Wright v Ver

This is a claim for libel. The Claimant is a computer scientist with a particular interest in cryptocurrencies. He is a national of Australia, who has lived in the United Kingdom since December 2015. Bitcoin is a cryptocurrency. The Defendant is a bitcoin investor. He also describes himself as a commentator within the bitcoin and cryptocurrency industries who is currently involved in several bitcoin related projects. The Defendant was born in the United States, in 1979, and moved to Japan in 2005. Since 2014 he has been domiciled in, and a citizen of, St Kitts & Nevis. Satoshi Nakamoto is the name used by the pseudonymous person(s) who developed bitcoin.

The Claimant complains that he has been libelled in the following publications:

For the purposes of the present application I need not set out the contents of the videos about which the Claimant complains. It suffices that I set out the defamatory innuendo meaning that the Claimant says these publications bear: “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 principal issue I have to determine on the present application is whether the Court has jurisdiction over the claim. Section 9 of the Defamation Act 2013 provides (so far as material):

It is common ground that the Defendant is not domiciled in any of the places identified in s.9(1). Therefore, this Court does not have jurisdiction over the Claimant’s claim for libel unless the Court is satisfied that of all the places that the statements complained of have been published, England and Wales is clearly the most appropriate place in which to bring the claim.

The Claimant sent a letter before action to the Defendant on 1 May 2019, seeking a response by 8 May 2019. However, on 2 May 2019, discovering the Defendant was visiting London, the Claimant issued a Claim Form and arranged for it to be served personally on him (CPR Part 6.5(2)). At that stage, the Claim Form made a claim for libel solely in relation to the YouTube Video. Service of the Claim Form on the Defendant whilst he was within the jurisdiction is important; it meant that the Claimant did not require the Court’s permission to serve the proceedings.

On 16 May 2019, the Claimant made an application, without notice to the Defendant, for an order granting him permission:

There was a hearing before Master Thornett that same day, at which the Claimant was represented by junior Counsel and a representative of his solicitors. The Master granted the Claimant permission to amend the Claim Form and, pursuant to CPR 6.15(1), permitted the Claimant to serve the Amended Claim Form, the Particulars of

On 13 June 2019, and within the time for doing so under Master Thornett’s order, the Defendant filed an Acknowledgement of Service indicating that he intended to contest the Court’s jurisdiction. In the accompanying letter from his solicitors, the Defendant indicated that the basis of the challenge was lack of jurisdiction under s.9 based on the Defendant’s domicile. Following further correspondence between the parties, on 27 June 2019, the Defendant made the Application that is before the Court today, for a declaration that the Court did and does not have jurisdiction over the claim and to set aside Master Thornett’s Order on the basis of material non-disclosure, namely the failure to draw the Master’s attention to s.9 Defamation Act 2013 (“the Set-Aside Application”). I deal with the Set-Aside Application below ([56]-[60]).

A substantial amount of evidence has been filed by both parties. There are two statements each from the Defendant and the Claimant, and several other witness statements. Principally, this evidence concerns the parties’ connections with this (and other) jurisdictions, the extent of publication in England and Wales (compared with other jurisdictions) and the importance to the Claimant of his reputation in this jurisdiction.

I have set out the terms of s.9 above. The terms and effect of the section have only received direct consideration in one earlier case: Ahuja -v- Politika Novine I Magazini DOO & others [2016] 1 WLR 1414. I made some observations on s.9 in Huda -v- Wells [2018] EMLR 7 [84]-[85], but the case was decided on other grounds and so they are strictly obiter. They also must be understood in the context of that particular case.

The Explanatory Notes to the Defamation Act 2013 state, in relation to s.9:

“65.

This section aims to address the issue of ‘libel tourism’ (a term which is used to apply where cases with a tenuous link to England and Wales are brought in this jurisdiction). Subsection (1) focuses the provision on cases where an action is brought against a person who is not domiciled in the UK, an EU Member State or a state which is a party to the Lugano Convention. This is in order to avoid conflict with European jurisdictional rules (in particular the Brussels Regulation on jurisdictional matters).

