High Court clarifies jurisdiction and the limits of liability for intermediaries in libel claims

The decision in Wei & Ors v Long & Ors [2025] EWHC 158 (KB) is only the second scenario in which the Court has determined a challenge to jurisdiction under section 10 of the Defamation Act 2013 (the Act), and the first time that the Court has considered whether a domain name registrar (who is not also providing web hosting services) is a publisher at common law (whether primary or secondary).

Background

The case stems from what is alleged to be a cross-border, in-person and online harassment and defamation campaign. After the Fourth Claimant rejected the First Defendant’s marriage proposal and began dating the Third Claimant (the son of retired Chinese legal scholar (The First Claimant) and a Beijing lawyer (The Secon Claimant)), the First Defendant allegedly launched an international stalking and online harassment campaign. He is accused of repeatedly appearing uninvited at the homes of the First, Second and Third Claimants in England, and the Fourth Claimant in Ukraine, while flooding three websites; 6park.com, Wenxue City, and FishandChips.fans, with hundreds of defamatory posts. The posts accused the First and Second Claimant of criminal conduct, attacked the Third and Fourth Claimant’s characters, and leaked personal data, including details of three Manchester properties owned by the family and photos of the Third Claimant’s vehicles. The Claimants argued this conduct damaged their reputations and directly caused the Second Claimant’s October 2022 heart attack, subsequent depression, and inability to work, culminating in a £950,000 damages claim.

Claims against the intermediary

The claimants brought claims against three American companies they described as “the operators” of the three websites (The Second, Third and Fourth Defendants), seeking financial penalties and removal orders of the defamatory content under section 13 of the Act.

The Claimants’ case against the Fourth Defendant was that it was responsible for the defamatory posts on the fishandchips.fans website, because it had, “provided the platform to publish and disseminate the defamatory statements and articles”, “condoned the continued dissemination of defamatory statements, over a period of four months”, “turned a blind eye” and “never took any monitoring measures”.

The Claimants were granted permission to serve out of jurisdiction as the Fourth Defendant is based in the state of Oregon. The Fourth Defendant bought a jurisdictional challenge under Section 10 of the Act on the following grounds:

That they were not the “author, editor or publisher” of the words complained of and the original author was known. Accordingly, under section 10(1) of the Act, the Court would only have jurisdiction to hear and determine the defamation claim against them if it was satisfied that it was not reasonably practicable for an action to be brought against the author, editor, or publisher (i.e., the First Defendant); and

That they were not the publisher of the words complained of at common law, such that the order permitting service out of the jurisdiction should be set aside.

Author, editor or publisher

The definitions of these terms for the purposes of section 10 are derived from the Defamation Act 1996 (‘the 1996 Act’), which provides that:

an author is the originator of the statement, not including a person who did not intend that their statement be published at all;
an editor is a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and
a Publisher is a commercial publisher who issues material containing the statement to members of the public in the course of their business.

A person is excluded from being considered the author, editor, or publisher of a statement under section 1(3)(e) of the 1996 Act if their involvement is limited to acting as the operator of, or provider of access to, a communications system by means of which the statement is transmitted or made available by another person over whom they have no effective control.

The Fourth Defendant is a domain name registrar, and the fishandchips.fans domain name was registered using the Fourth Defendant’s services. While the domain name was used to direct traffic to the http://fishandchips.fans website, the Fourth Defendant did not provide hosting services for this domain. As with many domain name registrars, its role was limited to registration and not the hosting or management of website content. Consequently, the Fourth Defendant had no control over, or non-public knowledge of, the use the domain name was put to, including whether or not any specific content is posted on the domain name. Given the above, the Fourth Defendant was clearly not the author, editor or publisher. The exclusion in section 1(3)(e) further confirmed this position.

