Friday, October 09, 2009

New UK Internet Libel case coming?

Thanks for the heads up from @loveandgarbage (c/o Twitter) for the following news from David Osler, author of Dave's Part, who is facing libel action from Tower Hamlets Tory activist Johanna Kaschke, following a post on this blog in 2007. She is also (says Dave) suing two other Labour Party members, Alex Hilton and John Gray, over related issues.

"The uncontested facts here are that Ms Kaschke, as a student and member of the centre-left SPD in her native Germany in the 1970s, helped to organised a benefit concert for Rote Hilfe, an organisation officially designated left-extremist, designed to raise funds for the legal fees of Baader-Meinhof Gang suspects; that she was herself subsequently arrested on suspicion of terrorism; and that she spent several months on remand, after which she was released and compensated for unfair imprisonment.

It is further uncontested that Ms Kaschke nominated herself as Labour candidate for Bethnal Green & Bow in 2007; that she received just one vote; that shortly thereafter she defected to George Galloway's Respect party; shortly after that, she joined an as-yet-unspecified Communist Party; and that shortly after that, she became a Conservative. She was, in other words, a member of four political parties in 12 months.

Interestingly, the jury will be asked to rule on whether or not it is libellous to call somebody 'one cherry short of a Schwarzwalderkirschtorte'. Not my words, but those of a reader, left in the comments box. If I lose on that point, the consequences for internet freedom of speech are clearly considerable."
Remarkable, and not just for the linguistics (German cookery experts are invited to elucidate me on the exact translation).

Sites such as the BBC , Yahoo! etc have of course long worried about the liability implications of comment sections on "live" blogs whether moderated or unmoderated. It seems well settled that a host site owner can be liable for publishing the defamatory remarks of commenters. It is equally well settled however that under both Defamation Act 1996 s 1 and the EC E-Commerce Directive Arts 14 and 5, defences are open to hosts in respect of content posted by another.

The interesting point here is I think about the quality of the quoted comment. The English courts have so far, rather admirably, taken a fairly robust attitude towards too quickly attributing the quality of libel to remarks made in the typical hasty cut and thrusts of Internet babble. Most notably in Sheffield Wednesday v Hargreaves [2007] EWHC 2375: particularly
  1. It seems to me that some of the postings which concern the Claimants border on the trivial, and I do not think that it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory or little more than abusive or likely to be understood as jokes. That, it seems to me, would be disproportionate and unjustifiably intrusive. The postings which in my judgment fall into this category are those numbered 4 ("xdanielx"), which is only capable of being argued to be defamatory by devising a frankly implausible meaning, 7 ("Foot04"), which is barely if at all defamatory of the Second Claimant, 8 ("southy") and 14 ("cbrbob"), both which in my view are plainly intended as jokes and would have been unlikely to be taken seriously, let alone understood in the senses for which Mr Eardley argued, and 10 and 11 ("paulrs") which I regard as no more than saloon-bar moanings about the way in which the club is managed, rather than a serious indictment of grave mismanagement. In my view the same is true of 6 ("Auckland Owl") and 12 ("danksy"), which add to the mix a smidgeon of personal abuse of a kind which I would have thought most unlikely to be taken seriously. I take a similar view of the posting numbered 2 ("DJ Mortimer"), which is no more than mildly abusive and is fairly plainly comment.
  2. The postings which I regard as more serious are those which may reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour on the part of the Claimants. In the case of those postings, the Claimants' entitlement to take action to protect their right to reputation outweighs, in my judgment, the right of the authors to maintain their anonymity and their right to express themselves freely,
Thuis was of course however an action for discloure of the identity of the commenters by Norwhich Pharmacal orders , not an actual action on liability.

But see also Smith v ADFN , misreported as Adven in Edwards and Waelde 3rd ed, oh dear.

Here Eady J took possibly the firmest imaginable stance in discouraging libel actions re mere "vulgar abuse " (eg a description of plaintiff in comments as "a destructuive twerp")

  1. The question on which I need to focus next is whether there has been persistence with regard to claims that can properly be characterised as "totally without merit". If so, I could come to the corresponding conclusion that his present application to lift the stays would to that extent also be totally without merit. I have rehearsed above a number of examples where claims have been made in respect of postings which are so obviously, in their context, either mere vulgar abuse or fair comment (sometimes both). There are also examples of a converse and corresponding interest in the subject-matter, for various reasons, such as to give rise to occasions of qualified privilege.
  1. I referred to common themes in the postings, such as that of "bullying" other users and making "threatening demands" for money. That is classic fair comment territory and, in the light of the modern authorities, it is inconceivable that a jury would find any of those who expressed such a view "malicious" – let alone all of them. Opinions may be expressed in exaggerated and strident terms; the only requirement is that they be honestly held. It is fanciful to suppose that any of these people did not believe what they were saying. Even if they reached their conclusions in haste, or on incomplete information, or irrationally, the defence would still avail them. It would be wasteful to let proceedings go forward merely on the footing of a series of formulaic assertions to the effect that the individual concerned did not honestly believe what he was saying. There is accordingly no realistic prospect of any such claims achieving the only legitimate goal of vindicating reputation.
  2. I would not suggest for a moment that blogging cannot ever form the basis of a legitimate libel claim. I am focusing only on these particular circumstances. It does seem to me appropriate to characterise these claims as totally without merit. I will therefore make an extended civil restraint order, which means that Mr Smith cannot launch any further libel proceedings arising out of the Langbar matter based upon bulletin board blogs without obtaining my written permission."

These remarks are technically obiter in relation to Osler's case as the issue in Smith was the maintenance of injunctions rather than a finding of libel. However in relation to the comment post in particular, in short, I do not think Mr Osler has much to worry about :-)


Michael Roberts Internet Libel Litigation Consultant said...

This is a good read, thanks for publishing the assessment.

Jane Henry said...

German translation = literally Black Forest Cherry Tart. ie Black Forest Gateau. Er hardly defamatory I'd think...

Ian Brown said...

I want to rename my blog "Mere Vulgar Abuse" ;)

thefordprefect said...

Smith v ADVFN continues. From an initial 60 to 70 people under threat he has whittled it down to 8 and is being allowed to appeal having won the appeal to appeal. The Justice Eady judgements may yet be overturned!
Thefordprefect (still on the list)