Defamation in the cyber age. Where should your digital reputation be tried?

The matter of Wright v Ver [2020] EWCA Civ 672 is interesting for its periphery issue: whether the claimant and appellant, Dr Wright, is Satoshi Nakamoto, the pseudonymous inventor of Bitcoin. However, while the Court was not asked to address this question and does not do so, the dispute is also interesting for the questions it raises about jurisdictional issues that a claimant may face when alleging defamation over a statement published in digital form. Following Wright, litigants involved in similar actions may want to consider both the significance and proper interpretation of any web analytics data available for purportedly defamatory remarks, as these could be influential when the court is asked to determine issues of jurisdiction.

Dr Wright is a computer scientist interested in cryptocurrencies. He claims to be the creator of Bitcoin under the pseudonym Satoshi Nakamoto. Mr Ver is a Bitcoin investor and a commentator on cryptocurrencies. While the two men previously enjoyed good relations, they formulated competing visions for the development of Bitcoin and fell out in late 2018.

In 2019, Dr Wright brought a claim against Mr Ver for libel in response to a YouTube Video posted on the Bitcoin.com YouTube channel and a tweet from Mr Ver’s Twitter account. The allegedly defamatory aspect of these posts was innuendo to the effect that Dr Wright had fraudulently claimed to be Satoshi Nakamoto, which Dr Wright claimed had damaged the integrity of his professional and personal reputation in the UK.

While the YouTube video and tweet were publicly accessible to readers all over the world, Dr Wright, an Australian national and citizen of Antigua and Barbuda who now lives in Surrey, claimed for the damage done to his reputation in this jurisdiction alone on the basis that his life is now in England. Proceedings were accordingly brought in England against Mr Ver, a former US citizen and current citizen of St Kitts & Nevis who lives in Japan.

As the defendant was not domiciled in the UK (or an EU or Lugano Convention state), the burden fell on Dr Wright to satisfy the 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 respect of the statement”¹ .

At first instance, however, Nicklin J observed that the most substantial publication of the statements complained of occurred in the US, where the number of subscribers or followers for the YouTube channel and Twitter account concerned was roughly four times that of the UK. He added that Mr Ver’s comments were not in any way targeted at readers in England and Wales but addressed to the global Bitcoin community.

In the judgment, the court found that Dr Wright had not adduced objective evidence of harm to his reputation in England and Wales and had failed to address whether and to what extent the publications complained of had harmed his reputation in other jurisdictions. In consequence of these findings, it held it had no jurisdiction over the matter under section 9 of the Defamation Act 2013. Nicklin J stated that Dr Wright had failed to demonstrate to the court that England and Wales was clearly the most appropriate place to bring the claim and noted that he did not need to resolve the issue of whether the US was the most appropriate jurisdiction for Dr Wright to bring it.

On appeal, the Court of Appeal accepted Dr Wright’s submission that the judge at first instance ought to have confronted the evidence Dr Wright presented on his (lack of) ties to the US and that it was possible to assess whether the US was the most appropriate jurisdiction for the claim to be brought in. However, it then went on to reject Dr Wright’s appeal by following the approach taken by the court below, as set out in the 2015 case of Ahuja v Politika Novine I Magazini DOO & others [2015] EWHC 3380 (QB); [2016] 1 WLR 1414.

Referring to Ahuja, Dingemans LJ, writing for the Court of Appeal in Wright, stated that in order to determine whether England and Wales was clearly the most appropriate place for a defamation claim to be heard, the Court was required to assess a number of different factors. These included:

1. The best evidence available to show all the places (or jurisdictions) where the relevant statement was published.
2. The number of times the statement was published in each of the jurisdictions.
3. The amount of damage done to the claimant’s reputation in England and Wales as compared with elsewhere.
4. The jurisdiction the publication was targeted at.
5. The availability of fair judicial processes in other jurisdictions where publication occurred and any factors that may impact access to justice such as language barriers.
6. The remedies available in other jurisdictions and the cost of proceedings there.
7. The location of likely witnesses.

