Labourhome’s libel victory – the full judgement

This is a guest post by barrister James Tumbridge (pic left) with an exclusive report about the official judgement following Labourhome’s libel victory, and the lesson bloggers can learn from it regarding their responsibility for comments which are posted on their sites.

Defamation – Any lesson from Labourhome’s misfortune?

Following the decision in Kaschke v Gray & Anor (‘the Labourhome case’) [2010] EWHC 690 (QB) (29 March 2010), bloggers had reason to fear liability for comments posted on the websites they control.  On July 23rd 2010 the English High Court heard the next round in the Labourhome libel trial and struck out the libel claim, but was this a victory for bloggers in general or just an isolated decision on the facts?

The Labourhome case’s background

Kaschke v Gray & Anor [2010] EWHC 1907 (QB) is the third hearing of a case of defamation brought by Miss Kaschke against both the author of an alleged defamatory comment on the blog based website ‘Labourhome’ and the editor of that site Alex Hilton (pic right). In April 2007 the first defendant ‘Gray’ posted the alleged defamatory comment about Kaschke on Labourhome suggesting she was formerly linked to a terrorist group ‘Baader-Meinhof’ and that she had left the Labour Party to join the Respect party. Baader-Meinhof were a left wing terrorist group who are linked to many deaths in Germany in the 1970s, and the group was active well into the 1990s. Kaschke took objection to the remarks and complained to the editor of the site, the second Defendant ‘Hilton.’ Hilton admitted that on April 9th 2007 a poster with the user name ‘Grayee’ posted the article complained of on the Labourhome website, but he denied writing the words complained of or any part of them and asserted that he did not participate in any way in their publication beyond being the person who ultimately controlled the website. The question at the heart of the dispute for Hilton was therefore what liability did he or other editors of blogs and websites attract for the comments of others posted on sites they control?

Mr. Justice Stadlen heard the matter which concerned applications by the two remaining defendants to strike out the case as an abuse of process. They follow an unsuccessful application to Master Rose by the second defendant, Hilton, for summary judgment based on separate defences under section 1 of the Defamation Act 1996 and Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, and appeals on both were refused by Stadlen J. earlier in 2010. In that earlier decision Stadlen J. found there are a number of aspects Hilton’s role that proved insufficiently passive to gain the protection of either section 1 of the Defamation Act or Regulation 19. Examples include Stadlen J.’s reference to the Master’s judgment in paragraphs 27 & 28 – of admissions by Hilton in his defence and witness statements:

“First Mr Hilton accepted that he was the operator of the website. Second he accepted that he initiated a system under which entries on the website could be and were described as recommended and that he could himself adjust the score required to entitle any entry to be so described. Third he accepted that he himself was involved in the promotion of posts, that is to say to place them in a more prominent position then they would otherwise be on the website. He cited the following extract from Mr Hilton’s first witness statement: ‘Whether or not I promote a post is based broadly on the following factors: (a) how busy I am and whether I see a link to the post on the home page; (b) how new it is; (c) whether it has been recommended; (d) whether it has a large number of comments; (e) who it is written by; (f) whether, if I look at the full post, it is interesting on the face.’”

“Hilton further accepted that on promotion he may make changes. “On promotion I may (but do not always) quickly check the piece for spelling and grammar and make corrections. However that it is the only time that I ever changed a person’s post.” Fourth Mr Hilton accepted that there are occasions, albeit rare, when he would take it on himself to delete material from the website: “The system does allow me to remove articles from the website and I have done this in the past in response to a complaint or because I think that removal is otherwise necessary. I would estimate that I had done this on only four or five occasions prior to August 2007 (i.e. the date on which I first saw a letter from the claimant’s lawyers). There have been occasions where a pseudonymous member (i.e. a member who has signed up using details that are clearly not accurate) and has written offensive materials”

