Craig Ames and Another v The Spamhaus Project Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 27 January 2015 |
| Neutral Citation | [2015] EWHC 127 (QB) |
| Docket Number | Case No: HQ14D03028 |
| Court | Queen's Bench Division |
| Date | 27 January 2015 |
[2015] EWHC 127 (QB)
Mr Justice Warby
Case No: HQ14D03028
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Adrienne Page QC and Jacob Dean (instructed by Carter-Ruck) for the Claimants
Ian Helme (instructed by Olswang) for the Defendants
Hearing date: 12 December 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is a case about spam, which for present purposes is adequately defined as unwanted email sent in bulk. It can also be described as the internet version of junk mail.
The claimants are two entrepreneurs, one ("Mr Ames") an Australian citizen and the other ("Mr McGee") a citizen of the United States, who are both resident in California. Between them they set up and until about December 2013 were involved with a bulk email marketing services business, initially through a US corporation called Blackstar Media LLC, and latterly as employees of Blackstar Marketing, a subsidiary of the English company Adconion Media Group Limited, which bought Blackstar Media in April 2011.
The first defendant is an English company which represents the principal corporate entity of an international not-for-profit organisation called The Spamhaus Project which tracks and reports on sources of spam on the internet. The second defendant ("Mr Linford") is the founder of The Spamhaus Project and chief executive of the first defendant. The defendants' evidence and submissions refer generally to Spamhaus without distinguishing between the Project and the first defendant and I shall do the same.
The claimants' claim, as presently put in amended particulars of claim dated 4 December 2014, concerns publications in England and Wales via the Spamhaus website between a date in December 2013 and about 31 May 2014. The claimants were both named as spammers, and for most of this period were on the first defendant's Register of Known Spam Offenders ("the ROKSO list") and at the top of its list of the Top 10 world's worst spammers ("the Top 10 list"). Addresses relating to the claimants and a photograph of Mr McGee were also published. The claimants complain that the words used were libellous of them, and that the disclosure of their addresses was a misuse of private information. Mr McGee complains that the reproduction of the photograph was an infringement of copyright. The claimants claim damages and injunctions.
The defendants now apply for an order dismissing all of these claims on the grounds that they represent an abuse of the court's process. Alternatively, the defendants apply for summary judgment on the grounds that the claims have no real prospect of success. The factual propositions relied on in support of these applications include, though they are not limited to, contentions that the claimants have no or no significant reputation in England and Wales, that the extent of publication within this jurisdiction was minimal or insignificant, that the claimants have neither suffered nor are likely to suffer any or any substantial or serious harm as a result of the alleged wrongs, that publication has ceased, and that there is no intention to republish.
By a cross-application issued two days before the hearing the claimants seek permission to re-amend their statements of case to enlarge the claim so as to complain in addition of libel by publication in the United States. The defendants take no objection to that application being determined on short notice, but invite me to dismiss it on its merits.
Publication
Spamhaus, which was set up in 1998, uses a variety of investigative techniques to collect data about spamming activities and to identify those it believes are responsible. This information is stored and collated in a number of databases and "blocklists". Among the Spamhaus databases are the Spamhaus block list or "SBL" database and the ROKSO list. The SBL database contains IP addresses from which Spamhaus does not recommend the acceptance of electronic mail. The SBL database is used by ISPs to filter email content originating from those IP addresses and to terminate any services they are providing.
The SBL database is also used by Spamhaus as the starting point for further investigation to identify people or organisations responsible for sending spam. On the basis of such investigations the ROKSO list is drawn up and published. The Spamhaus website describes the ROKSO list in this way: "ROKSO is used by Internet Service Providers to avoiding signing up known spammers who would abuse their networks and by Law Enforcement Agencies to help target and mount prosecutions against spam and malware gangs."
On the Spamhaus website the ROKSO list has its own page at www.spamhaus.org/rokso. It is an alphabetical list of around 100 alleged spammers. The page contains explanatory text which informs the reader that "The majority of the spammers on the ROKSO list operate illegally", and that they move around to seek out ISPs with poor security or enforcement. It is said that:-
"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.
The Top Ten list is what its name implies, and is maintained at www.spamhaus.org/statistics/spammers with headings including "The World's Worst Spammers". A link to this page is provided on the main ROKSO list page. On the Top Ten list page it is said that
"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".
It was on a date between 4 and 21 December 2013 that information about the claimants first appeared on the Spamhaus website. The ROKSO list at that time included an entry for "Mamba Hosting/Blake Corbin". They held the position at that time of the World's Worst Spammers. Clicking through, the user would be led to pages identifying the two claimants by name as running Mamba Hosting together with Blake Corbin, and describing Mamba Hosting as a "massive snowshoe spamming operation involving dozens of fake companies using Earth Class Mail PO boxes as an address, tens of thousands of nonsense domains registered to these fake companies." A snowshoe operation, explains Mr Linford, is one that seeks to spread its email output across a large number of different addresses and internet domains.
The claimants came to know of this reference to them in late January 2014. On 31 January 2014 Mr McGee emailed Spamhaus. The evidence of Mr Ames is that this and subsequent correspondence from Mr McGee was sent on behalf of both claimants. I shall return in more detail to the correspondence. For present purposes it is enough to say that the email of 31 January said that Mr McGee and Mr Ames had been involved in business with Blake Corbin at one time but not since 2011, and that Mr McGee had a family business with two cupcake stores and Mr Ames was doing security consulting for JPMorgan.
In response Mr McGee was asked by Spamhaus to explain what RSR Interactive LLC and Blackstar Racing LLC were. On 4 February 2014 he explained that Blackstar Racing provided sports marketing and product promotion services in motorsports and cycling. RSR was a start-up company building a "sports action event marketing platform", which allowed advertisers to target their content at consumers at particular times during a race when an event of a pre-selected kind occurred. This was a second attempt to do something previously tried with a company called Splitter, said Mr McGee.
On or around 8 February 2014 Spamhaus put the claimants on the ROKSO list and at the top of its Top Ten list. On the ROKSO list there now appeared an entry "Blackstar Media/Rob McGee/Craig Ames". On the Top Ten list page, at number 1 on the list of "The 10 Worst Spammers" these words appeared:
"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.
On the Main Info page to which the interested reader could click through to find out more about Blackstar Media and the claimants the words starting "A major league snowshoe operation …" appeared again, and the claimants were also described in precisely the same terms as had earlier been used for Mamba Hosting/Blake Corbin (paragraph 11 above). A list of "AKAs"...
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