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Jameel and the impact of the serious harm test under the Defamation Act 2013

(1) Rob McGee (2) Craig Ames -v- (1) Spamhaus Project Ltd (2) Stephen Linford [2015] EWHC 3408 (QB) OverviewThe High Court has dismissed an application to strike out a libel claim, brought by the (1) Rob McGee (2) Craig Ames -v- (1) Spamhaus Project Ltd (2) Stephen Linford [2015] EWHC 3408 (QB)

Overview

The High Court has dismissed an application to strike out a libel claim, brought by the founders of a bulk email marketing services business against an organisation that had branded them as illegal spammers across various online publications. It was found that the Claimants had a real prospect of demonstrating that the publications may be read by people whose opinions could affect the reputation and future prospects of the business.

The case specifically concerned the principle established in Jameel (Yousef) v Dow Jones and Co Inc [2005] which requires the Court to consider whether a 'real and substantial tort' had been committed. If this question is answered in the negative, the claim is liable to be struck out on the basis that to allow it to proceed would amount to an abuse of the court's process because so little is at stake. In this case the Jameel principle and its importance were reconsidered in the light of the 2013 Defamation Act and the new 'serious harm' test.

Facts

The Claimants were Rob McGee and Craig Ames, two California residents who had founded a bulk email marketing services business.

The First Defendant (which was founded by the Second Defendant) was Spamhaus Project Ltd, a UK organisation that investigates, collates data on and reports internet spam.

Between December 2013 and May 2014, Spamhaus published documents on its website alleging that the Claimants were known spammers, calling their business a "massive snowshoe operation" (a technique used by spammers to spread spam output across many IPs and domains), and placing them on their 'ROKSO' (Register of Known Spam Operations) list, and at the top of their list of the world's worst spammers.

The Claimants asserted that they had substantial reputations in England and Wales, and that Spamhaus also enjoyed substantial influence across these locations. They alleged that the material published by the Defendants bore defamatory meanings, and had caused serious damage to their reputations.

The Defendants applied to strike out the libel claim as an abuse of process pursuant to the Jameel principle. The Defendants argued that the Claimants in fact had no significant reputation in the jurisdiction, that the extent of publication was minimal and had now ceased, and that the publication had not, and would not, cause substantial or serious harm.

The Defendants alternatively sought summary judgment by the court, arguing that the Claimants could not satisfy section 1 of the 2013 Defamation Act as the publication had not caused serious harm to the reputation of the Claimants nor was it likely to do so.

Judgment

Mr Justice Warby explained that the Jameel principle was not abolished by the 2013 Defamation Act, but the requirement that serious harm had been, or was likely to be inflicted took precedence over the requirement that a 'substantial or serious tort' had occurred. In determining whether serious harm had occurred or was likely to occur, the Court must base its decision on a variety of factors including the nature of the statement itself, the gravity of its meaning, the nature and extent of libellous publication, the identity of the publishees, the nature and extent of the claimant's existing connections in the jurisdiction, and the claimant's reputation among those who are likely to have read the statement. Taking these factors into account, Warby J dismissed the Defendants' application to strike out as the Claimants could conceivably establish that serious harm had been caused to their reputation.

Comment

This is the first case to consider the serious harm test alongside the Jameel abuse jurisdiction. The judgment indicates that where the serious harm test is satisfied, it will be unusual for that claim to fall foul of the principle in Jameel. Warby J also held that it is preferable to deal with issues of serious harm by means of preliminary issue rather than a strike out or summary judgment application.

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