Background
The Claimant, Chris McGrath, wrote a book entitled ‘The Attempted Murder of God: Hidden Science You Really Need to Know” under the pen name “Scrooby” which appeared to argue that modern science proved the existence of God (although Mr McGrath later contended that it was, in fact, a parody). In order to generate publicity for his book Mr McGrath posted a review of a book by Professor Stephen Hawking on Amazon.co.uk which gave details of his own book.
This “review” generated a long thread of comments many of which were critical of “Scrooby”. Mr McGrath participated in this thread using a number of different identities – of the 60 posts on the thread 19 were by Mr McGrath using various identities (Judgment [5]).
The Fourth Defendant, Vaughan Jones, was one of the most active participants in this thread. Mr Jones is an atheist blogger and tweeter (@vaughanjones82). The Judge described Mr Jones’ contribution to the debate in these terms
“in addition to expressing his own opinions on the topic, and his criticisms of Scrooby’s views (of which in general C does not complain), Mr Jones went further in two main respects: by investigating and “exposing” C personally as the real author of the book, and criticising him and his company with such words as “fraud” and “phony”; and by characterising C as a “creationist” … (Mr Jones caused C particular and understandable distress by naming C’s two young children in a pejorative context, which he now accepts he should not have done.)” [7]
In September 2010 Mr Jones opened what the Judge described as “a second front” by commencing a thread on the website richarddawkins.net. The Judge described what happened in the following terms
“Mr Jones submitted an originating article entitled “Dare to criticise a creationist? Be prepared to be sued…” in which he gave his version of his ongoing exchange with C/Scrooby on the Amazon website. This was approved by one of the moderators (there is an issue as to which) on Sunday 12 September 2010. There followed over the next four days until 16 September 2010 a thread of some 40 comments in response to Mr Jones’s original entry, including his own further contributions” [11]
On 1 April 2011 Mr McGrath and his company issued proceedings against Professor Dawkins, the Richard Dawkins Foundation for Reason and Science, Amazon and Mr Jones.
All the Defendants sought the dismissal of the claims on various grounds including that they were an abuse of the process bearing in mind the allegations made, the extent of the publication within the jurisdiction and the extent to which the defamatory meanings were true even on the Claimants’ account.
Judgment
After dealing with the background (Judgment [1] to [15]), the Judge dealt with four general issues: responsibility for publication, meaning, damage and abuse of the process.
As to responsibility for publication: Professor Dawkins and his UK Foundation argued that, on the facts, they were not publishers, Amazon relied on section 1 of the Defamation Act 1996 and reg. 19 Electronic Commerce Regulations 2002 (the “hosting” defence).
The UK Foundation contended that it was not responsible for the publication of the forum on which the material was published which was part of a similar but distinct US website, operated by a different entity. However, its summary judgment application failed because of a hyperlink from the UK site to the US forum. The Judge held that
“The law on liability for hyperlinks is in a state of some uncertainty at present. Even if the general English rule were to be as recently held in Canada, that a mere hyperlink does not render the operator of the linking website liable for the content of the linked site, the decision may well be a fact-sensitive one, especially when, as here, the two websites are very closely associated, the link is hidden, and the point of contact is the “Home” button which is normally regarded as taking you to the central hub of the same website you are already on. I therefore conclude that I am not satisfied at this stage that the 2nd Defendant was not answerable for the .net forum at the material time, and that it is a question fit for trial”. [26]
In relation to Professor Dawkins, because it was not entirely clear whether he had authorised Mr Jones’ original publication on the forum, his application for summary judgment was also refused [28].
In relation to Amazon, its application for summary judgment under section 1 was unsuccessful [44]. It was, however, entitled to rely on the defence under regulation 19. The Claimants had not clearly specified the location of the postings of which they complained and had not disclosed facts or circumstances making it apparent that the postings were unlawful ([47] and [48]). As a result, the claim against Amazon was struck out.
The second issue concerned the defamatory meaning of the allegations made. In relation to the comments published by Mr Jones on Amazon, the Judge that Mr McGrath had a sufficient case that it is capable of bearing the following meanings defamatory of him personally:
“a. that he has behaved unethically by trying to piggy-back off the success of others (Comment 20);
b. that he is an intellectual fraud because he fakes reviews, seeks to generate fake interest, piggy-backs off the success of others and is for these reasons intellectually dishonest (Comments 20, 35,);
c. that he has acted improperly by contacting one of Mr Jones’s Facebook friends and seeking to coerce personal information about Mr Jones from them (Comments 30 and 35);
d. that he has falsely represented to the Police that he is an employee of the 2nd Claimant company when he is not (Comment 41, read in the context of Comment 37 in particular);
e.(i). that the scientific views in his book are ridiculous;
e.(ii). so is his claim to have written his book as a parody when he believed that he was dying (Comment 44)” [62].
Although the words complained of were capable of bearing the meaning that Mr McGrath was “a creationist, a dogmatist, a Christian, a Catholic, and a person who seeks God through one religion only” these allegations were not capable of being defamatory as they were “known to be shared by many well-respected members of society” [63].
