After the sensational award issued to Max Mosley in his privacy claim against the News Of The World, the hearts of individual “bloggers” on the online financial discussion forum ADVFN may have been pounding as Eady J handed down judgment on whether a subsisting stay of proceedings should be lifted opening the door to a full scale libel suit against them. The stay was maintained, and the bloggers avoided payment of damages to the subject of what was found to be “mere vulgar abuse”. And, Eady J added, while not wishing to encourage “vulgar abuse”, it was not necessarily appropriate for it to be taking up the scarce resources of the civil courts.
The High Court case was brought by Nigel Smith, also known by his online avatar “Anomalus”. Acting as the coordinator of an action group to recover shareholders investments from the alleged Langbar fraud, Smith had himself lambasted an individual known as “Wiganer” as a fraudster, and alleged that various others were falsely claiming compensation for the Langbar losses. These allegations prompted comments from other shareholders and contributors to the discussion board in support of those who had been “threatened and bullied” by Smith. Smith obtained Norwich Pharmacal orders that required ADVFN to disclose the IP addresses of those concerned. News of the legal proceedings spread across the ADVFN board triggering more (alleged) defamatory comment against Smith who – unemployed and thus unfettered by the requirement to pay court issue fees - issued 37 sets of proceedings!
The stuff of libel proceedings?
The Judge took a dim view of Smith throughout, at one point commenting that “many would be surprised to see any of this made the stuff of libel proceedings – the object of which is to restore reputation”.
For legal observers more interesting perhaps than whether Smith had a reputation to protect, was the Judge’s ruling on the nature of discussion boards. Of comments made on a discussion board, Eady J observed that they were
- read by relatively few people, who share an interest in the subject matter;
- like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar); and were
- often uninhibited, casual and ill thought-out.
The Judge also noted that the participants often used pseudonyms or “avatars”, and that this was likely to be a “disinhibiting factor”. The register of these kinds of forums was characterised by witty retort and as such the Judge acknowledged that “give and take” was expected of participants.
Thus the Judge considered that in the context of defamation law, postings and communications of this kind are more “akin to slanders”. The distinction between the two causes of action is important because slander is only actionable if the claimant can prove special (monetary) damage caused by the imputation - however injurious to reputation, however malicious the motive of the defendant.
In any event, in the context of this case, the comments if not vulgar abuse – (“My wipers scraped better things from my car windscreen”, for instance); were arguably protected by defences of qualified privilege as the contributors were mainly shareholders in Langbar and therefore had legitimate interest in the subject matter of the discussion board. One of the defendants, a litigant in person, defended his remark that Smith was a “destructive twerp” as fair comment. On that basis the Judge came to the conclusion that to lift the stays would be “totally without merit”.
Eady J was careful to confine his ruling to the facts, saying that he would not suggest for a moment that “’blogging’ cannot ever form the basis of a legitimate libel claim”. Despite this, the effect of his ruling is that defamation committed on an internet bulletin board is more likely to amount to slander, a cause of action more difficult to prove than libel.
Case citation: Smith v ADVFN & Others  All ER (D) 335 (Jul)
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