This is, to say the least, a rather unfortunate saga. The Claimant, Mr Serafin, brought a defamation claim against a Polish newspaper run by the Defendants. An article had alleged various things including that he was financially untrustworthy and was dishonest in his dealings with women. At trial before Jay J, he represented himself. He was comprehensively disbelieved by the judge. His claim was dismissed, in most cases because the judge found that the article was accurate, but in some instances because the defendants had a public interest defence under s. 4 Defamation Act 2013.
The Supreme Court, via a single judgment from Lord Wilson, thought that the judge’s judgment was “remarkable”, “intricately constructed and beautifully written”. So what, if anything, had gone wrong, and why did the SC order a retrial?
Richardson v Facebook  EWHC 3154 (2 November 2015) – read judgment
An action in defamation and under the right to privacy against Facebook has been dismissed in the High Court. The Facebook entity named as defendant did not “control” the publication so as to allow liability; and even if it did, no claim under the Human Rights Act could lie against FB as it could not be described as any sort of a public authority for the purposes of Section 6 of the Act.
The claimant, acting as a litigant in person, sought damages in respect of the publication in 2013 and 2014 of a Facebook profile and a posting on the Google Blogger service. The Profile and the Blogpost each purported to have been created by the claimant, but she complained that each was a fake, created by an impostor. She claimed that each was defamatory of her, and infringed her right to respect for her private life under Article 8 of the European Convention on Human Rights (ECHR). Continue reading →
Brett Wilson LLP v Person(s) Unknown, Responsible for the Operation of the Website solicitorsfromhell.co.uk, 7 September (Warby J)  EWHC 2628 (QB) – read judgment
This was a claim in libel by a firm of solicitors who acted for another firm which also claimed against the operators of SFHUK, causing the original site to be shut down (Law Society v Rick Kordowski ). In this case the words complained of appeared on a new site, but despite efforts by the present claimants, it was not possible to find out who was operating it. The site alleged various aspects of mismanagement, including incompetence and fraud. It also quoted a client of the claimant firm who alleged overcharging and who refused to pay their fees. (It is worth noting that the site appears to have been taken down since default judgement was given in this case)
The Bussey Law Firm PC & Anor v Page  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. Continue reading →
A recent, short (71 pages), and interesting book on the phenomenon of the bad judge, by Graeme Williams Q.C: details here. You may not be surprised to read that, libel laws being what they are, all the subjects of Williams’ book are in their graves. But, as the author points out, the lessons derived from their badnesses live on.
A number of themes emerge.
The first is that bad judges are often clever judges, but people temperamentally ill-suited to listening patiently to other people – which is unsurprisingly a large part of their job.
The second is that some of the most disastrous appointments are truly political ones. Mercifully we now have a sophisticated system of judicial appointments which is currently divorced from the rough and tumble of politics – though with the politicisation of the office of the Lord Chancellor, and the shrilling-up of the press debate about “unelected judges etc etc” we need to keep a beady eye on that. We also have judicial training and all judges will have sat as part timers before they get appointed, so the worst instances of unsuitability get weeded out before they get the full-time job.
Mitchell v. News Group Newspapers 27 November 2013, CA read judgment
We all know the story about how Andrew Mitchell MP may, or may not, have tried to barge past policeman in Downing Street with the memorable phrase “you’re f…ing plebs”. Like a lot of good stories, it may not be true, and like a lot of good stories it was picked up by The Sun. So Mr Mitchell sues The Sun in libel on the basis that it is untrue.
But this decision of the Court of Appeal is all about the reforms initiated by the man to my left, Sir Rupert Jackson, also a judge in the CA, who has shaken up the whole system of legal costs in civil litigation. And one of the major steps he has taken is to compel litigants to say what they intend to spend on a case early on – the costs budget – so that the judges can make some assessment of whether the thing is to be run sensibly or extravagantly.
Cue the present argument, where our MP’s lawyers do not file their costs budget on time, which is 7 days before the relevant hearing. So the parties go before the court, and The Sun says – we did our bit on time but we only got their budget yesterday, and we are not ready. To cut a long story short, The Sun now stand to recover a budgeted figure of £589,555 if they win, but our hapless MP (or his lawyers) will only recover his court fees if he wins.
R (on the application of Ingenious Media Holdings plc and Patrick McKenna v Her Majesty’s Revenue and Customs  EWHC 3258 (Admin) – read judgment
Sales J has rejected an application for judicial review by Ingenious Media Holdings plc and Patrick McKenna, who complained that senior officials in HMRC had identified them in “off the record” briefings.
Ingenious Media is an investment and advisory group which promotes film investment schemes which allow participators to take advantage of certain tax reliefs and exemptions. HMRC has long been fighting to close down these “film schemes”, with some success (see the Eclipse 35appeal). Continue reading →
Delfi AS v Estonia (Application no. 64569/09) 10 October 2013 – read judgment
This case concerned the liability of an Internet news portal for offensive comments that were posted by readers below one of its online news articles. The following summary is based on the Strasbourg Court’s press release.
