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Defamed by Persons Unknown

The case of Smith v Unknown Defendants [2016] EWHC 1775 (QB) was a libel action against unknown defendants who had published defamatory material on a website.  The Queen’s Bench Division granted the claimant’s application for default judgment against the second defendant in his absence and granted summary relief of £10,000 in damages as well as injunctions prohibiting publication of further allegations and requiring the removal of any allegations placed elsewhere.

Q.  What was the background to the case?

The claimant was a former Conservative councillor who now works as a McKenzie Friend and runs a blog which sometimes deals with child protection matters. He brought libel proceedings against three individuals involved in the publication of a satirical website

The website, described by the claimant as ‘a more vulgar version of Private Eye’, published allegations, among other things, that the claimant was a child rapist and paedophile.

The website is a ‘wiki’ site and thus third parties can add and edit content. It has worldwide popularity and is used as a platform to expose perceived wrongdoing. Its administrators actively take steps to hide the country from which it operates and those involved with the website.

The first defendant was an administrator of the website, the second defendant was a user and the third defendant was unknown operators.

The claimant had initially been described on the website as a ‘zealot’ in child protection matters. He did not complain about this remark, considering it satirical. However, the first and second defendants subsequently amended the website to refer to the claimant as a ‘known child molester’, paedophile and child rapist. Various other serious allegations were made which the judge Mr Justice Green described as ‘upon any view, vile’. Additionally, graphic mock-ups were published of the claimant involved in sexual activity.

The first defendant responded in a dismissive and vulgar manner to the claimant’s complaint and subsequent letter of claim. The claimant issued proceedings for libel, but subsequently asked the court to stay the claims against the first and third defendants after the offensive material was removed and replaced with tamer content that the claimant was willing to tolerate.

The second defendant, whom the claimant asserted was a well-known internet troll, did not respond to the claim. The claimant applied to the court for default judgment pursuant to CPR 12.3(1) and 12.4(2) and summary disposal pursuant to section 8 of the Defamation Act 1996 (DA 1996).

Q. What issues were before the court?

The court had to consider whether:

  • the claimant could proceed against a person unknown;
  • the matter could proceed in the absence of the second defendant, who had not attended the hearing of the application;
  • judgment should be entered;
  • an award of damages should be made;
  • injunctions should be granted.

Q. How did the court decide these issues?

The court followed the roadmap set out in Brett Wilson LLP v Person(s) Unknown [2015] EWHC 2628 (QB), in which an unknown defendant was similarly seeking to defame with impunity by taking steps to avoid identification and refusing to engage in the litigation.

In the instant case, Green J was satisfied that the second defendant was correctly described, ie in such a way as to identify him or her with sufficient certainty. On the issue of service and notification of the hearing, which is often an obstacle in claims against unknown defendants, the judge was satisfied that the second defendant had been duly served—the defendants had in fact published pre-action documentation on the website. As in Brett Wilson, the judge concluded the defendants were ‘hiding’, having failed to acknowledge proceedings or formally engage at all. Satisfied that there was no good reason to adjourn the hearing, Green J proceeded. He said to do otherwise would be ‘allowing the Court’s process and jurisdiction to be suborned by an act of mute defiance’.

Pursuant to CPR 23.11(1), a claimant is entitled to judgment as appears to the court proper on the basis of the particulars of claim. Green J agreed that, on the documents he had seen, the standard of proof had been met and the allegations in the particulars of claim proven. As in Brett Wilson, he considered the second defendant to be at least an ‘editor’ for the purpose of section 10(1) of the Defamation Act 2013 (DA 2013). Green J was satisfied that serious reputational harm had been suffered, within the meaning of DA 2013, s 1(1). The website was widely read and commanded respect and attention. The judge found that the claimant’s reputation would have been substantially and deleteriously harmed, as well as his ability to receive fee-paying work.

Turning to damages, Green J awarded £10,000, the maximum permissible under the summary procedure of DA 1996, s 9(1)(c). He considered this amount appropriate given the popularity of the website and the vile and offensive publications thereon and the need for vindication. Green J allowed the second defendant to seek to apply within 14 days to vary the level of damages, on the condition that identification was provided.

Finally, Green J was satisfied that, unless enjoined, the second defendant would persist in the offensive campaign against the claimant. He therefore granted an injunction prohibiting further publication of the defamatory statements.

Q. How does this judgment fit with other decisions in this area?

The judgment follows Brett Wilson, albeit in this case it seems that the claimant did not seek or obtain a Norwich Pharmacal order in the first instance (Norwich Pharmacal Co v Customs and Excise Comrs [1974] AC 133).

This case shows that there is now an established path for claimants when dealing with anonymous defamation on websites that operate beneath the radar. Sadly, it seems inevitable that cases like this will become very common given the increase in the number of websites operating anonymously.

Q. What should lawyers and their clients take from the judgment?

While it is disappointing that claimants will sometimes need to issue High Court proceedings in order to have demonstrably untrue and damaging content removed or filtered (whether by a website or by search engines), the procedure is relatively straightforward insofar as defamation proceedings are concerned. Assuming defendants are unwilling to identify themselves, a claimant will need to jump through a limited number of hoops: sending a letter of claim, filing and serving a statement of case, filing certificates service, waiting 14 days, and then lodging an application with evidence of service or notification, serious harm (or its likelihood) and the need for an injunction. As an injunction and assessment of damages will nearly always be needed, a High Court hearing will also be required. Normally only one hearing will be necessary, although in many circumstances it will be prudent to seek permission from the practice master for permission for alternative service of documents at the point of issue.

As Warby J commented in Brett Wilson, the summary disposal procedure under DA 1996, ss 8 and 9 has been little used to date. However, it appears to be the most suitable mechanism for cases of this nature where a final injunction (and an award of vindication) is needed as promptly and cost-effectively as possible. While it limits the amount of damages that can be awarded, this will normally be academic against a defendant who is unknown and likely to remain unknown and may be of limited means.

One final cautionary note, in Smith the allegations were serious and widely read. The judge had no trouble in finding that serious harm to the claimant’s reputation had been suffered. However, where this is less clear cut (eg content is upsetting or intrusive, but may not cause serious harm to reputation), a court may find that the cause of action has not been established. Practitioners should therefore consider the most appropriate cause of action. In many instances of online trolling, harassment may be a more suitable claim.

Brett Wilson LLP partner Iain Wilson was interviewed by Robert Matthews. 

This article was first published on Lexis® PSL on 27 July 2016 and is reproduced with permission and thanks. 

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