online defamation cases 3

This page highlights online defamation cases and injurious falsehood cases in Australia, the US, New Zealand, UK and other jurisdictions from 2005 onwards.

It covers -

• Kaplan v Go Daddy (Australia, 2006)
• Smith v Williams (UK, 2006)
• Mancini (Italy, 2006)
• Holy Moly and Parker (UK, 2006)
• Scheff v Bock (US, 2006)
• Vesikko (Finland, 2007)
• Gentoo (UK, 2007)
• Warman (Canada, 2007)
• Griffin (Canada, 2008)
• Firsht (UK, 2008)

     Kaplan v Go Daddy & Ors (Australia, 2005)

A preceding page of this profile noted that emergence of uniform defamation law in Australia appears to have encouraged some corporate litigants to rely on the tort of injurious falsehood in action against bloggers and other online publishers.

Adam Kaplan & Anor v Go Daddy Group Inc & 2 Ors [2005] NSWSC 636 concerned an interlocutory injunction over a 'sucks' site that featured pseudonymous criticisms of a car dealer. The injunction - addressed to the site operator and domain name registrar - sought to quickly take the site offline. (An interlocutory injunction would have been less likely in a defamation case.)

Consistent with injurious falsehood involving a higher barrier than defamation under the Uniform Defamation Law, White J noted that the plaintiffs were required to prove the three elements of the tort -

that the second defendant has published statements which are false, that the false statements concern the business or property of the plaintiff, that they were published maliciously, and that they are calculated in the ordinary course of things to produce, and that they do produce, actual damage. Such damage must have been wilfully and intentionally caused by the defendant’s publication.

White J commented that

The second defendant has an unresolved dispute with the second plaintiff. In my view, he established the site for the purpose of disparaging the second plaintiff, its business and products. ... There is a strong prima facie case that the website was established by the second defendant with a malicious intent, and for the purpose of damaging the second plaintiff's business. ...

There is a prima facie case that the second defendant seeks to use the internet to publish anonymously false and misleading disparagements of the plaintiff following his dispute with it. The comments and headings on the website are posted anonymously. The evidence was not clear as to the extent to which the very establishment of the website was done anonymously. The plaintiffs identified the second defendant as the creator of the website by deduction ....

I do not consider that the special rule which applies in defamation cases in relation to matters of public interest and concern, preclude the grant of an interlocutory injunction. ... a modified form of paragraph 3(a) should be made, to restrain the defendant, not only from maintaining the current domain, but from establishing or maintaining an internet website of the same or similar name. I also consider that the second defendant should be restrained from publishing false statements of or concerning the second plaintiff

     Smith v Williams (UK, 2006)

In 2006 Michael Keith Smith, a prominent member of the UK Independence Party, won what the London Times characterised as "an unprecedented £10,000 in libel damages" from Tracy Williams over "an abusive campaign against him on an internet bulletin board".

Smith brought High Court proceedings against Williams, who had used a pseudonym to post claims on a Yahoo! discussion board that he was a "nonce", sexual offender, racist bigot, a Nazi and had sexually harassed a female colleague. In 2004 he obtained a court order requiring Yahoo! to disclose his assailant's identity, inspiring what the Judge Macduff labelled as "frenzied abuse" continuing into 2005. Macduff criticised Williams for a contemptuous response to a request for an apology.

In assessing damages the Court commented that although the defamation was available throughout the world, it was likely that it had been read by few people and that many would have dismissed the posts as "ramblings". However, Smith was awarded £5,000 general damages plus £5,000 aggravated damages to reflect Williams' response. Smith received an injunction preventing the publication of the same or similar libels. Williams was ordered to pay the costs, upwards of £7,200.

The Times commented that was the first time that the High Court has awarded damages for defamatory comments on an internet bulletin board, although a retired teacher won £1,250 damages in 2002 for comments by a former pupil on the Friends Reunited site.

     Mancini (Italy, 2006)

Italian journalist Roberto Mancini was ordered by a Val d'Aosta court to pay US$16,900 in fines and damages for statements in his Il Bolscevico Stanco [The Weary Bolshevik] blog, which is hosted in the US.

The judge said that the information published by Mancini was partly true but was not reported appropriately, and condemned the "vulgar tone" - "Mancini expresses himself in a manner best suited to a brothel".

The conviction has been hyped as

sending ripples of alarm through the global blogging community, raising fears over future censorship of blogsites in Italy and other countries.