The applicant company owns one of the largest internet news sites in Estonia. In January 2006, Delfi published an article on its webpage about a ferry company. It discussed the company’s decision to change the route its ferries took to certain islands. This had caused ice to break where ice roads could have been made in the near future. As a result, the opening of these roads – a cheaper and faster connection to the islands compared to the ferry services – was postponed for several weeks. Below the article, readers were able to access the comments of other users of the site. Many readers had written highly offensive or threatening posts about the ferry operator and its owner. Continue reading →
The permanent damage that internet publications can inflict is very much the focus of Tugendhat J’s assessment of damages in this case, encapsulated in the memorable description he quoted in an earlier judgment:
what is to be found on the internet may become like a tattoo.
Since the advent of internet search engines, information which in the past would have been forgotten (even if it had been received front page coverage) will today remain easily accessible indefinitely. So a libel claimant who has a judgment in his favour nevertheless risks having his name associated with the false allegations for an indefinite period.
This is just what had happened in the present case. The second defendant’s liability for libel had already been established. This hearing was to assess the appropriate level of damages for allegations he had published on the internet, in breach of restraining orders against him, suggesting the claimant was guilty of misappropriation of family funds and paedophilia. Continue reading →
Tesla Motors Ltd and another v British Broadcasting Corporation  EWCA Civ 152 – read judgment
The Court of Appeal has refused an appeal against the strike out of a libel claim against the BBC in relation to a review of an electric sports car by the “Top Gear” programme. The judge below had been correct in concluding that there was no sufficient prospect of the manufacturer recovering a substantial sum of damages such as to justify continuing the case to trial.
The manufactures of an electric sports car made two of their “Roadsters” available to BBC’s “Top Gear” programme for review. The show’s tests were designed to push the cars to the limits of their performance in terms of acceleration, straight line speed, cornering and handling. One of the cars was driven by the presenter of the show, Jeremy Clarkson, who was filmed driving it round the test track and commenting on his experience. Continue reading →
The Court of Appeal has ruled that in principle, an internet service provider that allowed defamatory material to remain on a blog hosted on its platform after it had been notified of a complaint might be a “publisher” of this material, although in this case the probable damage to the complainant’s reputation over a short period was so trivial that libel proceedings could not be justified.
This interesting case suggests there may be an opening for liability of Google for defamation, if certain steps have been taken to fix them with knowledge of the offending statement. Mr Tamiz, who claimed to have been defamed by comments posted on the “London Muslim Blog” between 28 and 30 April 2011, appealed a decision in the court below to decline jurisdiction in his claim against the respondent corporation and to set aside an order for service of proceedings on Google out of the jurisdiction. Continue reading →
As expected, last week’s Queen’s Speech included plans to reform libel law. This follows a concerted campaign to improve protection of the right to free expression and bring greater clarity to England’s libel law. But the question for those who wanted to see reform, now the Defamation Bill has been published, is whether the reforms proposed will be the right ones.
The media law blog, Inforrm, published this summary of the Bill, which takes a detailed look at the main clauses. Law blog Jack of Kent also has a libel reform resource page here. Among others, the Bill would make the following major changes:
Create a test of “serious harm” for statements to be considered defamatory.
Abolish the common law defences of fair comment, justification and Reynolds privilege, and place them on a statutory footing.
Create a new statutory privilege for peer-reviewed scientific and academic publications and provide greater protection to online entities.
Amend the existing law of qualified privilege to include reports of scientific conferences and press conferences.
Free speech is under attack. Or so it seems. The last few weeks have been abuzz with stories to do with free speech: a Supreme Court ruling on the Reynolds defence to libel; contempt of court proceedings against an MP for comments made in a book and the latest in a growing line of criminal trials for Twitter offences. The diversity of media at the heart of these stories – print news, traditional books and online ‘micro-blogging’ – indicates the difficulty of the task for the legal system.
Flood v Times: how does this affect calls for libel reform?
On 21 March, the Supreme Court affirmed the Times newspaper’s reliance on the Reynolds defence to libel – often referred to as Reynolds privilege or the responsible journalism defence – to a claim by a detective sergeant in the Metropolitan Police.
The government’s proposals for reform of the law on defamation have been published. The bill seeks to address concerns that libel law has a chilling effect on freedom of speech, failing to strike the right balance between free speech and protection of reputation.
The pressure of the widely-supported reform campaign, inspired by recent libel actions stifling comment on issues of scientific and academic debate, has no doubt contributed to the manifesto commitment on the part of all three parties which the coalition is now following through. The consultation paper and draft bill has been met with muted enthusiasm, with critics claiming that the proposed statute at best codifies the common law, with all its confusions and complexities, and that the whole is at worst “too little, too late” to meet their reform demands.
The Supreme Court yesterday handed down judgment in the case of Joseph v Spiller ( UKSC 53), the first time it has considered a libel case since its inception. The panel consisted of Lords Phillips, Rodger, Walker and Brown and Sir John Dyson. There is the usual useful press summary. The background to the case has already been covered in a previous case preview on this blog and the background facts and the case history are not repeated in this post.
Despite branding the underlying dispute between the Motown Tribute Band “the Gillettes” and their entertainment booking service a “considerable … storm in a tea-cup”, the Supreme Court have broadened the scope and application of the defence of fair comment. The Supreme Court did so by reducing the burden formerly placed on defendants to identify facts they are commenting on with ‘sufficient particularity’. Lord Phillips also re-named the defence as “honest comment” (as opposed to Court of Appeal in BCA v Singh  EWCA Civ 350, which favoured “honest opinion” ) and called on the Law Commission to consider and review the present state of the defence.
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