66.

Subsection (2) provides that a court does not have jurisdiction to hear and determine an action to which the section applies unless it 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. This means that in cases where a statement has been published in this jurisdiction and also abroad the court will be required to consider the overall global picture to consider where it would be most appropriate for a claim to be heard. It is intended that this will overcome the problem of courts readily accepting jurisdiction simply because a claimant frames their claim so as to focus on damage which has occurred in this jurisdiction only. This would mean that, for example, if a statement was published 100,000 times in Australia and only 5,000 times in England that would be a good basis on which to conclude that the most appropriate jurisdiction in which to bring an action in respect of the statement was Australia rather than England. There will however be a range of factors which the court may wish to take into account including, for example, the amount of damage to the claimant’s reputation in this jurisdiction compared to elsewhere, the extent to which the publication was targeted at a readership in this jurisdiction compared to elsewhere, and whether there is reason to think that the claimant would not receive a fair hearing elsewhere.”

Sir Michael Tugendhat considered the reference to ‘libel tourism’ in the Explanatory Notes in Ahuja [26]:

“… [the words ‘libel tourism’] do not identify the mischief which the section is to remedy. It is not suggested in the present case that the claimant is in any sense a ‘tourist’, nor that his links to England and Wales are tenuous, and yet the section applies to him. The section makes no reference to different categories of claimant, or to any specific link to England that a claimant might have or lack. It applies as much to a claimant who has never resided in England as to one who is resident or domiciled here…”

He did not accept the broad submission that, in order to give effect to the section in a way that was compatible with a claimant’s right of access to a Court under Article 6, s.9 had to be read as if it contained the additional underlined words: “of all the places in which the statement complained of has been published, which may reasonably be considered appropriate” [35], [41]. The Judge considered that Article 6 might be engaged, in more limited circumstances, where a claimant confronted an enormous task to put before the Court evidence of the extent of publication in multiple jurisdictions [39]-[40]:

“The Internet has had the effect that many ordinary people are defamed in publications accessible to readers all over the world. And some ordinary (and otherwise very private) people are the subject of defamations which, for one reason or another, are in fact read or viewed (on media such as YouTube) by thousands or even millions of people abroad. And I would not exclude the possibility that there could be cases where, to require a claimant to put before the court evidence relating to all the jurisdictions where the defamatory statement has been published, might interfere with the claimant's right of access to the court. But that is not this case… [I]f I had thought that there was any undue or impossible requirement being imposed on the claimant in this case, I would have taken into consideration, in deciding whether England and Wales is clearly the most appropriate place in which to bring an action, the claimant’s right of access to the court.”

Mr Tomlinson QC submits that there are two important points about s.9:

Mr Tomlinson QC contends that the following principles can be derived from Ahuja and Huda:

Mr Wolanski QC accepts that the evidential burden is on the Claimant and that the Court must consider all the jurisdictions in which the defamatory statement has been published when deciding whether England and Wales is clearly the most appropriate. He argues that Ahuja and Huda are authorities for the following propositions:

Mr Wolanski QC further submits that publication on the internet gives rise to additional considerations. In Sloutsker (a case that did not concern s.9), Warby J stated [43]:

“As the law stands, the same principles apply to internet publication as apply to hard copy publication, except that the court's discretion in an internet context ‘will tend to be more open-textured than otherwise’: King -v- Lewis... It is clear from the context in which Lord Woolf made that remark that he intended it to be taken as an indication that the court should not be shy of allowing foreigners who publish via the internet to be sued in this jurisdiction, given that such publishers will have chosen to disseminate their information via a global medium. This emerges not least, but not only, from Lord Woolf's citation at [29] of the conclusion of the High Court of Australia in Gutnick -v- Dow Jones [2002] HCA 56 [192] that:

‘If a publisher publishes in a multiplicity of jurisdictions it should understand, and must accept, that it runs the risk of liability in those jurisdictions in which the publication is not lawful and inflicts damage.’”

