Where could you publish strident abuse about someone, then
successfully defend the ensuing libel claim?
Answer: on internet bulletin boards, according to a top libel
judge.
The novel point arose in libel actions brought by a claimant
against various people who posted unflattering remarks about
him on an online bulletin board hosted by a financial
website.
Mr Justice Eady said such postings may be more akin to slander
than libel, as they are often uninhibited, casual, and ill
thought out – and those who participate expect a
certain amount of 'give and take'.
The judge said this was an important factor when interpreting
the meaning of words which were the subject of any defamation
claim.
Casual abusive postings were not always understood by
reasonable readers to be defamatory: they might be understood
as "mere vulgar abuse", not to be taken literally or
seriously.
Eady J. said there was vigorous debate on the internet about
the claimant and his conduct arising from his role in running a
shareholder action group in connection with a particular
company, and there were allegations that shareholders'
interests had been damaged due to large-scale fraud.
The main point in the case was that the judge maintained a
'stay', putting all the claims on hold
indefinitely.
However, it's noteworthy that he also chose to make
the following remarks about the bulletin board postings:
"Some of the allegations would appear on their face to be
defamatory – allegations of dishonesty or
criminality, for example.
"Others might fall into what is generally known in the
context of slander as being 'mere vulgar
abuse', as opposed to genuine examples of
defamation.
"For example, [the claimant] has been described by some
as a 'destructive twerp', as a
'bulletin board bully', as 'suffering
from megalomania', as 'suffering from bipolar
disorder', and one allegation was to the effect that,
even if his mother told him he had been a naughty boy, he would
sue for defamation of character."
Other postings suggested the claimant had been
"exercising silly, bully-boy tactics" and trying to
"bully hard-earned cash out of people".
The judge said some of the allegations, in context, might
ultimately be held to be defamatory, but others might be
understood to be "mere vulgar abuse, which would not
necessarily be taken by reasonable readers to be intended to be
accurate and, therefore, may not be defamatory".
The upshot is that the defence of 'vulgar
abuse' (i.e. the words are not defamatory) –
which has historically been associated with slander cases
– may now also be arguable in relation to libel
claims involving off-the-cuff internet postings.
The difficulty will be in guessing where libel judges and
juries will draw the line. After all, the well-established
legal test for what is defamatory is whether the relevant words
tend to:
- expose someone to hatred, ridicule or contempt;
- cause him to be shunned or avoided;
- lower him in the estimation of right-thinking members of society generally; or,
- disparage him in his business, trade, office or profession.
The test is easily satisfied, and it is difficult to see
which of the abusive bulletin board comments, quoted above,
would not be considered defamatory under the test's
broad ambit.
Eady J. appears to be flying a kite for a liberal approach to
be taken to words that are bashed out online with little
fore-thought. It is not yet clear whether this novel approach
may be applied to individuals who post user generated content
(UGC) on media organisations' websites in response to
news and comment pieces.
Courts may decide that verbal attacks in UGC are more
decidedly made to the world at large with intent, and are a far
cry from the relatively intimate banter of bulletin
boards.
Media organisations, on whose websites such UGC is published,
are even less likely to have a 'vulgar abuse'
defence, but Eady J.'s remarks will still be of
interest to them.
Nevertheless, his remarks will have to be developed further in
case law before anyone could rely on them confidently in costly
court battles.
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