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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Ames & Anor v The Spamhaus Project Ltd & Anor  EWHC 127 (QB) (27 January 2015)
Cite as:  WLR 3409,  EWHC 127 (QB),  EMLR 13,  1 WLR 3409,  WLR (D) 51
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| CRAIG AMES
|- and -
|THE SPAMHAUS PROJECT LIMITED
Ian Helme (instructed by Olswang) for the Defendants
Hearing date: 12 December 2014
Crown Copyright ©
Mr Justice Warby:
"Many of these spam operations pretend to operate 'offshore'. Those who don't hide behind anonymity pretend to be small 'ISPs' themselves, claiming to their providers that the spam is being sent out not by them but by non-existent 'customers'. When caught, almost all use the age-old tactic of lying to each ISP long enough to buy a few days or weeks more of spamming and when terminated simply move on to the next ISP already set up and waiting.
For qualified Law Enforcement Agencies Spamhaus provides a special version of this ROKSO database which gives access to records with evidence, logs and information on illegal activities of many of these gangs, too sensitive to publish here."
The list of names on the ROKSO page contains hyperlinks that allow the user to click through to a number of other pages which contain further information about the named individuals and organisations.
"Up to 80% of spam targeted at Internet users in North America and Europe is generated by a hard-core group of around 100 known professional spam gangs . This TOP 10 chart of ROKSO listed spammers is based on those Spamhaus views as the highest threat, the worst of the career spammers causing the most damage on the internet currently. Spamhaus flags these gangs and individuals as a priority for Law Enforcement Agencies".
"Blackstar Media/Rob McGee/Craig Ames United States. A major league snowshoe operation, spamming for years, morphing constantly, falsified records, scads of domains."
The claimants' case, not disputed at this stage of the proceedings, is that "scad" is shorthand for a "scam ad" or fraudulent advertisement.
"run an internet business which makes use of falsified records, fake companies, scam advertising and constantly changing identities to conceal and pursue its unlawful activities, and as such they should be a priority target for law enforcement agencies".
It was said that the publication was "plainly likely to cause serious damage to the reputation of our clients." The letter complained also of publication of the claimants' personal and private information in the form of their "home addresses".
The claims are issued
The defendants' application
"(a) the claimants have no significant connection to this jurisdiction and do not have a substantial reputation to protect here, and therefore cannot establish a real and substantial tort within this jurisdiction
(c) the claim in libel is otherwise an abuse of process as it does not serve the legitimate purpose of protecting the claimants' reputations and/or there is no realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources".
The Jameel jurisdiction
"Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, in so far as it is possible to do so. Keeping a proper balance between the article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged."
It is these concluding words that are the source of the first part of para (c) of the defendants' application notice.
"29. .The mere fact that a claim is small should not automatically result in a court refusing to hear it at all. If I am entitled to recover a debt of £50 I should, in principle, have access to justice to enable me to recover it if my debtor does not pay. It would be an affront to justice if my claim were simply struck out. The real question, to my mind, is whether in any particular case there is a proportionate procedure by which the merits of a claim can be investigated. In my judgment it is only if there is no proportionate procedure by which a claim can be adjudicated that it would be right to strike it out as an abuse of process.
When in future a judge is confronted by an application to strike out a claim on the ground that the game is not worth the candle he or she should consider carefully whether there is a means by which the claim can be adjudicated without disproportionate expenditure."
Connections with this jurisdiction
"In Multigroup Bulgaria Holding AD v Oxford Analytica Ltd Eady J expressed the view that an article defaming an identifiable individual would give rise to a cause of action even where no one reading the article had prior knowledge of the victim. While we are unaware of any authority that supports this proposition, it seems to us that it makes sound sense. There seems no reason in principle why a newspaper should not simultaneously create and besmirch an individual's reputation."
"To take an extreme example, imagine that an unknown American who was about to visit an English town was erroneously described in the town's local paper as a paedophile. Manifestly the law ought to afford him a cause of action in libel.
It follows that where a statement is published to a reader that is defamatory of an identifiable individual, it will not be possible for the publisher to prove that no damage has been caused to the individual simply by showing that the reader did not know the individual."
Although the court did not say so in terms (it was dealing here with a different issue) it would plainly have regarded this example as involving a real and substantial tort.
"A claimant may be able to show a reputation sufficient to demonstrate a real and substantial tort within the jurisdiction in cases where, although he had no reputation at the time, such reputation was created and destroyed by the publication. However such cases will usually arise where he or she has some form of prior or imminent connection with the jurisdiction."
