Publish and be damned: the old adage applies equally to internet users

Websites and social media accounts have been, for some time now, the preferred platforms for those with an axe to grind to attack their opponents.  Disgruntled customers, ex-employees and jilted lovers number amongst those who believe the world wide web provides the best opportunity to criticise those who have dared to cross their path.

While criticism or abuse may be sporadic at first, the perpetrator will often escalate his or her campaign if his message is not receiving the attention he believes it deserves.  In certain situations, he will consider it necessary to devote an entire social media page to his campaign, or even set up a website.  These platforms provide the perpetrator with considerable control; he can, in effect, operate as author, editor and publisher.

Unencumbered by the traditional checks and balances in the publishing industry (e.g. ‘libel-reading’ by lawyers), the perpetrator may believe he is free to publish what he likes.  This belief, however, is misguided, as recent cases have shown.

In  Al-KO Kober Ltd & Anor v Balvinder Sambhi [2017] EWHC 2474 (QB), the Defendant Balvinder Sambhi published various videos on YouTube referring to products manufactured by Al-Ko Kober Ltd, the First Claimant (“the Company”), which were used as stabilisers when towing caravans (“AKS Stabilisers”).  In the videos published by Mr Sambhi, it was falsely alleged, amongst other things, that the AKS Stabilisers were “killer” products and that the Company was knowingly risking the lives of the public by selling them and that Paul Jones, the Marketing Manager of the Company and Second Claimant in the action, had been exposed as having told lies about the products which the Company had then instructed solicitors to try to hush up.

The Company applied for an interim-injunction in malicious falsehood which meant that, in addition to making out each element of the tort, it had to satisfy the Court that no judge or jury could reasonably conclude that the statements made by Mr Sambhi were true.  This is clearly a difficult burden for the Claimant to discharge but can be satisfied where the nature of the claim is “so unfounded that the particular fact that is  put forward may be evidence that it is not honestly believed.”  In this case,  Mrs Justice Whipple accepted that the statements complained of were “wholly unfounded” and therefore concluded that Mr Sambhi did not honestly believe them to be true.  Accordingly, she granted the Company an interim injunction.

As a living individual, Mr Jones is a data subject under the Data Protection Act 1998 (“DPA”).  Accordingly, he sought to prevent Mr Sambhi, a Data Controller, from processing his personal data which he claimed had caused him to suffer substantial unwarranted distress. Mr Jones had previously served a notice requiring Mr Sambhi to cease processing his personal data with which Mr Sambhi had failed to comply. In the circumstances, Mr Jones applied to the Court to force Mr Sambhi to take steps to comply.  Mrs Justice Whipple agreed to grant an injunction in broad terms, requiring Mr Sambhi not to process, further process or cause or permit to be processed any audio recording, video recording, still photograph or other information, including by disclosing the same to the public, amounting to Mr Jones’ personal data for the purposes of the DPA.

The decision in Al-Ko Kober Ltd follows a judgment delivered earlier this year by Mr Justice Dingemans in the case of Andrew Guise v Rajeev Shah [2017] EWHC 1689 (QB).  In that case, following a business dispute, the Claimant and Defendant each set up websites on which they made claims about one another, some of which were determined to be false. In view of this and the fact that Dingemans J found that both parties had acted unreasonably, he considered it was appropriate to grant an injunction restraining further publication of the websites in their current form.

The message is clear: the Court will, in appropriate circumstances, provide relief for victims of online attacks.  What is less clear from most judgements, but equally as important, is that the unsuccessful party will normally be ordered to pay significant legal costs (on top of any compensation awarded).

The DPA is increasingly being relied upon by individual Claimants because it imposes considerable obligations on Data Controllers, to which they often fail to adhere (often, no doubt, because they are unaware of their obligations).  The perpetrators sometimes do not realise, for instance, that they should not process anyone’s data at all without first being registered with the Information Commissioner (indeed it is a criminal offence).  Ignorance of the law is not a defence.

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