How to sue in respect of abusive comments on the Internet
25 March 2015
The Bussey Law Firm PC & Anor v Page [2015] EWHC 563 (QB) – read judgment
The facts of this case are simple. A defamatory comment was posted on the claimant’s Google maps directional page, implying that he was a “loser” as a lawyer and that his firm lost “80%” of cases brought to them. The defendant claimed that someone must have hacked in to his own Google account to put up the post.
There were jurisdictional complications in that the firm is situated in Colarado but these need not concern us here as Sir David Eady, sitting as a High Court judge, allowed the trial to go ahead in England. The real question was why any third party would have gone to the trouble of hacking into the defendant’s Google account in order to post the offending review; if the objective were merely to hide the hacker’s identity from the claimants, there would be the simpler option of setting up an anonymous Google account. This would in itself render the would-be publisher untraceable, and especially if it were done from a public computer. Equally, if such a hacker nevertheless wished to use someone else’s account, as Sir David said,
it is not easy to see why he would choose that of the Defendant. He is based in England and it would make more sense, surely, to choose someone in or near Colorado Springs, where the Claimants practise. This would present a rather more credible scenario, if the account were traced, since their clients or potential clients are more likely to be found within easy reach.
The defendant put forward one scenario which the judge found somewhat difficult to swallow: that he must himself have been the hacker’s real target. The theory is that he or she might have been seeking retribution for some decision or action taken by the Defendant in his capacity as moderator of “sub-reddits” on the http://www.reddit.com website.
In other words, this could provide an explanation why the third party wanted Mr Page to take the blame for the attack on the Claimants. This plan would still, of course, involve the third party successfully hacking into Mr Page’s account in the first place and then making the (very big) assumption that the target (i.e. the Claimants) would actually go to the trouble and expense of identifying Mr Page and thereafter of pursuing him in a foreign jurisdiction. When one comes to assess the competing possibilities, it is fair to say that this somewhat obscure explanation defies probability.
One possibility is that the defendant obtained payment for posting third party reviews via another website, the Fiver.com site. Why he should himself choose to attack the claimants was also unclear, but the most likely explanation appeared to the judge as “a purely financial one”.
An action in defamation however is not one where it is required of the court to establish motive, so once he had decided liability Sir David was able to proceed to determine damages. The purpose of compensatory general damages is threefold. The court must compensate
- for hurt feelings and distress, and
- for injury to reputation, as well as bearing in mind
- the need to award a sum which will serve as an outward and visible sign of vindication.
There was no doubt that the allegation caused Mr Bussey “considerable anxiety and distress, as it reflected upon his personal integrity and his professional competence throughout the period of ready access.”
The judge assessed the damages in this case at £45,000 for Mr Bussey personally, and for the first claimant, his firm, he awarded the sum of £25,000, although the total claim was capped at £50,000.
Comment
The widespread problem of “trolling” on the internet cannot be solved by libel law alone, and no finding of individual ill-will was made in respect of this particular defendant. But it is an interesting case of a defamed individual being able to claim redress even though the precise identity of his defamer cannot be established beyond doubt.
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I haven’t read this judgement. I intend to, but just from this summary I am very troubled. I don’t know whether it is more or less troubling that this was apparently a litigant in person. I would have expected a bit more scepticism in the tone of this piece. I have no trouble swallowing with Eady J finds so difficult. Hackers gonna hack. They do it for the “lulz”. It is more fun to pretend to be a real person than to use an anonymous account that is untraceable. You get to screw over two people at once. It is not very difficult if you know what you’re doing. Eady should perhaps acquaint himself with the force that is collectively known as GamerGate to get a sense of what’s possible. The judge is a fool.
Surely it’s worthwhile looking into what relationship if any the defendant has to the claimant and why he might do something like this. If there’s no link, then it seems on balance more likely to be a malicious act by a third party. I have no trouble buying the sub-reddit argument either. Again, see GamerGate. We now have a defendant who could not afford to instruct a lawyer, ordered to pay damages that most people would be ill able to afford, simply because he is unable to prove on balance of probability that he did not push the button. This is terrible. If he was attacked over speech acts he has made, then he will be very reluctant to put himself in that situation again, and so should we. There are clear free speech chilling implications here. I know good lawyers who would probably help out, so I’m not terribly worried for myself. But this is bad for your average person. I’ll read the judgement to get the whole picture, but for now let me just express my acute discomfort.
Matt, you say, “. . . simply because he is unable to prove on balance of probability that he did not push the button.” But it’s almost impossible to prove a negative. The rule of logic is that who asserts must prove – judges should know that!
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The Judgment should be read in the light of he is not a real High court Judge, he is a temporary made up one , where the system uses people as guinea pigs during the recess to see if he is worth promoting to a real one. To be fair another tier of appeal should be introduced when ever a Judge is “siting as “!
Secondly the defendant was a litigant in person and not represented. The defendant did not challenge jurisdiction and appeared to be just lead like a lamb to slaughter.
Thirdly what would have happened if he plead the comments were true ? He could have posted on the internet asking for former clients to contact him to see what they really thought of the firm?
so, Mr Page forced to pay 50K even though no evidence presented that he was even guilty?
“But it is an interesting case of a defamed individual being able to claim redress even though the precise identity of his defamer cannot be established beyond doubt.”
She said, “No! someone’s got to be summonsed” So that were decided upon. (Albert and the Lion – Stanley Holloway).
If Mr Page did anything, could it have been proved or disproved? I believe there’s an Asian criminal case where spoofing of IP addresses may be an issue,
An afterthought – perhaps Mr Page should have paid for a lawyer?
how can one when you are destitute and have no money? + how do you find a trustworthy lawyer anyway? i.e. one that does what his employer tells them to do….