Section 1 of the Defamation Act 2013
"1. Serious harm (1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."
"The section builds on the consideration given by the courts in a series of cases to the question of what is sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media Group Ltd in which a decision of the House of Lords in Sim v Stretch was identified as authority for the existence of a "threshold of seriousness" in what is defamatory. There is also currently potential for trivial cases to be struck out on the basis that they are an abuse of process because so little is at stake. In Jameel v Dow Jones & Co it was established that there needs to be a real and substantial tort. The section raises the bar for bringing a claim so that only cases involving serious harm to the claimant's reputation can be brought".
Put another way, it is no longer enough to establish a tendency to have a substantial impact and amount to a real and substantial tort; there is now no tort unless and until "serious harm to reputation" has either been caused or "is likely to" be caused by the publication.
Evidence and submissions
The statement and its meaning
The nature of the publication
The extent of publication and the identities of publishees
The claimants' connections with this jurisdiction
The likely impact of publication
i) On 31 January Mr McGee said that he and Mr Ames had been involved in business with Blake Corbin at one time but not since 2011. He said "Neither one of us has anything to do with 'Mamba Hosting' or whatever Blake Corbin is doing now" and that "we definitely don't own or have any part in Mamba Hosting or anything else Blake Corbin is doing." Mr McGee said that he had a family business with two cupcake shops and Mr Ames was doing security consulting for JPMorgan.Your listing does not and cannot affect our current businesses and frankly I cannot afford the distraction so do what you will."
ii) On 4 February Mr McGee said "You have both RSR Interactive and Splitter as part of Mamba Hosting, but they don't have anything to do with Corbin or email and neither have either of us for three years." He said that having the claimants' names in Blake Corbin's records "doesn't matter in our business we just don't want to be associated with him in any way "
iii) On 14 February Mr McGee alleged that Mr Corbin and two others who used to work with the claimants were disgruntled ex-staff of Blackstar, and the claimants were not co-owners with them of any businesses. He said "if we were still involved [in] that business, it would be a problem. But as I told you before you promoted us to Number One Spammers in the World, we have moved on. Cupcake buyers and motorsports clients don't consult the Spamhaus lists."
iv) On 19 February Mr McGee stated that he and Mr Ames had sold Blackstar in 2011 and "We have moved on to other things and other industries that have nothing to do with that industry or your regulatory site." Of RSR Interactive he said it had nothing to do with email "and will never interface with anyone who sends email or has ever heard of Spamhaus. The same is true of cupcake stores and Splitter Interactive.
The prospect of future publication
"If you resume spamming, any new information on you submitted to ROKSO (such as a spam sample or anything even remotely connected to you) automatically makes all of your 'dormant' records 'live' again for another six months, and so on."
The misuse and copyright claims
i) The statements in Mr McGee's emails that he and Mr Ames had nothing to do with the email business since 2011, when in fact they had continued involvement in the ways described in their evidence. I have described the evidential position in this respect, and the claimants' response, above.
ii) The statements in Mr McGee's emails that Messrs McGee and Ames had no connection with Mamba Hosting. These are said to be lies because Mr Ames' evidence identifies Mamba Hosting as a trading name of a subsidiary of Blackstar Media called Trabuco Media LLC which he says "was owned by me and Mr McGee". Ms Page responds that it was true when the emails were sent by Mr McGee that the claimants had no connection with Mamba Hosting, because Blackstar Media and its subsidiaries had all been sold to Adconion which is Mr Ames' evidence - and that in any event misleading the defendants was justified for the reasons discussed above.
iii) The complaint that the addresses disclosed on the website included Mr Ames' "home address". The Particulars of Claim, verified by a statement of truth signed by the claimants' solicitors, identified the published addresses as "addresses where the claimants live with their families". This was not true of the addresses attributed to Mr Ames. The two addresses attributed to him are both former addresses of his, but he has not lived at either since February 2012. His family presently lives at one, but not he. The defendants are able to allege that this is a lie because Mr Ames' witness statement of 27 November 2014 disclosed this information, and on 4 December 2014 the claimants amended the Particulars of Claim to correct what had originally been pleaded. Mr Ames' response to the allegation of mendacity is given by Ms Page: that this error was not a lie but simply a mistake, voluntarily disclosed and put right.
