A decade of the Defamation Act 2013 – PART 4: Single publication and jurisdiction

Executive summary

• The Defamation Act 2013 came into full force on 1 January 2014.
• The Act reformed defamation law in England and Wales and was designed to strike a balance between the protection of reputation and freedom of expression.
• In a five-part series, we evaluate the Act’s impact on defamation claims during the past decade and consider the findings in key case law within the context of each provision and the effect of litigating defamation claims.
• In previous chapters, we have considered: the introduction of the serious harm test; the defences of truth and honest opinion; and remaining defences such as public interest, privilege and secondary defences, including the defence for operators of websites and peer-reviewed statements.
• In part four, the penultimate in our series, we consider the single publication rule and jurisdiction and the developing jurisprudence.

PART 4 – Single publication and jurisdiction

Section 8 - Single publication rule

Prior to the Defamation Act 2013, any time a particular article was accessed online would constitute a ‘fresh publication’. In practice, this meant that unless an online article was removed from further access, there was indefinite liability for internet publications. To address this, Section 8 of the Defamation Act introduced the ‘single publication rule’ which, in specified circumstances, means a cause of action in respect of a repeat publication by the same person is to be regarded as having arisen on the date of the first publication. The rule comes into effect when a person publishes a statement to the public and subsequently republishes, irrespective if it is to the public, that statement or a statement in substantially the same form. Section 8 replaced the existing multiple publication rule, in which every new publication of a defamatory statement gave rise to a separate claim, subject to its own limitation period.

The introduction of Section 8 was significant given the limitation period for defamation, including both libel and slander, is one year from the date on which the cause of action accrued, this being the date of publication. The creation of the single publication rule was also notable in the context of online publications, which are a prominent feature of today’s disputes in defamation in 2024 following the ongoing growth and expansion of social media. In contrast to the period before 2013, where traditional media publications such as print newspaper articles and television broadcasts were often the platform for defamatory statements to be challenged, defamation claims in the last 10 years have concerned posts on social media such as ‘X’ (formerly Twitter), Instagram and Facebook, blogs, and multi-media messaging platforms such as WhatsApp. Online newspaper and magazine websites, which have a much wider reach than a print edition have also featured in most claims against traditional media defendants. Section 8 now means a complainant can no longer rely upon the ongoing publication online to evade the one-year limitation period, although a court retains a discretion under the law of limitation to dis-apply the limitation period in limited circumstances.

In the decade since the Act was implemented there has been limited litigation on the ‘single publication rule’. In Deman v Associated Newspapers Ltd [2016] EWHC 2819 the Claimant, Suresh Deman, brought libel proceedings in November 2015 concerning an article originally published in the Daily Mail and on the Mail Online website in November 2011 with the claim confined to publication on the website, four years after the original publication of the article. The Court was provided with evidence that confirmed the online article had been accessed in England and Wales after 1 January 2014. However, Mr Justice Eady held the Claimant’s attempt to pursue a claim for the rolling publication of online content after 1 January 2014, had to be considered with Section 8 in mind, and whether or not the article at the centre of the claim predated the commencement of the 2013 Act. In striking out the claim on limitation grounds, the Court ruled the one limitation period expired on 31 December 2014, and the claim was out of time.

The Act does not specifically include Section 8 as one of the Defences. However, in theory a defendant to a defamation complaint concerning a repeat publication of allegations published more than one year after the first publication may be able to rely on Section 8 to defeat the claim, particularly where the publication complained of contains a defamatory statement in substantially the same form as the original publication. To date, a court in England and Wales has yet had to consider this, but should such a claim arise, a court would have to grapple with whether the repeat publication contains a defamatory statement in substantially the same form published in the earlier publication. Depending on the case and relevant factual circumstances, any such matter could be subject to extensive litigation and up to the Supreme Court, as we saw with Serious Harm in Lachaux.

Section 8 does not apply where the style of the subsequent publication of the defamatory statement is ‘materially different’ from the manner of the first publication. To determine this, a court will have to consider the prominence given to the defamatory statement and the extent of the subsequent publication. In circumstances where two publications were online, and a defamatory allegation is not clear in the early publication, but the subsequent publication gives the allegation more prominence, a court may find the substantial publication is ‘materially different’.

