general law of tort, everyone who knowingly takes part in the publication of a libel, or authorises or ratifies it, are jointly and severally liable (§8.10 Duncan & Neill on Defamation (4th edition, 2015);
(ii) However, for a person to be held liable as a primary publisher, s/he must be shown to have knowing involvement in the publication of the particular words. It is insufficient that a person merely plays a passive role in the process: Bunt -v- Tilley [2007] 1 WLR 1243 [22]-[23]”.
A person can become liable, at common law, as a primary publisher by ratifying the publication of a third party by authorising continued publication. Again, taking the summary from Monir -v- Wood [175]:
“The principle from Byrne -v- Deane[1937] 1 KB 818 can be stated, shortly, as follows: where a third party publishes material via a medium over which the defendant has control, the defendant can become liable for the publication if, in all the circumstances, it can be inferred that the defendant, from his failure to remove the defamatory material, acquiesced in or authorised the continued publication.
As for liability as a secondary publisher, see [176]:
“It is important to acknowledge that liability based upon authorisation of publication, albeit on an inferred basis, is as primary publisher. Liability as a secondary publisher is different. At common law, all of those who were actively involved in the publication and dissemination of defamatory material were liable, even if they did not know that what was published contained a libel. Those who were ignorant that the publication contained a libel were regarded as secondary publishers. The paradigm example was the distributor of a newspaper. Secondary publishers were afforded defences under common law, but these have now been placed on a statutory footing: principally s.1 Defamation Act 1996 and latterly ss.5 and 10 Defamation Act 2013: see discussion of Warby J in Richardson -v- Facebook, Google (UK) Limited [2015] EWHC 3154 (QB) [29]-[35]. There is occasionally confusion in the authorities in distinguishing clearly between (1) those who are not publishers at all under common law (e.g. ISPs that take an entirely passive role as conduit for a publication – see Bunt -v- Tilley; and Davison -v- Habeeb [2012] 3 CMLR 104 [38] per HHJ Parkes QC) and who have no need of any form of innocent dissemination defence; and (2) primary and secondary publishers, in respect of which only secondary publishers could avail themselves of any sort of innocent dissemination defence.”
In Tamiz -v- Google Inc [2013] 1 W.L.R. 2151, the defendant operated a blogging platform. The Court of Appeal held that the defendant was not a primary publisher as it had no prior knowledge or control over the content of the blog complained of; nor was it a secondary publisher as it neither knew nor ought by the exercise of reasonable care to have known that the publication was likely to be defamatory [25]-[26]. However, applying Byrne v Dean, the Court held that if the defendant had allowed defamatory material to remain on its platform after it had been notified of its presence and had had a reasonable time within which to act to remove it, it could be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a secondary publisher of it; and that the period of five weeks between notification and removal was sufficiently long for such an inference on the facts of that claim.
s.10 Defamation Act 2013 Act provides as follows:
“A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher.”
“Author”, ”editor” and ”publisher” have the same meaning as in s.1 Defamation Act 1996.
s.1 of the 1996 Act provides (so far as material):
“(2) …”author” means “the originator of the statement, but does not include a person who did not intend that his statement be published at all”;
“editor” means “a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it”; and
“publisher” means “a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business”.
(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved—
…
(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.
In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.”
Challenges to the court’s jurisdiction under s.10 should be made under CPR Part 11: Mohammed -v- Daily The News International [2023] EWHC 674 (KB) [18], applying Soriano [52].
In Tamiz(both at first instance and in the Court of Appeal) the Court held that Google’s operation of the Blogger platform on which the statements complained of were published did not make it a publisher in the relevant sense, drawing support from s.1(3)(e): see [2012] EMLR 24 [40]-[45], Court of Appeal [39]-[40]. Terms and conditions imposed upon users as to the content which could be posted did not amount to “effective control” over users of the blogging platform: [44] and [40] respectively.
s.5 Defamation Act 2013 provides:
“(1) This section applies where an action for defamation is brought against the operator of a website in respect of a statement posted on the website.
(2) It is a defence for the operator to show that it was not the operator who posted the statement on the website.