The Judge went on to hold that other threads made the following allegations about Mr McGrath:
f. that he is a liar who falsely claims not to mock non-believers, when in fact he is so hostile to Mr Jones’s atheist beliefs that for that reason he threatened him with police and legal action.
g. that he has improperly sought to gain commercial advantage for himself by piggy-backing on the work of a disabled person; and
h. that this conduct can fairly be described as desperate, sick and depraved.
i. that he is a charlatan because he makes unfounded threats of legal action. [67]
A number of other defamatory allegations derived from the material published on the Dawkins Foundation forum about Mr McGrath
“j. that he had abused his right to review the Hawking book, by using the review to promote his own book;
k. that he had falsely claimed to have scientific proof in his book for the existence of God, when in fact no scientific sources are relied on;
l. that he had failed his university course in film studies; I reject unhesitatingly the 1st, 2nd and 4th Defendants’ contention that it is not capable of being defamatory to say that someone has failed his degree. …
m. that he was failing financially in business;
n. that he had engaged in a pretence by reviewing his own work.
The Second Claimant,
o. that it was failing financially in business” [72]
On the third issue, the Judge struck out the claim for exemplary damages on the basis that it was misconceived and bound to fail [85].
The final issue was abuse of process. The Judge indicated that he would not strike the claim out as an abuse solely on the basis of the small number of readers. Furthermore, the allegations made were not so trivial as to merit striking out. The Court had, however, to look at “the extent of the marginal damage to C’s reputation caused by the words complained of, in the light of what C has himself published or otherwise admitted” [92].
The Judge concluded that certain matters were clear beyond argument:
“i. C did seek to promote sales of his own book by means of false reviews, purporting to be the favourable reaction of real independent readers when in fact he had written them himself.
ii. He did seek to take advantage of the reputation of Prof Hawking (a disabled man) to promote his own book, by inserting a puff for his book into the Amazon site for the Hawking book under the false guise of a review of that book.
iii. He did participate in the online Amazon debates using false identities purporting to be real people agreeing with and defending him, when in fact they were just his aliases.
iv. The book is published by his own company, which is a very small business that has only published his book and has no independent premises of its own.
v. The book contains no scientific source references to back up its purported scientific contentions.(This is admitted by C at para. 72.2 of his submission dated 8 November 2011, in which he refers approvingly to his own Yahoo review of his book, again pretending to be independent.) [92]
This meant that in relation to meanings a., b., e (i), g., h., j., k., n., and o., the respective Defendants were “overwhelmingly likely to succeed in defending it on the basis of justification and/or fair comment/honest opinion” [93]. The Judge also took into account the fact of “right of reply” – Mr McGrath had the full opportunity (which he frequently took) of participating in the debate. Furthermore, damages were likely to be minimal and out of all proportion to costs.
The Foundation offered a limited undertaking which was accepted by the Judge. However, in the light of Mr Jones’ “intellectual and personal hostility” towards Mr McGrath although the claims for damages were struck out the Judge was prepared to allow the action against him to continue “for the purpose of injunctive relief against republication” of certain of the allegations unless an undertaking not to repeat was offered. Mr Jones offered the undertaking and, as a result, the action was struck out.
Comment
The first point to be made about this action is that it appears, in the end, to have achieved a sensible outcome. Many of the claimants’ complaints were dismissed by the judge. It was found that, in relation to a number of others, the defences of justification and fair comment were bound to succeed. The other allegations were the subject of undertakings not to repeat by the Defendants. The judgment contains yet further confirmation that the law provides a high degree of protection for those who simply “host” discussion forums.
But the legal analysis of the judgment is the least interesting aspect of this unfortunate case which involved a huge and disproportionate waste of costs and court time. Neither of the main protagonists comes out of the case unscathed. On the one hand, Mr McGrath was using Amazon reviews, under a variety of false identities, to promote his own book. On the other hand, Mr Jones seems to have gone beyond the ordinary limits of debate in attacking Mr McGrath – both on Amazon and on the Dawkins website. But although deceptive and discourteous conduct may attract social disapproval the use of libel law in this kind of context is obviously inappropriate and manifestly disproportionate. Doubtless Mr McGrath was very upset by some of things which were said about him but a full blown libel action is hardly the way to deal with issues of this kind.
The implications for the “libel reform” debate are much less clear. It is difficult to see how any proposed reform of the law of libel could prevent a claim of this kind being brought. If, for example, the law took the approach of the Canadian court in Baglow v Smith (see our post here) – to the effect that “public conversations” on such a forum cannot be defamatory – there would, inevitably, still be room for argument. A determined claimant who was complaining about forum comments would doubtless seek to argue that, in the context, they were defamatory. The result would be a full blown summary judgment application of the kind that HHJ Moloney had to deal with in this case. Similar problems would arise in relation to other proposed reforms – for example, a substantial harm test would have to be applied to the detail of the allegations, resulting in a similar hearing.
Two other partial solutions suggest themselves. Firstly, more effective “complaint and take down” procedures. It seems that, if the postings complained of this in this case had been subject to closer scrutiny by the host then many of them would have been taken down at early stage. This might have avoided the escalation which took place. Second, a strong requirement for early mediation. Mediation might, in at least some cases, enable parties to avoid the libel courts altogether.
Although, in the final analysis, it is necessary to have a court system to resolve disputes this case illustrates how it is in everyone’s interests to devise mechanisms and procedures to make litigation a matter of last resort. Rows about bad tempered and discourteous internet comments are not the proper subject matter of High Court litigation.