In Ames & Anor v The Spamhaus Project Ltd & Anor [2015] EWHC 127 (QB), the High Court was dealing with an application by the defendants for an order dismissing all of the claims or summary judgment as well as a cross-application for permission to amend the statement of case. Warby J described this as ‘a case about spam‘, which may be true in relation to the broader proceedings but the main issues covered on the application to which judgment at this stage applies were whether the proceedings amounted an abuse of process, whether the claimants had a significant reputation in England and Wales, the extent of publication within the jurisdiction and whether the claimants had suffered or are likely to suffer any or any substantial or serious harm as a result of the alleged wrongs.
Background
The claimants are two entrepreneurs, Craig Ames and Robert McGee, who are both resident in California. Between them they set up and until about December 2013 were involved with a bulk email marketing services business, initially through a US corporation called Blackstar Media LLC, and latterly as employees of Blackstar Marketing. SCL readers will be familiar with the first defendants, the Spamhaus Project, which tracks and reports on sources of spam on the internet. The second defendant, Stephen Linford, is the founder of the Project and its chief executive.
Between December 2013 and May 2014, the claimants were named as spammers, and for most of this period were on the first defendant’s Register of Known Spam Offenders and at the top of its list of the Top 10 world’s worst spammers. Addresses relating to the claimants and a photograph of Mr McGee were also published by the Project. The claimants claim that the words used were libellous of them, and that the disclosure of their addresses was a misuse of private information. Mr McGee complains that the reproduction of the photograph was an infringement of copyright. The claimants claim damages and injunctions.
Law
Warby J considered the Jameel jurisdiction (see Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946), essentially the issue of whether a real and substantial tort had been committed within the jurisdiction. This was relevant both to the defamation claim and the claims relating to misuse of private information and breach of copyright.
The proposition expressed by Simon J in Karpov v Browder was broadly endorsed by Warby J:
‘A claimant may be able to show a reputation sufficient to demonstrate a real and substantial tort within the jurisdiction in cases where, although he had no reputation at the time, such reputation was created and destroyed by the publication. However such cases will usually arise where he or she has some form of prior or imminent connection with the jurisdiction.’
‘A publisher is responsible for damage caused by republications which are the natural and probable or reasonably foreseeable consequence of its own publication, and it is a feature of the internet that material once published may remain accessible for a considerable time, even if removed from the original site.’
As Warby J pointed out, the Spamhaus Project’s words were republished on a number of third party sites and on Google and remained on third party sites for months after the Project had taken down the relevant postings (indeed, snippets were stored and remained available via search engines for a lengthy period, and the content is archived and remains accessible via the Internet Archive and Wayback). Warby J stated (at [47]) that:
‘It is also important to bear in mind that in a world of globalised business and swift, easy and cheap international communications a business person can more easily build up a reputation in a foreign place without visiting it, and the creation of a bad reputation in a foreign place is more likely to be of significance.’
The Defamation Act 2013, s 1, that ‘A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant’ was then considered. That requirement does not replace the Jameel tests but is an additional barrier.
Decision
Having reviewed the facts, Warby J concluded (at [92]) that each claimant had a real prospect of establishing that publication of the words complained of within the jurisdiction during 2014 has caused serious harm to his reputation:
i) The claimants may very well establish that the website publication bore the meaning they complain of, or a similar meaning, not only to readers of the Main Info and other sub-pages on the Spamhaus site but also to anyone who read the main ROKSO list or Top Ten list pages, and to those who read the republications of the sting of the Spamhaus allegations on third party websites.
ii) Such meanings impute unlawful conduct in the course of business and, in the case of the full pleaded meaning, seriously unlawful, deceitful conduct over a period of years. That is inherently seriously harmful to reputation, that is to say it has a tendency to cause serious harm to reputation.
iii) The communication of that meaning is likely in every sense of the word to deter the reader from dealing with or associating with the claimants, provided the reader believes the meaning conveyed to be true.
iv) On present evidence, what Spamhaus says about those on the ROKSO and Top Ten lists is very likely indeed to be taken as true and relied on by readers, except perhaps by those so close to and trusting of the claimants that they would know or believe the allegations to be untrue. It is common ground that Spamhaus is considered authoritative and reliable. The republications relied on by the claimants support that view. The defendants’ own evidence makes clear that Spamhaus customers or readers rely and act on information provided by Spamhaus, when it comes to the claimants.
v) It is not possible to say at this stage that there was only insubstantial publication within the jurisdiction of these seriously harmful allegations. The extent of publication within the jurisdiction for which Spamhaus is responsible has yet to be fully established. There has been no disclosure. The defendants initially gave false evidence about their ability to identify the scale of publication. Their key evidence on this issue was served only shortly before the hearing, and involved a mass of material. It is not a satisfactory basis for concluding that the maximum number of relevant readers is, as they maintain, some 176. There are legitimate questions raised about the reliability of that figure, and there is reason to believe that an exercise less rushed than this one seems to have been would identify additional publishees.
vi) Moreover, there are those who read the claimants’ names on the ROKSO or Top Ten lists but did not delve further. There may have been more than 2,300 of these. It is not fanciful to suggest that the relevant audience includes these publishees. Beyond this there are the republications complained of, made in at least some cases on apparently authoritative websites, though again the extent to which these flowed from and were made within this jurisdiction is as yet uncertain. (I leave out of account the Internet Archive).
vii) It is not possible to say, either, that publication in this jurisdiction was clearly inconsequential. I accept Mr Helme’s submission that the third parties whose adverse reactions are described in Mr Ames’ statement were, as a matter of inference, abroad or Mr Ames would have said otherwise. I do not accept, however, that the fact that the claimants cannot identify people who read the words here and thought the less of them leads to the conclusion that no such people exist. Mr Helme is on firmer ground with his submission that I should be suspicious of the claimants’ case and evidence about the impact of the publication on their business interests here.
viii) I agree that seriously harmful allegations about a person may not cause “serious harm” to reputation if they are made to people whose opinion of the claimant is of no consequence to the claimant. I agree also that the claimants’ conduct of the email correspondence raises real suspicions about the validity of their present case that the publication caused serious harm. However, though they are foreign, the claimants do have past and present business connections here that their evidence suggests may be substantial and material. I have in mind in particular their roles as managers within Blackstar Marketing for what I understand to be some 18 months (from April 2011 to December 2013), at a time when the company was conducting email marketing for UK businesses. This could turn out to lack significance but it is not obviously insubstantial.
ix) As importantly, or more so, the claimants say they wish and intend to do business here in future, and are on the verge of launching a start-up business with a UK presence. Again, the claimants have questions to answer about this new venture. It may prove that this does not in fact have the significance which it presently appears it may have. But I cannot simply reject their evidence on these issues. It is not obvious at this stage that there is a bright line between the readership of the Spamhaus website and those whose opinion of the claimants could be of real significance for their business prospects. Already, the claimants are able to identify among the publishees a number of ISPs, a newspaper publishing company, and a company with which they have previously done substantial business. They attribute significance to these publishees and are not obviously wrong to do so.
x) In my judgment, therefore, although they might fail on the issue after full disclosure and a full examination of the evidence, the claimants have a real prospect of establishing that those within the jurisdiction who read and are likely to have believed the words complained of (and the republications of their sting) include people whose opinion of the claimants is of serious consequence to them and their business prospects. Proof of that much could be sufficient to establish that serious harm to reputation has been caused, even if no such individual was called to give evidence.