(3) The defence is defeated if the claimant shows that—
(a) it was not possible for the claimant to identify the person who posted the statement,
(b) the claimant gave the operator a notice of complaint in relation to the statement, and
(c) the operator failed to respond to the notice of complaint in accordance with any provision contained in regulations.
(4) For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.”
Regulation 19, E-Commerce (EC Directive) Regulations 2002
Regulation 19 provides that:
“Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the storage provider (if he otherwise would) shall not be liable for damages or for any pecuniary remedy or for any criminal sanction as a result of that storage where –
the service provider–
does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or
upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access to the information; and
the recipient of the service was not acting under the authority or the control of the service provider”.
The Regulation has been held to apply in respect of postings on Facebook platform: CG -v- Facebook Ireland [2017] EMLR 12; and to readers’ comments posted beneath newspaper website articles: Karim -v- Newsquest Media Group Ltd [2009] EWHC 3205 (QB).
The defence under the Regulation may be available in respect of certain content where it has only hosted it even if it may have acted differently in respect of other content on the platform: Kaschke -v- Gray [2011] 1 WLR 452 [75].
It is for a claimant to adduce prima facie evidence that the service provider had the relevant actual knowledge, before the burden shifts to the provider to show that it did not have that knowledge: CG -v- Facebook Ireland[70].
Whether a notice will provide “actual knowledge” under the regulation will depend upon all relevant circumstances, including the “extent to which” the notice includes “details of the location of the information” and “details of the unlawful nature of the activity or information in question”: Regulation 22.
In a defamation context, to have “actual knowledge of unlawful activity or information” or for it to be apparent that the information was “unlawful”, it is necessary for the service provider to have knowledge that defences such as truth or honest opinion are not available, as opposed to mere knowledge that a statement is defamatory: Bunt -v- Tilley[72] (supported by Stadlen J’s observations in Kaschke -v- Gray[100]).
F: Evidence
Substantial evidence has been filed on the various applications. However, for the purposes of the issues I must decide, many points are not disputed.
It is necessary separately to identify the evidence of the First Defendant in support of his anonymity application. The First Defendant filed a witness statement, dated 24 April 2025, in support of his application. In it, he has confirmed the name he provided in his Acknowledgement of Service. As to anonymity, he says the following:
“Due to my prominent public profile within the crypto and gambling streaming community, where my channel routinely attracts approximately 5,000 viewers, it is essential for my personal safety and privacy in that my true identity is not disclosed in these proceedings.”
Exhibited to his witness statement are several documents, a profile from his Kick streaming platform, a screenshot from his profile from the Kick streaming platform, and a weblink to steams chart showing his popularity. He has exhibited some statistics, his profile on X social media platform and part of the profile on his X social media account.
“5.2 I have maintained a measure of anonymity for the past five years which has enabled me to conduct my professional and personal affairs without undue exposure.
5.3 I have received multiple threats, ranging from aggressive messages to explicit physical threats via social media and WhatsApp which underscore the significant potential for reputational harm and personal risk if my identity were to be made public.”
The First Defendant has exhibited four screenshots of threats that he has received.
G: Events after the hearing and the Order of 3 October 2025 fixing a further hearing
It was not possible for me to hand down judgment before the end of term (31 July 2025). The Court vacation began on 1 August 2025. During the vacation, the Claimant sent to the Court a series of emails containing further evidence and submissions. I became aware of these on return from the vacation. Although usually the Court might deal with limited submissions received after a hearing by a discrete exchange of written submissions, the proliferation of emails led me to conclude that the only fair and practical way of dealing with the Claimant’s further submissions and evidence was to convene a further hearing. I made an order, without a hearing, on 3 October 2025 fixing a further hearing and giving the First and Third Defendant’s the opportunity to file any evidence upon which they wanted to rely in response to the Claimant’s evidence. The order provided, expressly, that the Claimant must not file or send to the Court any further evidence unless he has previously obtained the Court’s permission.