A possible conflict arises with the developed position of Section 1 on serious harm. Section 8 requires a claimant to act promptly in pursuing a claim, but for it to succeed, the claimant must show the publication has caused serious harm to their reputation. In certain instances, a claimant may not know the lasting effect of a defamatory publication, and will likely be unable to foresee the eventual impact, and crucially for the success of a claim, evidence possible impact. The possible conflict arises perhaps more prominently with corporate claimants, who may need to wait to see any impact on annual financial results to address the question of whether serious financial loss has occurred.

Section 9 – Action against a person not domiciled in the UK or a Member State etc

Section 9 of the Act established that a court does not have jurisdiction to hear claims from a claimant who is resident outside of the UK, the EU or Norway, Switzerland and Denmark (the Lugano Convention states), unless the claimant establishes that of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action. The effect of Section 9 is that claimants with a tenuous link to England and Wales face an additional hurdle in pursuing litigation in this jurisdiction to seek vindication for damage to their reputation.

Section 9 was the outcome of campaigns concerning ‘libel tourism’, which focused on foreign litigants coming to the courts in England and Wales to pursue defamation claims against foreign publishers in preference to other jurisdictions, particularly if the statement complained of was published more widely in other jurisdictions. The criticism was particularly focused on litigation brought in England and Wales against defendants based in the United States. Defendants had to contend with a different legal procedure, including the legal presumption that defamatory statements were false and which was unlike the procedure in the US, renowned for first amendment protections on freedom of speech and the burden any public figure has to prove that a publication was not only false, but published maliciously and recklessly. In 2010 and prior to the Act coming into force, in the United States, the SPEECH (Securing the Protection of our Enduring and Established Constitutional Heritage) Act unanimously passed the US Congress, which makes foreign defamation judgments unenforceable in US courts if they do not meet US free speech standards.

For Section 9, the court will consider a range of factors in determining whether it is applicable. This includes: the extent of publication in each jurisdiction; the amount of damage to a claimant’s reputation in England and Wales compared to elsewhere; the extent to which the publication was targeted at a readership in England and Wales compared to elsewhere; and whether there is reason to think that a claimant would not receive a fair hearing elsewhere.

Key Section 9 decisions

Section 9 has been the subject of judicial consideration over the past decade, most notably in Huda v Wells & Ors [2017] EWHC 2553 and in the Court of Appeal in Wright v Ver [2020] EWCA Civ 67.

In Huda v Wells, the Claimant, Osteopath Badrul Huda, brought proceedings against four health professionals in Jersey and the State of Jersey concerning a safeguarding report sent to the regulatory General Osteopathic Council (“GOC”), which raised concerns of his treatment of a seriously anorexic woman, referred to as Patient A. The Claimant, who had practices in Jersey, Guernsey and Cornwall, issued proceedings in London for defamation and malicious falsehood. For the purposes of Section 9, the Court had to be satisfied that England and Wales was clearly the most appropriate jurisdiction for the claim. It is established law, restated by the House of Lords (in Berezovsky v Forbes Inc (No.1) [2000] 1 WLR 1004) that a Claimant in a defamation or malicious falsehood claim who obtained permission to serve out of the jurisdiction, has to limit the claim to alleged publications within England and Wales.

The Claimant’s only potentially viable cause of action was the publication of the report to the GOC. The Court held he had no real prospect of establishing publication to anyone else within England and Wales (publications said to have taken place in Jersey were excluded by way of the principle in Berezovsky). Accordingly, Mr Justice Nicklin ruled the Claimant could not bring his claim in England and Wales and that Jersey was the most appropriate forum for the case as the parties were based in Jersey, it was where the Claimant had significant business and reputational interests, and it was likely where witnesses were based.

In Wright v Ver, the Court of Appeal dismissed the Claimant’s appeal on the High Court ruling to strike out his libel claim for jurisdictional reasons. The Claimant, Craig Wright, an Australian computer scientist and businessman and a citizen of Antigua and Barbuda, who is alleged to be the inventor of Bitcoin (under the pseudonym Satoshi Nakamoto) brought libel proceedings against the Defendant, Roger Ver, a bitcoin investor. The claim concerned three online publications, all of which the Claimant asserted held an innuendo meaning he “had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people, who developed bitcoin.” After proceedings were served, the Defendant sought a declaration that the Court did not have jurisdiction to hear the claim under Section 9(2) and that England and Wales was not the appropriate forum. In July 2019, the High Court ruled England and Wales was clearly not the most appropriate place for the Claimant to pursue his claim and that the Court had no jurisdiction. Nicklin J applied a two-stage test: first, assessing the nature and extent of publication in each potential jurisdiction; and second, assessing harm to the Claimant's reputation in each jurisdiction.

