Court of Appeal refuses to reinstate Bitcoin libel claim
In Wright v Ver  EWCA Civ 672, the Court of Appeal dismissed the Claimant's appeal against a decision by the High Court to strike out his libel claim on jurisdictional grounds. The case is the first occasion that the Court of Appeal has considered section 9 of the Defamation Act 2013 which limits the ability of claimants to sue defendants based overseas.
The Claimant Craig Wright is an Australian computer scientist and businessman who claims to be the inventor of Bitcoin, Satoshi Nakamato. The Defendant Roger Ver is a bitcoin investor and is currently involved with several bitcoin related projects. The Claimant, who is also a citizen of Antigua and Barbuda, brought libel proceedings against the Defendant in May 2019 in respect of three online publications, all of which he asserted bore the innuendo meaning that he “had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people, who developed bitcoin.”
After being served with proceedings, the Defendant sought a declaration that the Court did not have jurisdiction to determine the claim pursuant to section 9(2) of the Defamation Act 2013 which states:-
A court does not have jurisdiction to hear and determine an action to which this section applies unless the court 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
The crux of the Claimant's case on why England and Wales was clearly the most appropriate place for this claim to be determined was that he had immigrated to the UK with his family from Australia in December 2015, it was where he now spent the overwhelming majority of his time and where the business people with whom he dealt primarily are based.
While the Claimant was under no burden to show that a jurisdiction other than England and Wales was a more appropriate place for the action to be tried, he adduced statistics relating to the number of followers and viewers for the YouTube channel and Twitter feed where two of the publications complained of had been made available online. Such evidence indicated that the highest number of publishees were based in the US, by a considerable margin.
At first instance (Craig Wright v Roger Ver  EWHC 2094), Mr Justice Nicklin agreed with the Defendant that England and Wales was not clearly the most appropriate place in which to bring the libel claim and made the declaration sought by the Defendant, striking out the claim. He said that the approach to determining section 9 should involve a two stage test considering: (1) the nature and extent of the publication and (2) evidence of harm in each jurisdiction. He held that the Claimant's evidence (served by way of seven separate witness statements) fell short in that it failed to address the extent of his global reputation and, more specifically, where he had allegedly suffered most damage by the Defendant's publications. Without such evidence, the Court is somewhat “blindfolded”, and therefore cannot properly satisfy itself that England and Wales is “clearly the most appropriate place” for the action to proceed.
On appeal, the Claimant's lawyers argued that Nicklin J had set the claimant an "impossible task" by requiring him to adduce evidence of actual harm to his reputation in each candidate jurisdiction, and concluding that in the absence of such evidence the Claimant could not satisfy section 9. It was argued that the judge was wrong to say that the Claimant had failed to adduce objective evidence and had left unaddressed the damage to his reputation in other jurisdictions. Furthermore, it was argued that the judge had failed to carry out a comparative analysis of each candidate jurisdiction and ignored evidence which clearly demonstrated that England and Wales was the most appropriate forum.
On behalf of the Defendant it was argued that Nicklin J's approach was correct and that the Claimant had failed to adduce relevant evidence to permit the judge to properly address the matter, but that in any event on a proper analysis England and Wales was not clearly the most appropriate place in which to bring an action.
The Court of Appeal (Flaux, Popplewell LLJs with Dingemans LJ giving the lead judgment) unanimously dismissed the appeal. In doing so, it observed that a two-stage test was unlikely to assist in many cases. Whilst the nature and extent of the publication and reputational harm were relevant (and possibly decisive) factors, there were other factors and "...the statutory question remains only whether it can be shown that England and Wales is clearly the most appropriate jurisdiction in which to bring this action." It concluded that the evidence showed that England and Wales was not "clearly the most appropriate" jurisdiction to hear the claim for the following reasons:-
- The evidence showed there were about four times as many publications in the US as there were in the UK.
- The judge's finding that the Claimant had a global reputation was clearly established by evidence. This showed that the Claimant's reputation was just as likely to be affected in other jurisdictions where publication took place, as it was in England and Wales.
- The evidence showed that there was a global issue about whether the Claimant was the inventor of Bitcoin, and that he had registered himself as the copyright owner of a 2008 academic paper in the US Copyright Registry.
- The evidence before the Court about the Claimant's business relationships strongly suggested that his most important relationships were in the US.
- The company the Claimant was employed by, nChain Limited, whilst a UK company, was part of a group of companies based in more than one jurisdiction. Until recently, the CEO had resided in the US.
- The evidence about the reputation established by the Claimant in this jurisdiction was correctly described by the judge as a "segment of his global reputation".
- The evidence established that the Courts in the US would have jurisdiction over the claim. The Defendant had consented to the jurisdiction of the US Courts. There was no evidence suggesting that any state in the US which would accept jurisdiction would not be able to provide the Claimant with an adequate remedy or that the Claimant would have difficulties in obtaining access to justice in any state in the US beyond his "unexplained hearsay assertion that he had been told that it would be difficult".
- There was no evidence that any relevant witness would have difficulty in providing evidence in any state in the US.
Having considered the factors, the Court concluded that not only was England and Wales not "clearly the most appropriate place to bring this action for defamation", but that on the evidence before Nicklin J that a state in the US which would accept jurisdiction over the claim (which included California) would be the most appropriate jurisdiction.
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