In the case of Webb v Jones [2021] EWHC 1618 (QB) Griffiths J struck out a claim for libel based on seven Facebook posts due a of serious deficiencies in the particulars of claim. He refused permission to amend on the basis that the case was “unwinnable”. The case provides important lessons for those dealing with libel claims based on social media posts.
Background
The case concerned a libel claim based on Facebook postings by the defendant to a group called “Dodgy Horse Dealers” between 12 and 14 May 2020. The thread began with a question “Has anyone had any dealings with Annie Raynor? Good or bad please.” The defendant was a member of this Facebook group which had some 16,000 members.
The thread ran to over 150 pages with 382 comments and replies from multiple individuals. The claimant complained that 7 posts were defamatory of her. All 7 were defined as “the Defamatory Statements” with meaning, serious harm and distress being pleaded in respect of “the Defamatory Statements”.
Judgment
The Judge held that seven issues were raised by the strike out application:
i) Are the “Defamatory Statements” a single publication?
ii) Is the pleading of particulars of publication defective?
iii) Is the pleading of extent of publication defective?
iv) Is the pleading of reference to the claimant defective?
v) Is the pleading of meaning defective?
vi) Is the pleading of serious harm defective?
(i) Single publication?
In relation to the first issue the Judge held that the test was whether the various items under consideration were “sufficiently closely connected as to be regarded as a single publication”. On the facts, there was only one answer to that question: “no”. It was “quite impossible” to say that the seven Facebook posts complained of should or even could be regarded as a single publication [26].
The Judge emphasis that he was not making any decision of general application to Facebook posts but simply that “on the facts of these posts, and this thread, it is obvious that these were separate publications and fell, therefore, to be dealt with individually in the pleading” [27].
As a result the pleading of all the publications together was defective and “likely to obstruct the just disposal of the proceedings” within the meaning of CPR 3.4(2)(b) [28].
(ii) and (iii) Particulars of publication and its extent
The Judge noted that it was necessary to prove publication in an online publication case The judge held that as each of the seven posts was a separate publication and a separate cause of action, substantial publication must be pleaded and proved separately in respect of each [50].
He noted that
- The fact that the statement is visible on the interest is not enough to establish substantial publication [47].
- It is not enough that some has read it “If the reading is so rapid and superficial as to leave no impression, or no more than a fleeting impression which is of no consequence” [48].
In this case the claimant had not plead publication. The only pleaded basis for an inference of substantial publication was the size of the Facebook Group. This was not sufficient. It was clear that most of the posts had produced no reactions or responses at all [50].
As a result, the Particulars of Claim disclosed no reasonable grounds for bringing the claim which was an abuse of the Court’s process [52].
(iv) Pleading of reference
The Judge noted that the thread was long and it was rarely obvious who was being referred to. Some of the posts referred to the defendant by name, others to “Sharon/Annie” or “Sharon aka Anni”. Although this was defective the Judge noted it could be corrected by amendment.
(v) Meaning
This pleading was obviously defective because it did no distinguish between the 7 different posts. Again, this could be corrected by amendment.
(vi) Serious Harm
The Judge noted that this must be pleaded and that
“Serious harm may be inferred, but only in an appropriate case. It is not to be assumed, and it certainly cannot be assumed only because the statement is seriously defamatory on its face, even if it is. There must be facts, and the facts must be pleaded, like any fact essential to a cause of action” [63]
He considered the various points relied on by the Claimant in support of the case on serious harm and concluded that it was lacking in substance and that there was no indication that this could be rectified. In particular, he held that serious harm could not be established by reference to the gravity of the defamatory statements alone ([66] (iii)).