The only scenario in which the court would have jurisdiction to determine a claim against the Fourth Defendant under section 10(1) was if it was satisfied that it would not be reasonably practical for the claimants to bring a claim against the author, editor, or publisher. The author was the First Defendant in this claim, and the claimants had obtained a default judgment against him in related libel proceedings. Accordingly, the Court had no jurisdiction to hear the claim against any other party under section 10.

Publisher at Common Law

To be liable as a “primary publisher” a person must be shown to have “knowing involvement in the publication of the particular words”. It is insufficient that a person “merely plays a passive role in the process”: Monir v Wood [2018] EWHC 3525 (QB) from [133] to [194] at [135ii)], citing Bunt v Tilley [2007] 1 WLR 1243 at [22]-[23].

A secondary publisher (for instance, the distributor of defamatory copies of a magazine) but not a primary publisher, can invoke the common law defence of “innocent dissemination” if they can show that they:

(a) did not know of the defamatory statement;

(b) had no reason to know of the defamatory statement; and

The fundamental distinction between a primary and secondary publisher is “knowledge that a publication contains some defamatory matter and the ability to control its publication or continued publication” (Monir at [178]). The Claimants argued that when the Fourth Defendant suggested in correspondence that it may be able to deregister the domain name, this constituted evidence of both knowledge of and control over the content. The Court was not convinced. The only way the Fourth Defendant had any control over the defamatory content was to deregister the domain, which would render the whole website impossible to find. Counsel for the Fourth Defendant offered the analogy of defamatory comments posted under a YouTube video, where an entity in the Fourth Defendant’s would have the technical ability to suspend the entirety of YouTube, but could not selectively remove individual defamatory comments underneath a given video.

The authorities put forward by counsel for the Fourth Defendant made the point that even passive, non-hosting internet service providers and search engines that automatically publish snippets are considered “mere facilitators” and not secondary publishers at common law (as per: Bunt and Metropolitan Schools International v DesignTechnica [2011] 1 WLR 1743.)

The Court accepted that the Fourth Defendant could not possibly be a publisher, primary or secondary (whether or not on notice) at common law. In such circumstances the Court found that the Claimants were unable establish the requisite case to meet the merits test for service out under CPR 6.37. It granted the Fourth Defendant a declaration of non-jurisdiction and set aside the order allowing the Claimants to serve the Claim Form on the Fourth Defendant outside the jurisdiction.

Also in issue was whether an order under section 13 of the Act could be made against the Fourth Defendant, compelling it to remove the defamatory content posted to the fishandchips.fans website.

Section 13 Order

Section 13 of the Act states:

“13. Order to remove statement or cease distribution etc

(1) Where a court gives judgment for the claimant in an action for defamation the court may order –

(a) the operator of a website on which the defamatory statement is posted to remove the statement, or

(b) any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement”.

Removal Order under Section 13(1)

The Court clarified that as far as an order under Section 13(1)(a) is concerned, if a person is not the ‘operator of the website’, theoretically able to enjoy a defence under section 5, they will not be a operator of a website for the purpose of section 13 either.

The Fourth Defendant had no ability to identify the poster of the defamatory statements on the website, let alone the power to remove the defamatory material. In such circumstances, the Fourth Defendant could never avail itself of the section 5 defence and so cannot be the subject of an order under section 13(1)(a) (this case is distinguished from those where orders under s.13(1)(a) have been made against website operators, such as in Summerfield Brown Ltd v Waymouth [2021] EWHC 85 (QB) (against Trustpilot) and Blackledge v Person(s) Unknown [2021] EWHC 1994 (QB) (against Google) (see our blog here).

An order under section 13(1)(b) is yet to be made by the courts. The judgment indicated that such an order is intended to apply to secondary publishers at common law (which for the reasons covered above, the Fourth Defendant was not).

The decision therefore provides welcome clarity to intermediaries on the definition of “operator of a website” for the purpose of defamation proceedings, reinforcing that only those with the ability to remove content risk exposure to section 13 orders, while purely technical facilitators remain outside the ambit of liability.