Prior to s.9 Defamation Act 2013 the common law position in relation to jurisdiction was summarised by Lord Phillips MR in Jameel -v- Dow Jones & Co Inc [2005] QB 946:

In King -v- Lewis [2005] EMLR 4, the Court of Appeal identified three strands in the common law (excluding the issue of juridical advantage) as to the proper forum for defamation claims:

The Court’s task is to assess the relative importance of all the factors: including the place of the tort, the parties’ respective connections with the relevant jurisdictions and the global nature of the publication. This is not an application of legal rules. They are matters which will inform the judge who ultimately must decide where the balance of convenience lies: King [36].

The burden of demonstrating that England and Wales is clearly the most appropriate place to bring an action for defamation lies on the claimant.

The task for the Court is an assessment of evidence, not an exercise of discretion.

The threshold is clear: the Court must be satisfied that England and Wales is clearly the most appropriate jurisdiction in which to bring a libel claim where there has been multi-jurisdiction publication. It is no longer sufficient to demonstrate that England and Wales is an appropriate jurisdiction. A claimant could fail to surmount the evidential hurdle in s.9(2) even if the Court is unable to identify, from the other candidate jurisdictions, an alternative that is the most appropriate.

The section does not list the factors that should be considered when deciding whether the claimant has demonstrated that England and Wales is “clearly the most appropriate place” to bring an action for defamation.

The only consideration to which express reference is made in the section is the extent of publication in England and Wales compared to other jurisdictions: that I derive

The section does not discriminate between those claimants domiciled/resident in England and Wales and those domiciled/resident elsewhere. A claimant who lives and works (or has a substantial reputation) in England and Wales may find it easier to discharge the burden of showing that England and Wales is clearly the most appropriate jurisdiction (see discussion in [31(ii)] below), but the terms of the section do not justify any evidential presumption to that effect.

As made clear in the Explanatory Notes, the extent of publication in each jurisdiction is likely to be a weighty factor when making the assessment of whether England and Wales is clearly the most appropriate place to bring the claim. As a rough starting point, the more extensive the publication in a jurisdiction, the greater the damage to reputation in that jurisdiction.

However, “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”: Ahuja [31]. Equally, some individuals may enjoy reputations in one or more countries abroad that are at least as significant as their reputations in their ‘home’ jurisdiction; for example, those who have achieved prominence in business, finance, government, academic life, media and entertainment and sport: Ahuja [32].

Assessment of harm to reputation has never been just a ‘numbers game’: “one welldirected arrow [may] hit the bull's eye of reputation” and cause more damage than indiscriminate firing: King -v- Grundon [2012] EWHC 2719 (QB) [40] per Sharp J. That principle applies equally to cross-border libels. 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 [31];

And claimants must “… put before the court the evidence of the harm to their global reputations which enables the court to be 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”: Ahuja [71].

The concept of ‘targeting’, perhaps needs further elaboration. In King -v- Lewis, Court of Appeal doubted the relevance of ‘targeting’ in internet publication cases [34]:

“… it makes little sense to distinguish between one jurisdiction and another in order to decide which the defendant has ‘targeted’, when in truth he has ‘targeted’ every jurisdiction where his text may be downloaded. Further, if the exercise required the ascertainment of what it was the defendant subjectively intended to ‘target’, it would in our judgment be liable to manipulation and uncertainty, and much more likely to diminish than enhance the interests of justice.”

“Targeting” may be a misnomer for the concept that I think does have a potential bearing. The website of a UK newspaper will be accessible all over the globe, but the content may recognisably be ‘targeted’, predominantly, even if not exclusively, at a UK audience. For some websites or online publication, the fact that the content is available in other jurisdictions is just an incidental feature of the internet. A local online petition to install more street lights in Peckham will be available to the denizens of Caracas, even if it was of little or no interest to them. But, again, this is fact-sensitive. An article published on such a UK newspaper’s website might be read, in total, by more people outside England and Wales than within the jurisdiction. I understand Sir Michael Tugendhat, in Ahuja [31], to be saying simply that, in this sense, the publication may be characterised as being ‘targeted’ and that is likely to be a relevant factor in determining whether England and Wales is clearly the most appropriate place to bring an defamation action. That this would be a relevant factor to be considered could hardly be controversial.

