Italy’s residual private international law rules in the spotlight in Dolce & Gabbana v Diet Prada defamation suit.

I was unaware of a fashion blogosphere war of words and more between Dolce & Gabbana and the founders of Diet Prada until I was asked to comment (in Dutch) on the pending lawsuit in Italy. The suit has an echo of SLAPP – Strategic Lawsuit Against Public Participation.

Among others this post on The Fashion Law gives readers the necessary background and also links to the defendants’ lawyers reply at the jurisdictional level. It is this element of course that triggered the interview request, rather than my admittedly admirable sense of style (with sentences like these, I think I may be in need of a break).

Readers might be surprised to find the legal team discussing A7(2) Brussels Ia’s forum delicti, and CJEU authority such as Bolagsupplysningen seeing as per A6 BIa the Regulation does not apply, rather the Italian residual rules. However as Andrea Bonomi and Tito Ballarino review in the Encyclopedia of Private International Law, Italy has extended the scope of application of BIa to its internal sphere. Hence an interesting discussion of the CJEU case-law on locus damni, centre of interests etc. As well as a probably ill-fated attempt to encourage the Italian courts, in subsidiary fashion, to exercise forum non should the A7(2) arguments fall on deaf ears. Probably futile seeing as the Italian regime does not know a foum non rule, however if BIa is extended, would that not also extend to forum non-light in A33-34? As far as I could tell from the submission, however, no reference was made  to an 33-34 challenge.

Enfin, lots of interesting things to ponder at a different occasion. Happy Easter all.

Geert.

EU Private International Law 3rd ed. 2021, para 2.437 ff.

Bitcoin, defamation and jurisdiction. The Court of Appeal confirms stay in Wright v Ver.

The background in Wright v Ver [2020] EWCA Civ 672 is the mysterious history of Bitcoin and its creator, ‘Satoashi Nakamoto’. “Satoshi Nakamoto” is the pseudonym used by the person, or persons, who developed Bitcoin. On 31 October 2008 an academic paper was published under the name of Satoshi Nakamoto titled “Bitcoin: A peer to peer electronic cash system”. The academic paper described the manner in which the electronic cash system operated. Dr Craig Wright, claimant and appellant, is a national of Australia who now lives in Surrey. He has lived in the UK since December 2015 after emigrating from Australia. He also became a citizen of Antigua and Barbuda in 2017. He is a computer scientist with a particular interest in cryptocurrencies, including Bitcoin. Dr Wright says that he is Satoshi Nakamoto.

Roger Ver, defendant and respondent, is a bitcoin investor and commentator on bitcoin and other cryptocurrencies. Mr Ver was born in California, and raised in Silicon Valley. He moved to Japan in 2005. In 2014 he renounced his US citizenship and became a citizen of St Kitts & Nevis, although he continues to live in Japan. Mr Ver does not accept that Dr Wright is Satoshi Nakamoto.

The judgment does not address whether Dr Wright is Satoshi Nakamoto.

Dr Wright claims that he was libelled by Mr Ver in a YouTube Video posted on the Bitcoin.com YouTube channel on about 15 April 2019, a tweet containing the YouTube Video posted on Mr Ver’s Twitter Account on 3 May 2019, and a reply on Mr Ver’s Twitter Account posted on 3 May 2019 some 8 minutes after the tweet from Mr Ver. The defamatory meaning of these publications is said to be that Dr Wright “had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people who developed Bitcoin”.

Never more (data produced were broken down over periods) than 7 of the total YouTube views were in the UK. 7% of Mr Ver’s Twitter followers are in the UK. By judgment dated 31 July 2019 Mr Justice Nicklin found that England and Wales was not clearly the most appropriate place in which to bring the libel claim in this action and made a declaration that the Court had no jurisdiction to hear the claim.

The Court of Appeal, Dingemans LJ leading, agreed. Brussels Ia is not engaged. The jurisdictional test is section 9 of the Defamation Act 2013 – I previously discussed it in Sadik v Sadik: ‘A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied 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 in respect of the statement.’

At 56 Dingemans notes that after Brexit, the Act’s reach will increase.

The first instance judge had argued inter alia that the evidence showed that Dr Wright was putting down roots in the UK and that would increase the reputational interests that Dr Wright had in this jurisdiction but that could not displace the global reputation that he enjoyed.

Dr Wright’s counsel submitted that the judge had set Dr Wright an impossible task by requiring him to adduce evidence of actual harm to his reputation in each candidate jurisdiction, and concluding that in the absence of such evidence Dr Wright could not satisfy the jurisdictional test. Further it was submitted that the judge had wrongly failed to carry out a comparative assessment as to whether each candidate jurisdiction was appropriate for the claim, and therefore failed to carry out the task mandated by s9.