My reasons were set out in my order of 3 October 2025:
“(A) The Court does not normally allow parties to submit further evidence after the argument has been heard, and judgment reserved. However, the Court does have jurisdiction to consider an application that it should do so, even if the circumstances in which the Court would accede to such an application are limited, reflecting both the overriding objective and the principle that there must be finality to litigation
(B) Having reviewed the material that has been submitted by the Claimant, and the response of the First and Third Defendants, I have concluded that I cannot fairly deal with the Claimant’s submission of further evidence and his request that the Court consider it without arranging a further hearing. Trying to deal with this matter by way of written submissions would be likely to be inefficient and I am not confident that it would bring the finality that is required. Given particularly the costs implications of doing so, I have not taken this decision lightly, but I cannot see an alternative. I have therefore fixed the Further Hearing and given directions.
(C) In the past, it has been necessary to imposed restrictions on the Claimant to curb his tendency to issue a plethora of applications. The submission of multiple emails and further evidence since the original hearing is similar behaviour which again threatens to place a disproportionate burden upon the Court and the other parties. I need to make it very clear that, unless the Court gives permission, the Claimant must not file any further evidence or material in advance of the Further Hearing. It is unacceptable and unfair to have a constantly moving target.”
The evidence filed by the Claimant relied principally upon the following:
A stream by the First Defendant on 29 July 2025. In it, the First Defendant discussed the claim. The Claimant relies upon a statement made by the First Defendant that he intended to “go over the Claim Form” with his viewers. The Claimant is concerned that this would potentially reveal his address and other personal details (albeit he has not, as yet, made any application to withhold these details from the publicly available version of the Claim Form in these proceedings).
Edward Craven, the co-founder of Medium Rare NV and the Third Defendant, invited the First Defendant to appear as a guest on his regular livestream on the Kick platform on 2 August 2025. Then, on 10 August 2025, Mr Craven appeared on the First Defendant’s stream. The Claimant contends that this shows the commercial relationship between the First and Third Defendants (and Medium Rare NV).
In answer to the Claimant’s evidence, the First Defendant has not filed any evidence, formally. He has relied upon an email that he sent to the Court on 10 September 2025. In it he said:
“I would like it noted that I have never once threatened to leak or share any of the Claimant’s personal information publicly and I have no desire to do so. For him to even insinuate that is exceptionally poor form and he has no basis to try to guide the courts into thinking this is a real possibility. If his stance is that the documents do contain his personal information, then he should have probably thought about that when trying to make a frivolous case like this stick together. But with that being said, I would like to confirm again with the Courts I have absolutely no interest in sharing his private information (as in personal name and location details) with my channel or anyone at all, and if the courts wish to make an order to confirm this, I would 100 per cent allow this without objection (when I say allow I simply mean I will not hold up your process). I would like it noted I do not believe he deserves an anonymity order request or anything similar for all the reasons he stated against myself, because he is the aggressor in this case and I have been forced to defend myself and risk my livelihood, not the other way round. Again though, I wish to emphasise I have zero per cent desire to share any of his private information to anyone and if the courts believe this should be addressed by an order, I will be happy to go along with their decision without objection to fast-track that process.”
At today’s hearing, the First Defendant has repeated and confirmed that he has no intention of sharing on his stream the Claimant’s personal information as contained within the Claim Form or documents.
The Third Defendant has filed a witness statement by Mr Craven dated 17 October 2025. In it, Mr Craven confirms his appearance with the First Defendant on the streams on 2 and 10 August 2025. He states, however, that neither the Third Defendant nor Medium Rare NV was aware of what the First Defendant had said on his stream on 29 July 2025 until complaint was made about it in the material the Claimant submitted to the Court.
The Claimant has sought permission to rely upon yet further evidence in advance of this hearing. In the interests of finality, I refused to grant such permission.
H: The Claimant’s further submissions
In the further evidence and submissions provided by the Claimant, he contends that the First Defendant has misrepresented his location. In his Acknowledgement of Service and in his witness statements, the First Defendant has stated that he resides in the UAE. The Claimant submits that evidence he has adduced calls this into question, and suggests that the First Defendant lives in New Zealand.
The Claimant also submits that the First Defendant’s non-engagement in the claim supports his argument, under s.10 Defamation Act 2013, that it is not reasonably practicable to proceed against the First Defendant alone and that he should therefore he should be permitted to proceed with the claim against the Second and Third Defendants.
