England and Wales’ courts may be less open to international libel litigation following a Court of Appeal ruling which interprets legislation against ’libel tourism’. In Craig Wright v Roger Ver, the court upheld a decision by the High Court that England and Wales was not the appropriate place to hear a defamation action against claims published on social media by a US-born citizen of St Kitts & Nevis now resident in Japan.
The ruling was based on Section 9 of the Defamation Act 2013, which requires the court to be satisfied that England and Wales is clearly the most appropriate place in which to bring an action. The measure was introduced following a spate of cases brought by overseas claimaints against publications with only small circulations in England and Wales. In the most notorious example, the fugitive American film director Roman Polanski, while resident in Paris, successfully sued a US magazine Vanity Fair in London.
The Court of Appeal decision concerns a falling-out between two figures in the cryptocurrency community over claims about the identity of ‘Satoshi Nakamoto’, the name under which the Bitcoin currency was first described. The claimant, Dr Craig Wright, an Australian resident in England, brought proceedings against Roger Ver over posts on YouTube and Twitter accusing him of falsely claiming to be Nakamoto. A claim form was served in person on Ver while he was visiting London. Last year, Mr Justice Nicklin ruled that the High Court had no jurisdiction under s9.
The appeal heard that Wright was now a resident of England, had a 'close, settled, connection' with the United Kingdom and had a reputation to protect there. Wright submitted that the judge had set him an impossible task by requiring him to adduce evidence of actual harm to his reputation in each candidate jurisdiction.
In lead judgment, Lord Justice Dingemans said that under s9 of the 2013 act the choice of jurisdiction depends on the domicile of the defendant. 'It is plain that a person domiciled in England and Wales may find it easier to show that the jurisdiction of England and Wales is clearly the most appropriate jurisdiction to bring the claim, but the position may not be so straightforward with persons who have moved to this jurisdiction or who have a global reputation.'
Where the defendant is not domiciled in the UK, he said the party bringing the claim will need to satisfy a court, on the balance of probabilities, 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 this case, the reach of the YouTube Channel and Twitter publication was centred on the US. 'This evidence strongly suggests that a state in the US is likely to be the most appropriate jurisdiction.’
His judgment, with which Lord Justice Flaux and Lord Justice Popplewell agreed, emphasises that it does not address the true identity of Satoshi Nakamoto. 'This is because it was not an issue on the appeal.'