The Court of Appeal unanimously dismissed the Claimant’s appeal and observed that in applying a two-stage test, the High Court had not taken the proper approach to Section 9. Instead, the appeal court found that several different factors had to be assessed, including:

• The best evidence available to show all the "places" (i.e. jurisdictions) in which the statement had been published.
• The number of times the statement had been published in each jurisdiction.
• The amount of damage to the Claimant's reputation in England compared to elsewhere. It was possible a publication targeted at particular readers in England could make England "clearly the most appropriate jurisdiction", as such a targeted publication might cause the most serious harm to reputation in England, but this would depend on the evidence.
• The availability of fair judicial processes in the other jurisdictions, the remedies available in those jurisdictions and the costs of pursuing proceedings there.
• Other factors that might impact on access to justice (for example, language barriers).
• The location of likely witnesses.

The list of factors was not exhaustive and the question was fact-specific. The Claimant relied on statistics concerning the number of views and followers for the YouTube channel and Twitter (now known as ‘X’) pages, where two of the publications had been published online. The Court of Appeal found England was not the most appropriate jurisdiction to hear the claim, citing the following reasons:

• There were four times as many publications of the YouTube video and tweets in the US as in the UK.
• The Claimant had a global reputation, showing that his reputation was as likely to be affected in other jurisdictions as it was in England.
• There was a global issue as to whether he was the Bitcoin inventor.
• There was evidence the Claimant’s most important relationships were in the US.
• The Claimant’s links to England were not inconsistent with his global reputation or his links to the US.
• The evidence established the US courts would have jurisdiction over the claim, and the Defendant had consented to the US courts' jurisdiction.
• There was no evidence the Claimant would be unable to obtain an adequate remedy there, that he would have difficulties obtaining access to justice, or that any witness would have difficulty giving evidence.

The impact of Section 9 is clear in that it disincentivises foreign claimants and claimants with tenuous links to the UK from pursuing litigation in England and Wales to vindicate their reputation. As Section 9 leaves little room for flexibility, only valid claims will proceed in this jurisdiction.

Section 10 - Action against a person who was not the author, editor etc.

Section 10 of the Act restricts the court’s jurisdiction to hear an action for defamation brought against a person who is not the author, editor or publisher of a statement complained of, unless it is satisfied it is not reasonably practicable for an action to be brought against the author, editor or publisher.

The definitions of ‘author’, ‘editor’, and ‘publisher’ as in Section 1 of the Defamation Act 1996 are retained in the 2013 Act:

• ‘author’ means the originator of the statement, but does not include a person who did not intend that their statement be published at all
• ‘editor’ means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and
• ‘publisher’ means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.

Section 10 deters a claimant from suing social media platforms for publications by an individual user on a platform, where the user publishing the statement is identifiable. The provision ensures internet intermediaries such as Meta, which owns Facebook and Instagram among others, are protected from defamation claims brought against them for postings by their users. However, this protection is only limited to defamation claims and does not offer protection from other causes of action where they remain vulnerable to suit, such as privacy and data protection claims.

In part one of this series, we considered the case of Brett Wilson LLP v Persons Unknown [2015] EWHC 2628 (QB), a defamation claim brought by a law firm against ‘an individual or group of individuals who [had] established and [ran] a website’. The website, Solicitors From Hell UK, produced its own content and allowed third parties to submit material for it to publish. The then Mr Justice Warby held, on an application for default judgment, it was likely the Defendant would fall outside the term of ‘publisher’ but was within the definition of ‘editor’. Accordingly, the Court was not deprived of jurisdiction by Section 10 and therefore, the operator of the website hosting the reviews submitted by users/third parties, was liable as an editor.

In the fifth and final instalment of our A decade of the Defamation Act 2013 series, we will examine Sections 11-15 and consider the abolition of jury trials, orders for removal of statements, slander and general provisions.

Hamlins’ Media Disputes department is one of the most successful Reputation Management teams in the UK and widely recognised as an advisor of choice for both public and private figures seeking advice in relation to reputation management and pre-publication complaints in defamation and privacy law. If you would like to find out more about how Hamlins can help you, please get in touch.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances. Any reference to US Law is by way of comment and should not be interpreted as claiming qualified knowledge of US law and procedure.