Harry Stedman v SYZTMZ & Ors

Permission to serve a claim out of the jurisdiction requires a good arguable case within a jurisdictional gateway, a real prospect of success, and England and Wales to be the proper forum. The burden remains on the claimant.

In defamation claims against online platforms, a platform is not a primary publisher merely because it hosts or enables user content. Effective control, knowing involvement, authorisation, or ratification must be shown. Continued hosting after notification requires sufficiently specific notice identifying the statements and explaining their defamatory and unlawful nature.

Under Defamation Act 2013, s.10, jurisdiction is unavailable against a person who is not author, editor or publisher where it is reasonably practicable to sue the author. Identification of that author is sufficient; difficulty enforcing judgment is irrelevant.

The claimant brought principally a libel claim concerning livestreams published by the first defendant on the Kick platform. He also alleged harassment and sought to hold Medium Rare NV and Kick Streaming Pty Limited responsible for the publications.

Medium Rare NV applied to challenge jurisdiction and to set aside permission for service. Kick made a similar application, relying on s.10 and s.5 of the Defamation Act 2013, common-law publisher principles, and Regulation 19 of the E-Commerce (EC Directive) Regulations 2002. The claimant sought to amend the identity of the second defendant and to pursue the claims against the corporate defendants.

The issues included anonymity for the first defendant, jurisdiction over the corporate defendants, publisher status, the effect of post-notification hosting, and the viability of the harassment claim.

1. Anonymity. Anonymity or pseudonymity derogates from open justice and interferes with Article 10 rights. It requires clear and cogent evidence of necessity and proportionality. Credible evidence of threats justified allowing the first defendant to remain sued under his pseudonym. The claimant’s application to substitute his real name was refused.
2. Medium Rare NV. The company named as the second defendant was a different English company with no connection to the dispute. Permission to serve it by alternative means was set aside. Permission to amend the claim to substitute Medium Rare NV was refused because the claimant had no viable claim against that company.
3. Jurisdiction and publisher status. Applying Soriano, the claimant had to establish a good arguable case within a gateway, a real prospect of success, and England and Wales as the proper forum. Under s.10 of the Defamation Act 2013, Medium Rare NV was not author, editor or publisher. Kick was not a publisher of the original streams under s.1(3)(e) of the Act because it lacked effective control over the streamer’s content.
4. For continued hosting, the claimant could not show a real prospect of establishing liability under Byrne v Deane or Tamiz v Google. His complaints were general, did not identify the particular statements, and did not explain why they were defamatory or untrue. It was reasonably practicable to sue the first defendant, who had been joined and was participating in the proceedings. The claimant’s concerns about enforcement and domicile did not alter the s.10 analysis.
5. Kick also appeared to have a defence under s.5 of the Defamation Act 2013, since the first defendant, rather than Kick, posted the statements and the claimant could identify him. Regulation 19 of the E-Commerce (EC Directive) Regulations 2002 also meant that the harassment claim against Kick had no real prospect of success, because the claimant had not given notice of potential harassment before the material was removed.
6. The court therefore refused the amendment, set aside permission to serve Kick out of the jurisdiction, and dismissed the claim against Kick. The claim against the first defendant and his counterclaim remained. Consequential orders and any application for permission to appeal were adjourned.

Not stated in the judgment.