Having regard to these points, in my view, the required assessment under s.9(2) can be approached in two stages:

Evidence of a person’s connections to a jurisdiction (which did not demonstrate the extent of his/her reputation) and evidence as to the relative convenience of England and Wales for the parties and witnesses may not, on its own, carry much weight, but could assume importance in a marginal case. A claimant who could not satisfy stage 1 and could not demonstrate evidence of any real harm to reputation in England and Wales at stage 2 might well fail to satisfy the Court that the jurisdiction was clearly the most appropriate based solely on other factors: e.g. the fact that s/he and his/her family lived in England and Wales; or that England and Wales was the most convenient jurisdiction for the parties and/or witnesses. The relevance of domicile or residence is likely to be a factor in the assessment of the extent of claimant’s reputation in England and Wales and globally. If the claimant establishes – to the required high standard and by cogent evidence (Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 [95]) – that s/he is at risk of not get a fair hearing in any particular jurisdiction, then the Court might well consider it appropriate to exclude that jurisdiction from the assessment. This was a factor in Sloutsker [48], [70]ff.

Depending on the facts, I suppose it might be possible for a claimant, by a process of elimination, to establish that England and Wales was the only appropriate place to bring the claim; by demonstrating that all the other candidate jurisdictions were inappropriate. In cases of global publication, that might prove to be a very difficult, if not an impossible, task.

As is immediately apparent from this analysis, the assessment under s.9(2) is highly fact-specific. It is impossible to lay down hard rules. But, to the extent that the old forum non conveniens rules involved an assessment of the “balance of convenience” (see [21] above), that is certainly not reflected in the test under s.9. Insofar as the metaphor of a balance remains apt, a claimant now has to show that the scales come decisively down in his/her favour. Mr Wolanski QC’s submissions, set out in [17(i)(iii)] above, are a misreading of Huda and incorrectly elide the old common law test with the provisions of s.9.

Although figures are not available for the number of times the YouTube Video was watched, based on the figures for subscribers to, and total views of, the Bitcoin YouTube Channel, it is common ground that the evidence demonstrates that the likely extent of publication is as follows:

These figures, and the evidence, also establish:

Mr Wolanski QC has submitted that the following evidence is relevant to the assessment of the extent of and harm to the Claimant’s reputation in England and Wales:

As Mr Tomlinson QC has pointed out, the evidence clearly demonstrates that, whatever reputation he enjoys in the UK as a result of these activities, he has an international profile. On his own website, the Claimant promotes himself as follows:

“[The Claimant] is an Australian/Antiguan computer scientist, businessman and inventor who challenges the world with visionary ideas. He is the creator of Bitcoin under the pseudonym Satoshi Nakamoto. His vision is a world with wide-scale adoption of Bitcoin as electronic cash and commodity money, and also the Bitcoin blockchain as a transformative technology platform. Currently, [the Claimant] is Chief Scientist for nChain – the global leader in advisory, research , and development of blockchain technologies… Before his early and extensive work with Bitcoin, [the Claimant] had over 20 years of experience in the fields of information technology and security, and is one of the most highly qualified digital forensics practitioners in the world… A prolific researcher, [the Claimant] has been a lecturer and researcher in computer science at Charles Sturt University [Australia]. He has also authored many articles, academic papers and books on IT, security, Bitcoin, and other cryptocurrency issues. [The Claimant] is now a sought-after public speaker internationally on security, Bitcoin and cryptocurrency topics, while also presenting his research findings at academic and business conferences.”

