Gubarev & Anor v Orbis Business Intelligence Ltd & Anor

In a libel claim concerning republication of a defamatory document, an author is liable for a third party’s republication as a joint wrongdoer only where the author intended or authorised that republication. Mere facilitation, creation of circumstances making republication foreseeable, or reasonable foreseeability alone is insufficient.

For a profit-making body, Defamation Act 2013, section 1(2) requires proof that reputational harm caused, or is likely to cause, serious financial loss. Serious reputational tendency and extensive publication do not by themselves satisfy that threshold. Financial loss and causation may be established by inference, but the inference must rest on a sound evidential basis rather than speculation.

The claimants sued Orbis Business Intelligence Ltd and Christopher Steele for libel arising from publication of the December Memorandum alongside a BuzzFeed article. The memorandum linked Aleksej Gubarev and Webzilla Ltd to hacking and related criminal conduct.

The defendants accepted neither a substantive defence nor the defamatory nature of the publication, but denied legal responsibility for BuzzFeed’s publication. Webzilla Ltd also had to establish serious financial loss under section 1(2) of the Defamation Act 2013. The central issues were meaning, responsibility for republication, and whether Webzilla Ltd had crossed the statutory serious-harm threshold.

1. Meaning. Read as a whole, the BuzzFeed article and December Memorandum conveyed that there were good reasons to suspect the claimants of participating, under duress from the Russian Secret Service, in hacking Democratic Party computers and using the access obtained to transmit viruses, plant bugs, steal data and alter files and software. The meaning was defamatory of both claimants.
2. Serious harm. The court accepted that publication caused Mr Gubarev serious reputational harm. For Webzilla Ltd, section 1(2) required proof of serious financial loss caused, or likely to be caused, by reputational harm. The evidence did not establish that EU publication caused or was likely to cause such loss. The claimed customer evidence was uncertain, the relevant customer was not materially connected with the EU, and the financial records were insufficiently reliable or granular. Inference was permissible, but the claimant had to provide a sound evidential basis rather than speculation.
3. Republication. Applying Speight v Gosnay, Turley v UNITE the Union and Watts v Times Newspapers Ltd, liability for another person’s republication required intention or authorisation, express or implied. The court rejected reasonable foreseeability as an independent criterion of primary liability. A defendant’s conduct might assist in determining intention or authorisation, but causation and remoteness factors were not touchstones of liability.
4. Application. Mr Steele intended confidential dissemination for national-security purposes and did not intend or authorise media publication. His request that Mr Kramer meet Mr Bensinger was exploratory and did not confer authority to provide or copy the December Memorandum. Mr Kramer’s unauthorised conduct and Mr Bensinger’s photography led directly to BuzzFeed’s publication.
5. Disposition. Mr Gubarev’s claim and Webzilla Ltd’s claim were dismissed. Webzilla Ltd’s claim would also have failed for failure to establish serious financial loss under section 1 of the Defamation Act 2013.