In relation to the various reactions to the pleaded post, the Judge noted that
“Most of the reactions consisted only of an emoji click. It is not clear from the reactions or any other evidence that the person reacting knew that the claimant was the person referred to, or knew who she was. It is vanishingly unlikely, on the only evidence available or obtainable, that the claimant’s reputation in the real world was damaged at all in the eyes of anyone by these posts; let alone to an extent which could conceivably be characterised as serious harm. This was confused and confusing ephemeral internet chatter, down thread, and swiftly lost in the surrounding hubbub. It is exactly the sort of case that section 1 of the Defamation Act 2013 was designed to stop” [69]
As a result, the Judge concluded that the Particulars of Claim disclosed no reasonable grounds for bringing the claim, that it was an abuse of process and likely to obstruct the just disposal of proceedings and it that it failed to comply with the pleading requirements of para 4.2 of Practice Direction 53B in Media and Communications Claims.
He held that there was no basis for the suggestion that the defects in the claimant’s case are such as to be capable of cure by amendment.
The Judge also noted the claimant’s failure to comply with the pre-action protocol and her misconceived application for a freezing order after the defendant had to sell her home in order to fund her legal costs.
The Judge’s damning conclusion was
“There seems to be no basis for the suggestion that the defects in the claimant’s case are such as to be capable of cure by amendment. The defects are not merely defects of pleading (although they do include such defects). The case is defective because it lacks any substance in essential respects” [98].
Comment
This case is an object lesson in how not to conduct a libel claim. There are a number of clear and important points to be borne in mind when pleading a social media libel claim:
- In most cases it will be necessary to plead each post as a separate publication.
- The meaning, extent of publication, reference to the claimant and serious harm must be pleaded separately in relation to each post relied on.
There are two specific points on which it might be argued that the Judge went further than the established guidance in the case law.
First, in relation to “proof of publication” the Judge was right to note the the burden of proving substantial publication is on the claimant. However, the view that he took concerning inference is arguably too strict. It can sensibly be inferred that a post on a Facebook group with 16,000 members was read by a substantial number of people. In the well known case of Stocker v Stocker, although the case failed on meaning it was accepted that publication had been proved on the basis that the message was visible to the 110 Facebook friends of the person to whom it was addressed. There was no evidence that any of them had read it.
Furthermore, the Judge’s suggestion that the reading of the post must be more than rapid and superficial is a novel one which raises the bar for internet libel claims above the level.
Second, the Judge’s analysis of serious harm is open to question. He rightly accepted that serious harm may be inferred. However, his view that “serious harm cannot be established by reference to the gravity of the defamatory statements alone” is inconsistent with the previous case law. In Doyle v Smith [2019] EMLR 15, [117] Warby J approved the following words of HHJ Moloney QC in Theedom v Nourish Training (trading as CSP Recruitment) [2016] EMLR 10:
“Depending on the circumstances of the case, the claimant may be able to satisfy section 1 without calling any evidence, by relying on the inferences of serious harm to reputation properly to be drawn from the level of the defamatory meaning of the words and the nature and extent of their publication.”
(see also Parris v Ajayi [2021] EWHC 285 (QB) at [167] to [171]).
In other words, in this case if the allegations were indeed grave and had been published to a substantial number of members of the Facebook group (which had a particular interest in the subject matter) then an inference of serious harm could be drawn.
These two points suggest that the Judge’s decision that the defects to the claim could not be cured by amendment may have been a harsh one.
It is nevertheless clear, beyond serious argument that, on the pleaded case that was before him, Griffiths J was plainly right to strike out the claim. This case is a salutary reminder of the need for careful pleading in online libel cases.
Hugh Tomlinson QC is a member of the Matrix Chambers Media and Information Practice Group and an editor of Inforrm.
With respect your conclusion here that the right judgement was made seems to contradict your points in regard to extent of publication, in which the judge was wrong, and in serious harm, in which the judge was also wrong. How can it be harsh that the decision to strike out was made yet also the right decision? Strike out is a draconian step. The allegations made were indeed grave, appalling allegations of criminal behaviour and serious malfeasance, there is no doubt that serious harm was shown by inference and the judgement in this case was without question a miscarriage of justice against an ordinary person. The orders made prevented the claimant from appealing despite Justice Warbys comments in Price V MGN that cost should not prevent the ordinary person from gaining justice in this case it has. This judgement was not a good day for the judiciary and in particular the Media and Comms list.