In his witness statement, the Claimant has confirmed that he often speaks at international conferences concerning Bitcoin and cryptocurrencies and says that he is widely acknowledged as “one of the world’s foremost blockchain experts” a recognition he says “includes” in the United Kingdom.

The Claimant addresses the harm to his reputation in the UK in three paragraphs in his first witness statement:

“47.

The defamatory attacks by [the Defendant] damage my integrity within the United Kingdom’s community of business people with whom I primarily deal. Being labelled a fraud has a repellent effect with regard to future business – if people view me as a fraud, my proficiency as a computer scientist as well as my life’s work will be called into question. Moreover, no one would reasonably enter into business dealings with someone thought to be a fraud.

48.

The vast majority of my business peers are in the United Kingdom as well as my work place. Clearly, my reputation will suffer the most here as [a] result of [the Defendant’s] defamatory attacks. I have solidly established my professional and personal reputation in the UK.

49.

I came to the United Kingdom in part because I wanted to hire personnel of the highest calibre to work with me in developing, inventing and re-inventing technology that will positively impact people’s lives. Being able to hire local PhD mathematicians has transformed nChain and helped it to grow substantially. These talented technicians want to join nChain because of my reputation in the field. Continual reputational attacks in the United Kingdom will dash any hope of hiring such talented people.”

At the hearing, Mr Wolanski QC confirmed that the effort to recruit staff to nChain was not limited to people in the UK. nChain would hope to attract candidates globally. In that respect, it is not only the Claimant’s UK reputation that has a bearing on this, but also his global reputation.

In his second witness statement, the Claimant states that he has been asked to respond to governmental requests for information from the UK, China, the US, Singapore, Canada, New Zealand, Australia and Uzbekistan. He also details his efforts to file a copyright registration for the Bitcoin Whitepaper in the US. The details are not particularly material, but the Claimant does say this:

“There were questions in the wider Bitcoin community about the authorship of the Whitepaper and these questions were hindering my efforts to build a global business (both blockchain and coin) based on Bitcoin SV…”

I would note here that Bitcoin is a global cryptocurrency and, likewise, the Bitcoin community that the Claimant described in his statement is a global community, not one limited to the UK.

Mr Wolanski QC confirmed that there is no other evidence as to the extent of the Claimant’s reputation in the UK (or elsewhere). Specifically, there is no evidence at all of any actual reputational harm that the Claimant has suffered as a result of any of the Defendant’s publications.

Mr Tomlinson QC submits, correctly in my judgment, that the Claimant has not provided the Court with any evidence (beyond the limited material I have set out above) as to the global reputation he enjoys and, more particularly, the extent to

The evidence clearly demonstrates that the most substantial publication of the statements complained of is in the US. It is common ground that, of the global publication, only some 7% took place in England and Wales. The extent of publication in England and Wales does not demonstrate that this jurisdiction is the most appropriate place to bring the action. Still less does it do so ‘clearly’.

The publications complained of were not in any way ‘targeted’ at publishees in England and Wales. Undoubtedly, the publications were targeted the Claimant, but the topic – Bitcoin – was of global interest. In reality, the Defendant addressed his remarks to the global Bitcoin community, not any sector of it exclusively in the UK. It is true that the Claimant has been resident in the UK since 2015, but has little to do with the issue of targeting. The message in the publications complained of would have been targeted at him in whatever jurisdiction he lived. These were global publications disseminated on global platforms.