Based on the evidence adduced, the Claimant also alleges that the First Defendant’s statements made online including threats to share court documents, constitute further defamation and harassment of him.
Finally, the Claimant suggests that evidence he has adduced showing the continuing close relationship between the First and Third Defendant’s supports his arguments on the control exerted by the Third Defendant on the First Defendant that he says is relevant to his claim that the Third Defendant is liable for the First Defendant’s postings about him that are the subject of his claim.
Mr Munden submits that the Court should refuse to consider the further evidence relied upon by the Claimant. Relying upon Barclay-Watt -v- Alpha Panareti Public Ltd [2021] EWHC 1327 (Comm) [78], he argues that the evidence is not significant (in the sense that it cannot materially affect the outcome of the decisions I had to make following the hearing on 21 July 2025). Insofar as the Claimant is now seeking to raise the new argument – as to the practicability of bringing a claim against the First Defendant given concerns as to his location and domicile – then he has provided no adequate explanation as to why he could not have made that point at the hearing on 21 July 2025.
I: Decision
Anonymity/Application to amend to provide the First Defendant’s name in the Statements of Case
I am satisfied by the First Defendant’s evidence that it is necessary for the Court to allow him to be sued under his pseudonym. He has provided credible evidence of threats made against him. An order that he be permitted to use this pseudonym in these proceedings represents a very limited derogation from the principles of open justice. Under his pseudonym, the First Defendant is readily identifiable. Subject only to any further orders the Court may may, there will be full visibility of these proceedings which will be conducted in public. The only thing the public will be prevented from knowing is the real identity of the First Defendant. This is not something that he makes publicly available on his platform. The order will contain the usual order enabling a third party to apply to vary or discharge the pseudonymity order that I have made.
The consequence of this decision is that I refuse the Claimant’s Application to amend the name of the First Defendant from the current pseudonym to his real name.
Jurisdiction over the Second Defendant/Medium Rare NV
The position regarding the currently pleaded Second Defendant is relatively straightforward.
The named company is a company registered in England & Wales. On the evidence, and despite its name, I am satisfied that it has nothing to do with the Medium Rare NV, the current Applicant, or the Third Defendant. The Claimant appears to accept this, hence his application to amend the name of the Second Defendant to that of the Applicant, Medium Rare NV.
The Claimant has no claim against it, but more importantly, the order granting the Claimant permission to serve the Claim Form by email is defective. The order permitted use of email addresses that, it is now clear, had nothing to do with the named Second Defendant. I will set aside the order granting the Claimant permission to serve the Second Defendant by alternative means. As the Second Defendant has not therefore been served with a Claim Form, and subject only to the application to amend to replace it with the Applicant, that will bring the claim against the Second Defendant to an end. The time for serving the Claim Form has long expired.
As to the amendment application, to replace the Second Defendant with the Applicant, Mr Munden submits that the amendment application should be refused on the grounds that the amendment has no real prospect of success: Elite Property Holdings Ltd -v- Barclays Bank plc [2019] EWCA Civ 204 [41]. In short, the Claimant has no viable claim against Medium Rare NV and so should not be granted an amendment the effect of which would be to join Medium Rare NV to the claim. That submission essentially covers the same ground as advanced by the Third Defendant in its challenge to jurisdiction.
In my judgment, the challenge to jurisdiction, based on s.10 Defamation Act 2013, by the Third Defendant and Medium Rare NV is well-founded. Medium Rare is not an “author”, “editor” or “publisher” within the meaning of s.10. It is not a publisher (whether primary or secondary) of the streams complained of by the Claimant at all.
As to the Third Defendant, it is necessary to separate the original publication from the subsequent hosting of the stream for 30 days after original publication.
As to the original publication, the Third Defendant is not a publisher within the terms of s.1(3)(e) Defamation Act 2013. It had not effective control over the First Defendant. The fact of a commercial sponsorship agreement between the First and Third Defendant is not disputed, but it did not give the Third Defendant effective control over what the First Defendant said in his streams, and it does not otherwise make the Third Defendant liable for independent publications by the First Defendant.