On that basis a return before Stadlen J. was not certain to lead to a strike out decision in Hilton’s favour since Stadlen J. had taken the view there was an argument that Hilton was in part culpable.  However, Stadelen J. did find for Hilton and in part due to the findings of Eady J. in a related case – Kaschke v Osler [2010] EWHC 1075 (QB) – where Eady J. had found Kaschke’s action were an abuse of process.  In both actions Kaschke sought damages for loss of reputation from allegedly libellous blogs, in this action written by Gray and posted on his own and Hilton’s websites and in the other action written by Mr. Osler and posted on his website. In this action the claim had been narrowed to an allegation that the claimant was once suspected by the West German authorities of being a member of Baader-Meinhof, the terrorist group that carried out bombings, robberies and murder.  In the Osler action Kaschke’s complaint was that Osler’s blog falsely suggested that she had been accused of being a member of the Baader-Meinhof terrorist group.  In the Osler action Eady J., having reviewed the background, including things written by Kaschke and admissions made by her, held that even if the jury came to the conclusion that none of the defences raised by Osler could succeed he could not imagine that the damages would be other than very modest.  Eady J. took the view that any such award would be out of all proportion to the time and money spent on the litigation and in particular to the cost of a two week jury trial. He came to the conclusion that this was one of those unusual cases in which the doctrine of abuse of process as discussed by the Court of Appeal in Jameel (Yousef) v Dow Jones and Co Inc. [2005] QB 946 should be applied, and therefore struck out the action on that ground. Hilton and Gray therefore requested a strike out as Kaschke’s claim againt them was the same as that against Osler and must therefore be an abuse of process.

The decision

Stadlen. J. quoted extensively from the decision of Eady J. and noted that Osler had made it clear in the course of the hearing that he would be prepared to join in any reasonable and proportionate statement reaffirming his acceptance of Kaschke’s innocence.  In addition Osler had allowed Kaschke a right of reply on his blog of some length.  These facts together with Kaschke having posted a Spiegel article that to some suggested a link to Baader-Meinhof, and the lapse of time between Osler’s action in allowing the right of reply before Kaschke brought proceedings (10 moinths), meant the case fell within the special exception of Jameel (Yousef) v Dow Jones & Co and was not worthy of continuing.  Eady J.’s critical conclusion was that even if none of Osler’s defences succeeded any damages awarded to Kaschke would be very modest and out of all proportion to the time and money spent on the litigation and in particular to the cost of a two week jury trial.
Turning to Gray & Hilton’s applications they had to show they too came within the Jameel (Yousef) v Dow Jones & Co decision.  It required per paragraph 40 of that decision that the Claimant’s ‘reputation has suffered no or minimal actual damage’  and that it was not worth pursuing when considered against eh costs of the litigation.  Fortunately for Gray & Hilton the prejudicial effect of the Osler case was such that Stadlen J. concluded at paragrpgh 21 of his judgment that “ There is no realistic prospect of an award of more than very modest damages in this action and that for similar reasons to those identified by Eady J. it would be an abuse of process for this action to proceed to trial.”

Comment

Whilst the case was thrown out it sets no guidance for bloggers on their liability for comments posted on their sites.  In that regard this is an isolated case on its facts as finding a rare safety position behind the case of Jameel (Yousef) v Dow Jones & Co, that prevents such cases where they are not deemed worthwhile.  The important point to note here is that Stadlen J. accepted that the cases could have found for Kaschke and there was nothing wrong in the grievance she felt; the weakness in her case stemmed from the manner in which it was brought and the minimal damage she’d suffered when viewed against the clarifications of those who’d written about her and the underlying truth of her wrongful arrest which had created the connection to the Baader-Meinhof group.  Thus this decision, whilst a victory for Gray and Hilton, is not a wider victory for bloggers.  Bloggers should, in fact, take the existence of this case as the lesson that they could be held liable for comments posted on their websites, and only comment control is going to reduce their risk.

In which case what can bloggers do?  Bloggers must be wary of comments and preferably –

(1) Moderate them, and if in doubt remove them, especially if advised they are defamatory.

(2) Bloggers based in England would also be well served to issue apologies. This is because section 2 of the Defamation Act 1996 provides for ‘making amends’ and allows a blogger to apologise or correct the statement in writing. Whilst such ‘making amends’ doesn’t guarantee absolvement it will be a point in the defendant’s favour. Importantly, should the offer to the person defamed be accepted, the defendant will not then be at risk of a defamation suit.  Indeed as Osler’s case demonstrated such offers can be helpful in a general defence, and his granting of a right of reply and offer to affirm the innocence of the accused was influential on the decision of the Court.

Bloggers should therefore watch what gets published and seek to make amends, which will reduce the risk of liability. Regrettably the only way to be risk free of defamation actions based on the comments left on a blog is not to have them, but what sort of blogosphere would that leave?

James Tumbridge Barrister & Counsel to Gowlings (UK) LLP

Thank you James!! And yes, this is a very important warning for bloggers to note. I have certainly deleted defamatory comments posted on my site.

*I’m not sure what is happening to Alex’s Labourhome blog. Nothing has been posted for five weeks after the site was hacked.

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