Relevant factors for jurisdiction are discussed at 61 ff. Evidence will have to be shown of all the places in which the relevant statement has been published, as well as the number of times it has there been published. Targeting the publication at an English audience clearly will be an issue. Further elements include the availability of fair judicial processes in the other jurisdictions in which publication occurred. The available remedies from the Courts of the other jurisdictions may be relevant, as may be the costs of pursuing proceedings in each possible jurisdiction. Other factors that might impact on access to justice, for example language barriers, can be relevant. The location of likely witnesses is another feature that may be relevant. This list of factors is not exhaustive.

In a mercifully succinct manner, Dingemans J reviews all the elements and decides the test has not been met here.

A good primer for the 2013 Act.

Geert.

 

Sadik v Sadik. Domicile, libel tourism and the absence of party autonomy in the Defamation Act 2013.

Update 7 November 2019 for a second What’sApp defamation case under the common law see 5 November Tallha Abdulrazaq v Nibras Hassan [2019] EWHC 2930 (QB) – where jurisdiction was not an issue. 

In [2019] EWHC 2717 (QB) Sadik v Sadik, the claim is one in libel. Claimant is a businessman and philanthropist who lives in Dubai and spends 30 to 35 days in London each year. Claimant and Defendant are brother and sister in law. Defendant has a house in Kuwait with her husband. Until at least 19 September 2017 she lived in London, whilst also maintaining a house in Kuwait.

Defendant is prepared to accept for the purposes of this application that the relevant date for determining domicile is the date proceedings were commenced, ie 26 September 2017: see inter alia JSC BTA Bank v Mukhtar Ablyazov. (Upheld on Appeal). Should no domicile in the UK (or another EU /Lugano State) be upheld, forum non conveniens kicks in.

The UK Defamation Act 2013 (the DA 2013) was entered precisely to address libel tourism in the UK. It reads in relevant part (Section 9)

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

(1) This section applies to an action for defamation against a person who is not domiciled 

(a) in the United Kingdom; (b) in another Member State; or (c) in a state which is for the time being a contracting party to the Lugano Convention.

(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied 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 in respect of the statement.

(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.

(4) For the purposes of this section –(a) a person is domiciled in the United Kingdom or in another Member State if the person is domiciled there for the purposes of the Brussels Regulation; (b) a person is domiciled in a state which is a contracting party to the Lugano Convention if the person is domiciled in the state for the purposes of that Convention.”

Defendant says that the Claimant cannot possibly satisfy the test in s 9(2). That is because Claimant in her view does not complain of any publication within this jurisdiction. She submits that s 9 implicitly requires the words complained of to have been published in England and Wales: ‘of all the places in which the statement complained of has been published…’. In effect, she says that s 9 means that this court does not have jurisdiction to hear a claim against a defendant not domiciled in the jurisdiction (or within a Brussels/Lugano state) for a claim in respect of solely foreign publication. In the alternative, if is necessary for the court to compare jurisdictions to determine which is the most appropriate forum for trial Defendant submits that the burden is on the Claimant to demonstrate that England and Wales is clearly the most appropriate forum, and there is no realistic prospect of him being able to discharge that burden. She points in particular to the fact that both of the parties are based in the Middle East, as are all of the publishees of the What’sApp Messages concerned, save for one, who is based in the United States.

Claimant submits that Defendant has submitted to the jurisdiction and so can no longer dispute the Court’s jurisdiction under s 9 of the DA 2013, or otherwise. Further or alternatively, he submits that provision is of no assistance because she was domiciled within the jurisdiction at the relevant time.

At 55 Knowles J holds that failure by a defamation defendant to follow the procedure in Part 11 of the civil procedure rules, for contesting jurisdiction under s 9 does not mean that her right to make a jurisdictional challenge under that section has been waived. ‘Section 9(2) is in mandatory form. Where the defendant is not domiciled within one of the specified jurisdictions then s 9(2) provides (emphasis added), ‘A court does not have jurisdiction to hear and determine an action to which this section applies unless …’. In my judgment jurisdiction under s 9 cannot be conferred by waiver, submission or consent. It is concerned with the subject matter of the suit and not with personal jurisdiction over the defendant.’ In the DA 2013 Parliament in other words inserted mandatory rules on jurisdiction which are not within the remit of party autonomy.

At 60 ff then follows the analysis of ‘domicile’ for natural persons under English law (following Article 62 Brussels Ia’s deference to national law), leading to a conclusion of domicile in the UK at the relevant time.

The remainder of the case discusses grounds for summary dismissal on the grounds of substantive English libel law.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.10