The libel claim
i) The claimants may very well establish that the website publication bore the meaning they complain of, or a similar meaning, not only to readers of the Main Info and other sub-pages on the Spamhaus site but also to anyone who read the main ROKSO list or Top Ten list pages, and to those who read the republications of the sting of the Spamhaus allegations on third party websites.
ii) Such meanings impute unlawful conduct in the course of business and, in the case of the full pleaded meaning, seriously unlawful, deceitful conduct over a period of years. That is inherently seriously harmful to reputation, that is to say it has a tendency to cause serious harm to reputation.
iii) The communication of that meaning is likely in every sense of the word to deter the reader from dealing with or associating with the claimants, provided the reader believes the meaning conveyed to be true.
iv) On present evidence, what Spamhaus says about those on the ROKSO and Top Ten lists is very likely indeed to be taken as true and relied on by readers, except perhaps by those so close to and trusting of the claimants that they would know or believe the allegations to be untrue. It is common ground that Spamhaus is considered authoritative and reliable. The republications relied on by the claimants support that view. The defendants' own evidence makes clear that Spamhaus customers or readers rely and act on information provided by Spamhaus, when it comes to the claimants.
v) It is not possible to say at this stage that there was only insubstantial publication within the jurisdiction of these seriously harmful allegations. The extent of publication within the jurisdiction for which Spamhaus is responsible has yet to be fully established. There has been no disclosure. The defendants initially gave false evidence about their ability to identify the scale of publication. Their key evidence on this issue was served only shortly before the hearing, and involved a mass of material. It is not a satisfactory basis for concluding that the maximum number of relevant readers is, as they maintain, some 176. There are legitimate questions raised about the reliability of that figure, and there is reason to believe that an exercise less rushed than this one seems to have been would identify additional publishees.
vi) Moreover, there are those who read the claimants' names on the ROKSO or Top Ten lists but did not delve further. There may have been more than 2,300 of these. It is not fanciful to suggest that the relevant audience includes these publishees. Beyond this there are the republications complained of, made in at least some cases on apparently authoritative websites, though again the extent to which these flowed from and were made within this jurisdiction is as yet uncertain. (I leave out of account the Internet Archive).
vii) It is not possible to say, either, that publication in this jurisdiction was clearly inconsequential. I accept Mr Helme's submission that the third parties whose adverse reactions are described in Mr Ames' statement were, as a matter of inference, abroad or Mr Ames would have said otherwise. I do not accept, however, that the fact that the claimants cannot identify people who read the words here and thought the less of them leads to the conclusion that no such people exist. Mr Helme is on firmer ground with his submission that I should be suspicious of the claimants' case and evidence about the impact of the publication on their business interests here.
viii) I agree that seriously harmful allegations about a person may not cause "serious harm" to reputation if they are made to people whose opinion of the claimant is of no consequence to the claimant. I agree also that the claimants' conduct of the email correspondence raises real suspicions about the validity of their present case that the publication caused serious harm. However, though they are foreign, the claimants do have past and present business connections here that their evidence suggests may be substantial and material. I have in mind in particular their roles as managers within Blackstar Marketing for what I understand to be some 18 months (from April 2011 to December 2013), at a time when the company was conducting email marketing for UK businesses. This could turn out to lack significance but it is not obviously insubstantial.
ix) As importantly, or more so, the claimants say they wish and intend to do business here in future, and are on the verge of launching a start-up business with a UK presence. Again, the claimants have questions to answer about this new venture. It may prove that this does not in fact have the significance which it presently appears it may have. But I cannot simply reject their evidence on these issues. It is not obvious at this stage that there is a bright line between the readership of the Spamhaus website and those whose opinion of the claimants could be of real significance for their business prospects. Already, the claimants are able to identify among the publishees a number of ISPs, a newspaper publishing company, and a company with which they have previously done substantial business. They attribute significance to these publishees and are not obviously wrong to do so.
x) In my judgment, therefore, although they might fail on the issue after full disclosure and a full examination of the evidence, the claimants have a real prospect of establishing that those within the jurisdiction who read and are likely to have believed the words complained of (and the republications of their sting) include people whose opinion of the claimants is of serious consequence to them and their business prospects. Proof of that much could be sufficient to establish that serious harm to reputation has been caused, even if no such individual was called to give evidence.
Misuse and copyright
Comments on Procedure
The proposed Re-Amended Particulars of Claim
"The claimants claim over publication of the words complained of above within England and Wales and in the United States. The Claimants will rely on the presumption that foreign law is the same as the law of England and Wales".