In my judgment, the Claimant’s evidence as to the extent of harm that the publications have caused (or are likely to cause) is weak, lacks detail and the three paragraphs I have set out ([42] above) put forward evidence at a level of generality that is almost entirely speculative. There is no objective evidence of any harm to reputation in England and Wales. The Claimant has failed completely to address whether and to what extent the publications complained of have harmed his reputation in other jurisdictions. The evidence demonstrates clearly that the Claimant enjoys a global reputation, the vast majority of which was generated before he moved to the UK. It is impossible for the Claimant to divide his reputation into neat jurisdictions; it is clearly global. Mr Wolanski QC did not submit that the Claimant has not suffered damage to his reputation beyond England and Wales – on the evidence that would have been extremely unlikely – the whole issue is simply left completely unaddressed in the Claimant’s evidence. That is so, even though the evidence that is required has been clearly identified in Ahuja (see [28] above). Although Mr Wolanski QC did submit that the Claimant faced some difficulties in providing evidence of harm in multiple jurisdictions, and the Court had to be realistic about what evidence a claimant could be expected to provide, I am not satisfied that there is any real impediment to the Claimant providing such evidence. None of the potential issues of impairment of access to justice under Article 6 arises (see discussion in Ahuja [33]-[38]). The reality is that the Claimant has not made any real attempt to address this important issue in his evidence.

Whilst I accept the points identified by Mr Wolanski QC - summarised in [39] above - this evidence does not provide any real basis on which I could be satisfied that England and Wales is clearly the most appropriate place for the Claimant to bring this action. Points (i) to (viii) do demonstrate that the Claimant and his family have been

In my judgment, the Claimant has failed to demonstrate that, judged in terms of harm to reputation, England and Wales is clearly the most appropriate place to bring this defamation claim.

There is no suggestion that the Claimant would not get a fair trial in any of the alternative candidate jurisdictions. I accept that the Claimant would find it more convenient to have the claim tried in England and Wales, simply on the basis that he now lives in the UK. I also accept that the Defendant has not submitted that he would find it in any way difficult if the action continued here. Nevertheless, these are minor factors which carry little weight when assessed against the extent of publication and harm to reputation.

Some time – and quite some evidence, including expert legal evidence on whether a US Court would accept jurisdiction over the claim – has been devoted to the question of whether the US is in fact the most appropriate jurisdiction. I do not need to resolve this issue (see [24] above). Indeed, as the Claimant has declined to provide evidence of the extent of his global reputation and the harm that has been occasioned by the publications complained of, for example in the US, I lack a basis on which to make any real assessment. I only have half of the picture; i.e. the extent of publication in the US. In his evidence, the Defendant has indicated that he consents to the Claimant’s claim being brought in the US. That concession avoids the need for any analysis of the evidence, and determination, whether, absent the Defendant’s consent, a US Court would have had jurisdiction over the claim. The evidence demonstrates that there are US Courts that will accept jurisdiction where the parties have consented. In consequence, the US remains an alternative jurisdiction in which the Claimant could pursue his claim. This is not a case where the Claimant has demonstrated that there are no other jurisdictions within which he could pursue his claim and, therefore, by a process of elimination, England and Wales is left as the only place in which he can bring an action.

The Claimant has not satisfied me that England and Wales is clearly the most appropriate place to bring his action for defamation over the publications complained

Given my decision on s.9 jurisdiction, this Application has become academic. Nevertheless, as the points raised have been argued fully and as it is a point of some importance to defamation practice, I will set out my decision.

Mr Tomlinson QC’s argument, put shortly, is that, as the Claimant clearly believed that the Defendant was domiciled outside the countries identified in s.9(1) (albeit mistakenly that he was domiciled in Japan), the Claimant was under an obligation to seek the Court’s permission even to issue a Claim Form. He submits that s.9 is mandatory in its terms: the Court “does not have jurisdiction”, unless the requirements of s.9(2) are satisfied. A claimant who knows that s.9(1) applies cannot issue a Claim Form without satisfying the Court that it has jurisdiction, i.e. s.9(2) is satisfied. Upon this analysis, the Claimant was duty-bound on as ex parte application, to alert the Master to the alleged want of jurisdiction over the claim under s.9.

This argument is novel, but in my judgment, it is wrong for the following reasons:

Having rejected Mr Tomlinson QC’s submissions as to the need to obtain the Court’s permission to serve out, the balance of the objections to the hearing before Master Thornett also fall away:

For these reasons, had it required determination, I would have refused the Set-Aside Application. I do not consider that there was any material non-disclosure. s.9 was irrelevant to the application that Master Thornett was asked to determine.