Ames & Anor v The Spamhaus Project Ltd & Anor

A defamation claim concerning publication after 1 January 2014 should ordinarily be assessed first under section 1 of the Defamation Act 2013. The claimant must show a real prospect that publication caused, or was likely to cause, serious reputational harm. Serious harm may be inferred from the allegation’s gravity, the publisher’s authority, the readership, foreseeable republication and the significance of readers’ opinions to the claimant. Direct evidence of adverse reaction is unnecessary.

The exceptional jurisdiction to dismiss a claim as disproportionate survives, but dismissal is inappropriate where a serious and substantial tort is realistically arguable and proportionate procedures remain available. A foreign claimant needs no pre-existing English reputation. Connections with the jurisdiction remain relevant but must be assessed flexibly. The court may also permit reliance on the evidential presumption that unproved foreign law corresponds with English law.

The claimants, entrepreneurs resident in California, alleged that Spamhaus had libelled them by identifying them on its website as leading professional spammers involved in unlawful and deceitful business practices. They also alleged misuse of private information through publication of addresses and copyright infringement through reproduction of a photograph.

The defendants applied to dismiss all claims as an abuse of process or, alternatively, for summary judgment. They relied on the claimants’ limited English connections, the allegedly small domestic readership, the absence of serious harm, cessation of publication and public interest. The claimants cross-applied to extend the libel claim to publication in the United States.

The central questions were whether the claimants had a real prospect of proving serious reputational harm under section 1 of the Defamation Act 2013, whether continued proceedings were proportionate, whether the privacy and copyright claims inevitably failed on public-interest grounds, and whether the proposed United States claim was properly arguable.

1. The defendants’ application was dismissed and the claimants’ amendment application was granted. The claimants had a real prospect of proving that the publications caused serious reputational harm. The allegations imputed sustained unlawful and deceitful business conduct. Spamhaus was regarded as authoritative, so readers were likely to believe and act upon its statements. The extent and identity of the domestic readership, including readers of lists, search results and foreseeable republications, could not reliably be resolved without disclosure and fuller evidence.

2. Section 1(1) of the Defamation Act 2013 imposes an additional threshold above the common-law requirement that words substantially affect attitudes and the Jameel requirement of a real and substantial tort. In a post-commencement claim where reputational harm is said to be too slight, the court should normally address serious harm first. Failure at that stage means there is no tort. Success does not formally exclude the exceptional abuse jurisdiction, but will commonly make it difficult to show that the tort is not real and substantial.

3. A claimant need not produce direct evidence that identifiable readers thought less of them. Serious harm may be inferred from the publication’s meaning, gravity, credibility, extent, readership and probable consequences. A foreign claimant requires no pre-existing English reputation. Existing or planned connections remain relevant, but the assessment must remain flexible and must avoid discrimination based on nationality.

4. The exceptional proportionality jurisdiction did not justify striking out the claims. Where an arguably meritorious claim discloses a real prospect of a serious tort, the court should consider whether case management, preliminary issues, disclosure, costs control or another proportionate procedure can determine it. The disputed evidence could not properly be resolved through findings of dishonesty or a mini-trial on the applications.

5. The privacy and copyright claims were subsidiary but overlapped with the unresolved public-interest issue in the libel claim. Since a public-interest defence to libel could not be held inevitable, the corresponding defences to those claims were not inevitably successful. Their joinder added little distinct cost.

6. The defendants had not given an undertaking against repetition, and Spamhaus’s stated policy supplied sufficient grounds to fear further publication. The injunction claim therefore had a legitimate prospective purpose.

7. The claimants could add a claim concerning United States publication. Under OPO v MLA [2014] EWCA Civ 1277, the domestic evidential presumption that foreign law is the same as English law remains available unless foreign law is put in issue. The amended pleading required only clarification that the added foreign claim concerned United States publication alone.

not stated in the judgment.