On 30 October 2020 Mr Justice Warby handed down the much anticipated judgment in Gubarev v Orbis Business Intelligence Ltd  EWHC 2912 (QB). The Claimants brought a claim for libel arising out of the publication by Buzzfeed of the so-called “Trump Dossier”.
This was the second such action brought before the High Court arising from the Dossier, the first having been brought as an inaccuracy claim under the Data Protection Act (Aven and Ors v Orbis Business Intelligence Ltd  EWHC 1812 (QB). Gubarev was brought as a claim in libel only. Warby J dismissed the claims, holding that while the allegations were “seriously defamatory”, the Claimants had not succeeded in establishing that the Defendants were responsible for their publication by Buzzfeed.
Mr Gubarev sought damages and other remedies in respect of allegations made in the “Trump Dossier” which was published in full as part of a Buzzfeed article in January 2017 under the headline “These Reports Allege Trump has Deep Ties to Russia” (“the Buzzfeed Article”). The claim was also brought on behalf of a corporate claimant, Webzilla Ltd, an enterprise hosting company part of XBT Group of which Mr Gubarev is the ultimate beneficial owner. The reports comprised of various intelligence memoranda prepared by a former British intelligence officer, Christopher Steele. The claim was brought in respect of a memorandum dated 13 December 2016. The words complained of were as follows:
“[redacted] reported that over the period March-September 2016 a company called XBT/Webzilla and its affiliates had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct “altering operations” against the Democratic Party leadership. Entities linked to one Alexei GUBAROV were involved and he and another hacking expert, both rec recruited under duress by the FSB, Seva KAPSUGOVICH, were significant players in this operation. In Prague, COHEN a greed contingency plans for various scenarios to protect the operations, but in particular what was to be done in the event that Hillary CLINTON won the presidency. It was important in this event that all cash payments owed were made quickly and discreetly and that cyber and other operators were stood down/able to go effectively to ground to cover their traces.”
It was not in dispute that the words complained of bore a meaning which was defamatory of the claimants and that they met the serious harm threshold required by s. 1 of the Defamation Act 2013. The issues at trial were:
- Whether the Defendants were responsible for publication by Buzzfeed
- Serious harm to the second claimant;
Warby J dealt first with the natural and ordinary meaning of the words complained of, finding that they bore the following natural and ordinary meaning taken in their “overall context”:
“there were good reasons to suspect the claimants of having, under duress from the Russian Secret Service, taken part in hacking the computers used by the Democratic Party leadership, and using the access they unlawfully gained in that way to transmit virus, plant bugs, steal data and alter files and software.”
He noted that this was a meaning “slightly higher” than a Chase Level Two but with “the moderating addition of the point about coercion.” The Claimants had contended for a Chase Level One meaning – that the Claimants were actually guilty of the conduct described in the words complained of. The Judge agreed that, if the memorandum had been taken in isolation this would be the case, but concluded that the reader’s mind would be “conditioned” by the Buzzfeed Article, which had contained more nuanced information about the Dossier, including an “odd and unusual mix of sensationalism and caution” and the “neutral” stance taken as to the accuracy of the allegations in the Dossier. These were matters which would temper a reader’s understanding of the allegations in the Dossier. [§§28-30; §33]
As to serious harm in relation to the second Claimant, which was a corporation, Warby J confirmed that in cases involving bodies trading for profit, the requirement is that it shows both serious harm to its reputation and serious financial loss that is consequent on the reputational harm. This is a confirmation of his earlier observations in Undre v London Borough of Harrow  EWHC 931 (QB). [§42]. Financial loss could be established with something less than strict proof – inference may suffice but it must be based on “a sound evidential basis”. [§44-45] The judgment also contains some interesting analysis of the types of evidence that may be required in relation to serious financial loss cases.
The main issue in this case was responsibility for publication by Buzzfeed of the words complained of. It was common ground that:
- The Defendants had not directly provided copies of the Dossier or the Memorandum to Buzzfeed;
- Mr Steele had not expressly asked Mr Kramer (who had provided the Dossier to the Buzzfeed journalist, Mr Bensinger) to do so; and
- Buzzfeed’s publication had been “one of the most irresponsible and reckless actions in the history of modern journalism”
The main issue for the Claimants was whether the Defendants were responsible for the re-publication of the Article/Dossier by Buzzfeed. The circumstances in which Buzzfeed came into possession of a copy of the Dossier was of central importance to the determination of this issue. Warby J first reiterated the legal principles relevant to re-publication for the purposes of a defamation claim. The Claimants had to show either that the Defendants intended the republication or that they had authorised it or that it was a reasonably foreseeable consequence of the original publication. The Claimants had initially pleaded that liability for re-publication could be found where the republication was a “natural consequence” of publication. This was withdrawn in closing submissions – a course of action the judge considered a sensible one as he did not consider this to be a proper basis upon which to find liability for re-publication.
On the evidence, Warby J rejected the Claimants’ case that publication by Buzzfeed was either impliedly authorised or intended by defendants. He accepted the main evidence given by Christopher Steele as to how the dossier came to be passed to Buzzfeed. In summary, he found that while Steele had certainly been keen to ensure media engagement and had given briefings about the Dossier, these had generally been at quite a high level and had he had not provided any documents to the press. Although after the US election in 2016 Steele had authorised some limited disclosure of the memoranda to a UK intelligence official and to Fusion (the firm which had instructed him originally) he hadn’t authorised any further disclosure. In particular, the journalist who had photographed the memoranda had not been authorised to do so – in fact, the judge found he had been expressly told not to take any photographs or to otherwise make any copies of the document. The fact that Steele had met with the Buzzfeed journalist in London shortly before the article was published in January 2017 was not enough to prove liability for re-publication.
As a consequence of the above findings, liability for re-publication was not made out and the claims failed. In respect of the Second Claimant, Warby J found that the claim would have failed in any event because it could not establish serious financial loss. However, in relation to the first Claimant, Mr Gubarev, the judge noted that he would have recovered a “substantial award” of damages had he established liability for re-publication.
This is the second of two cases heard by the English courts arising out of allegations made about Russian businessmen by Christopher Steele as part of the “Trump Dossier”. However, the difference in outcome is stark. The earlier case of Aven was brought only as a claim under the Data Protection Act 1998 – focusing on the inaccuracy of the statements contained in the relevant memorandum about the Claimants. As Warby J noted in Gubarev, responsibility for further publication by Buzzfeed had not been made out in Aven but that did not matter for the purposes of the claim. Two of the three claimants were each awarded £18,000 for damages for distress and to their reputation. They also had the benefit of a reasoned judgment finding that none of the allegations about them had been accurate. Had wider publication been made out in Aven, the award of damages may have been higher, Warby J holding that the same principles applicable to the assessment of damages in a libel claim should apply to inaccuracy claims under the DPA where the claim includes a claim for damage to reputation.
The judgment is a comprehensive statement of the law in relation not only to re-publication but also the “serious financial loss” requirement for corporate defendants set out in the Defamation Act 2013. Furthermore, Mr Gubarev may feel some vindication – the allegations about him were found to be seriously defamatory and, as no defence of truth was run by the Defendants, are presumed to be false. However, as the line between inaccuracy claims under the DPA and traditional libel claims continues to blur, a claimant who seeks to vindicate their reputation in response to false allegations would be wise to consider pleading both.
Kirsten Sjøvoll is a member of Matrix Chambers, practising the field of media and information law. This post is published on the Matrix Media website.