As regards the continuing publication, for 30 days, the Third Defendant has raised several arguments, but under s.10 there is a decisive answer. The Claimant cannot overcome the point that it was reasonably practicable to bring a claim against the First Defendant. Not only was it reasonably practicable, but the Claimant has done so, complaining of the same publications for which he seeks to hold the Third Defendant responsible.
The further evidence that the Claimant has provided, since the hearing on 21 July 2025, as to the commercial relationship between the First and Third Defendants does not add anything material to the original evidence he relied upon or compel a different conclusion. Equally, insofar as the Claimant’s new evidence suggests a basis to challenge whether the First Defendant is domiciled in UAE or New Zealand, (a) this is a point that he could and should have raised at the hearing on 21 July 2025 and (b) more importantly, is not relevant under s.10. The statute requires the Court to consider whether it was reasonably practicable for an action to be brought against the First Defendant, not whether any remedy that the Claimant might achieve in the claim might be difficult to enforce. The First Defendant has been successfully joined to these proceedings by the Claimant, and the First Defendant is fully engaged with them, not only by participating in each hearing at which his attendance has bene required, but also to the extent of bringing a counterclaim against the Claimant.
As to the continued publication of the stream after original publication, I am also satisfied that the Third Defendant is not a publisher at common law. The Claimant has no real prospect of being able to establish liability based on Byrne -v- Dean. The complaints made by the Claimant to the Third Defendant were too generalised and non-specific to fix the Third Defendant with knowledge of a defamatory publication sufficient to raise an arguable case that it authorised the publication. Equally, the notification given to the Third Defendant by the Claimant was insufficient to make it a secondary publisher under the principles in Tamiz -v- Google. The Claimant’s complaints were vague, related only to the 22 June 2024 stream (and so did not include publications now complained about in the Particulars of Claim), failed to identify the particular statements complained of, and did not explain why they were defamatory and untrue. Each video containing the statements complained of was automatically removed after 30 days.
Although not strictly relevant in light of the decisions I have reached, the Third Defendant would also appear to have had a defence under s.5 Defamation Act 2013. There is no dispute that it was the First Defendant, not the Third Defendant, who posted the statement complained of. There was no real prospect of the Claimant defeating the defence because he was able to identify the First Defendant as the person who posted the statement.
In his Particulars of Claim, but not in his Claim Form, the Claimant has advanced a further claim of harassment. Up to this point, I have been dealing solely with the viability of his defamation claims. In my judgment, the E-commerce directive means that the Claimant has no real prospect of succeeding with his harassment claim against the Third Defendant. I say nothing about the merits of such a claim against the First Defendant. In his complaints made to the Third Defendant about the First Defendant’s streams he did not complain, at any time before they were removed after 30 days, of potential harassment by the First Defendant. It follows, in my judgment, that the Claimant has no real prospect of demonstrating that the Third Defendant had “actual knowledge of unlawful activity”.
For these reasons, I conclude that the Court does not have jurisdiction over the claim against Medium Rare NV and/or the Third Defendant. The consequence of this decision is that:
permission to amend to add Medium Rare NV as a defendant to the claim will be refused;
the order granting the Claimant permission to serve the Claim Form on the Third Defendant out of the jurisdiction will be set aside; and
the claim against the Third Defendant will be dismissed.
That will leave only the Claimant’s claim against the First Defendant and his counterclaim against the Claimant. I know that the First Defendant has indicated an intention to issue an application seeking to dismiss or strike out the Claimant’s claim against him. I say no more about that – save to acknowledge and record the position. The Court will determine such application on its merits as and when it is pursued.
As I indicated at the hearing today, I propose not to deal with the orders to be made consequent upon this judgment until such time as the parties have had time to obtain and consider a transcript. This has been a long judgment, dealing with several points. I will deal with consequent orders, including any application for permission to appeal, by written submissions for which I will set a timetable. I will formally adjourn any application for permission to appeal until 14 days after I have made the order consequent upon the decision today.
One thing that I will consider is whether to impose a stay for a defined period to allow for mediation between the Claimant and First Defendant. The Claimant and First Defendant should give specific consideration to this and let me have any submissions that they wish to make as to the form that any mediation should take. Quite apart from any formal mediation, now is a good time for the Claimant and First Defendant to take stock.