Dingemans LJ observed that the list was non-exhaustive and will be fact specific. However, evidential issues in both the instant matter and in Ahuja in respect of points (b) and (c), above, should prompt litigants contemplating defamation claims that may engage multiple jurisdictions to consider carefully what any web analytics data available on international publication rates might mean.

In his assessment of Dr Wright’s claim, Dingemans LJ set out, as the first of eight factors he deemed relevant to the issue of jurisdiction in the matter, that “the evidence shows that there were about four times as many publications of the YouTube channel and tweets in the US as there were in the UK”. He noted that this reflected Mr Ver’s evidence that the reach of the YouTube channel and Twitter account was centred on the United States, and that “this evidence strongly suggests that a state in the US is likely to be the most appropriate jurisdiction in which to bring the claim”.

While the data cited by Dingemans LJ as evidence of the number of publications in each jurisdiction does indeed reveal a difference between the UK and the US, Nicklin J made two further points in his judgment below regarding these data.

Firstly, “figures are not available for the number of times the YouTube Video was watched”. Rather, the data considered was derived from the total views of the Bitcoin.com YouTube channel which hosted the video concerned. Secondly, the Twitter figures cited were the number of active followers of Mr Ver’s Twitter account in the UK and in the US at the time the tweet was published, and therefore, as Nicklin J observes, “These figures would represent the maximum number of publishees on Twitter”. Neither sets of data reveal how many people in each jurisdiction actually saw, read or heard the statement complained of.

The same issue arises in Ahuja in the section of the judgment headed “The number of readers of the words complained of”. There, the claimant’s initial evidence refers to the aggregate number of daily accesses to the news websites concerned and not access to any specific article. In his judgment, Tugendhat J notes that this evidence gives an inaccurate impression of the number of hits on the articles.

Criticisms levelled by the claimant in Ahuja at the defendant’s UK analytics data were ultimately found by Tugendhat J to affect the data from other countries too. They therefore did not materially affect the question of whether England was clearly the most appropriate forum. However, Tugendhat J notes that the state of the evidence suggests that the claimant ought to have sought written evidence of how many hits there were on the articles.

From Tugendhat J’s observations and analysis in Ahuja, it seems reasonable to believe that data going to the number of individuals that have actually viewed a statement complained of could potentially be influential when the court is asked to determine jurisdiction.

Arguably, it was unnecessary for Dingemans LJ to refer to Nicklin J’s provisos on the data in the Court of Appeal’s judgment in Wright, given some inferences were possible and that the likely extent of publication of the content concerned was considered common ground in the matter. Moreover, the Court of Appeal had to approach jurisdictional issues on the basis of a comparative assessment of the potential number of publications in each jurisdiction (point (b) in Dingemans LJ’s list of factors), rather than the extent of any harm done (point (c)), because of the apparent lack of evidence of harm put before the court.

Of course, issues of reach and harm are not unique to digital publications. Defamation claims in conventional print media can present similar challenges. The court may have data before it that reveals how many copies of a magazine were printed, yet it may not know how many people received it or went on to read a defamatory statement contained therein.

The Court of Appeal’s judgment in Wright has not changed the law of defamation and furthermore notes that the statutory question on jurisdiction remains only whether it can be shown that England and Wales is clearly the most appropriate jurisdiction in which to bring the action. However, given the thrust of its judgment and that of the court below, litigants contemplating similar actions should reflect on the significance of any international publication data available for a purportedly defamatory statement. In a digital world, international subscribers can be picked up by the mere click of a “Follow” button. Multiple jurisdictions can therefore be engaged with ease long before any defamatory statement may be made. Moreover, a purportedly defamatory statement may be published via a channel long after any true international interest in the channel has receded. Subscriber and follower data in particular may be skewed by legacy content or historic user behaviour, resulting in it being a poor indicator of actual reach, readership or harm.

On the facts, it seems unlikely that a more informed analysis of the analytics data in Wright would have done much to compensate for the shortcomings the court identified. However, the potential importance of analytics data to a court’s findings on forum ought to make parties involved in defamation claims which raise questions of jurisdiction consider carefully how such data should properly be interpreted, contextualised and presented.

¹ Section 9(2) of The Defamation Act 2013.