Wei & Ors v Long & Ors [2025] EWHC 158 (KB)

This was an interim hearing to determine four applications concerning the Claimants and D4 (Porkbun LLC).

The Claimants are individuals; C1 and C2 are the parents of C3, and C4 is in a relationship with C3. D4 is a Domain Name Registrar based in the US.

The Claimants brought proceedings for harassment, defamation, malicious falsehood and various privacy-related claims, alleging that D1 had extensively defamed them on the internet and had harassed them both in person and online. The Claimants contended that D2, D3 and D4, respectively, were the companies responsible for the three websites on which the allegedly defamatory/harassing material was posted.

Mrs Justice Hill heard the following applications on 12 December 2024:

• D4’s application for relief from sanctions and/or a retrospective extension of time for filing its Acknowledgment of Service;
• D4’s application challenging jurisdiction under CPR Part 11;
• The Claimants’ application for an order under s.13 of the Defamation Act 2013 against D4; and
• The Claimants’ application for further information under CPR Part 18 against D4.

D4’s jurisdiction challenge was advanced on two grounds:

1. That they were not the publisher of the words complained of at common law, such that the order permitting service out of the jurisdiction should be set aside; and
2. That they were not the “author, editor or publisher” of the words complained of and therefore, pursuant to s.10 of the Defamation Act 2013, the court did not have jurisdiction to hear and determine the defamation claim.

1. Whether D4 was a publisher of the words complained of at common law (Issue 1);
2. Whether the court had jurisdiction to try the claim against D4 under s.10 of the Defamation Act 2013 (Issue 2); and
3. Whether an order under s.13 of the Defamation Act 2013 could be made against D4 (Issue 3).

Issues 1 and 2

That D4, as a Domain Name Registrar that does not host or operate the website complained of, is not a publisher, primary or secondary, at common law [70-81]:

• D4 plays a merely passive role in registering domain names that direct web traffic to websites;
• D4 does not, and did not, transmit the defamatory material;
• Further, D4 has no control over the content on the website complained of, all it could do is de-register the domain name.

And/in the alternative, that D4 is not an “author, editor, or publisher” within the meaning of s.1(2) of the Defamation Act 1996 and, on the basis that it was reasonably practicable for the Claimants to bring a claim against the author/publisher of the posts (D1, against whom Default Judgment had already been obtained), the court does not have jurisdiction to hear and determine the claim against D4 [85-90].

Therefore, D4 is entitled to (1) a declaration of non-jurisdiction and (2) the setting aside of the order granting permission for the Claimants to serve the Claim Form on D4 outside the jurisdiction [91].

Issue 3

That an order under s.13 DA 2013 should not be made against D4: D4 is not the “operator of a website” – it has no editorial or hosting control over the contents of the website complained of (s.13(1)(a)).  Further, D4 is not a secondary publisher at common law and is not “distributing, selling or exhibiting material containing the statement” (s.13(1)(b)) [94-100].

As for the other issues determined at the hearing, D4’s application for relief from sanctions was granted [41-47], and the Claimants’ application for further information was dismissed [103-112].

This is only the second occasion upon which the Court has determined a challenge to jurisdiction under s.10 of the Defamation Act 2013 and the first time that the Court has considered whether a Domain Name Registrar (who is not also providing web hosting services) is a publisher at common law, whether primary or secondary.  Regarding the latter, the judgment contributes to the developing, at times nuanced, case law on the status of internet intermediaries in defamation proceedings.  What does seem clear is that a s.13(1)(a) order (the only type of s.13 order so far made by the Courts) is only available as against the “operator of a website”, which appears to mean an online publisher at common law who could, in theory, benefit from a defence to direct liability under s.5 and its regulations.