Reporters sans Frontières commented that it appears Mancini "is being punished for his bad language and not because he posted false information, which is unacceptable" and that he was also being held responsible for comments posted by readers, "a decision which goes against European legal jurisprudence".

     Holy Moly and Parker (UK, 2006)

UK gossip site Holy Moly apologised and paid "substantial" damages to soap opera star Chris Parker over claims on that site and in a weekly subscribers' email.

In an apology disseminated via email Holy Moly explained "We royally [effed] up and are deeply sorry for the upset and damage we've caused Chris". Its litany of retractions included -

We also reckoned his career was heading down the dumper. Nothing could be further from the truth ...

We also now understand that Chris has never even been to a sauna in the USA, and it was untrue of us to allege that he misled his family, friends and industry bosses ...

You may have also got the impression that Chris engaged in homosexual fetishist role play activities ... This has turned out to be complete and utter nonsense and we should never have printed it ...

Holy Moly would like to say a massive SORRY to Chris and promise we will never again say such things. We have paid Chris damages and are currently selling children, shoes and CDs in order to make sure his lawyers get paid.

Ouch!

     Scheff v Bock (US, 2006)

In October 2006 a Florida jury awarded Sue Scheff US$11.3 million costs and damages over recurrent bulletin board accusations by former acquaintance Carey Bock that she was variously a crook, a con artist and a fraudster.

Bock failed to defend herself in court, telling USA Today that she had no money to pay the damages and had been silenced: "I don't feel like I can express my opinions". Observers, such as this site, commented that there is no wholly unfettered right of expression: people for example are not free to shout 'fire' in a crowded theatre or falsely claim that a neighbour is a paedophile or thief.

     Vesikko (Finland, 2007)

In 2007 Finnish student Toni Vesikko was found guilty by Nurmes District Court of intentional defamation after he posted an unauthorised video of his teacher on YouTube, claiming that she was mad.

15 year old Vesikko was fined US €90, with damages of €800 for "causing harm and suffering" and €2,200 court costs. He had made an unauthorised video of his teacher singing karaoke at a school party and then posted it on YouTube as Karaoke of the mental hospital, claiming that the teacher was a lunatic. The court said Vesikko's actions "falsified facts" about her mental state and the institution. Those actions had caused her to suffer anxiety, depression and insomnia.

     Dadsplace and Gentoo (UK, 2007)

UK courts have increasingly demonstrated a willingness to strip anonymity from the authors of defamatory posts in online fora. One example involved family law site Dadsplace, with posts being made about housing organisation Gentoo Sunderland, its employees and owner. Gentoo's lawyers ran up a bill estimated at £300,000 before the proprietor of a Gentoo competitor admitted involvement, immediately prior to cross-examination. The defendants were required to pick up those costs, along with damages of £100,000 awarded to Gentoo's chief executive Peter Walls and £10,000 to the organisation.

The same week saw the High Court remove anonymity from the authors of arguably defamatory (rather than merely abusive) posts on the owlstalk.co.uk site regarding managers of the Sheffield Wednesday football club. The judge commented that the right to maintain their anonymity and express themselves freely was outweighed by the targets' entitlement to take action to protect their reputation in relation to allegations of "untrustworthiness and dishonest behaviour". The Club's solicitors said:

There seem to be quite a lot of websites that are using their anonymity to make comments about people and think that there shouldn't be any liability for it. But the internet is no different to any other place of publication, and if somebody is making defamatory comments about people then they should be held responsible for it. What these cases do is just confirm that's the law - the law applies to the internet as much as it does to anything else.

    Warman (Canada, 2007)

In 2007 Ottawa anti-racism campaigner Richard Warman won a C$30,000 judgment against white-supremacist Paul Fromm for nine defamatory internet postings he characterised as "an oil spill on my reputation. From had made the postings on the Freedomsite.org site, using a server located in the US, and on the supremacist Canadian Heritage Alliance site Fromm was ordered to post full retractions on all the websites within 10 days.

Judge Métivier commented that Fromm's dominant motive was to attack Warman personally in retaliation for his use of legal processes to restrain hate speech and that he published the statements "either knowing the fundamental falseness of the accusations he levelled at Mr. Warman, or being reckless as to the truth of these". "Given the instant and possibly global dissemination of messages over the Internet, the damage may continue for years."

    Griffin (Canada, 2008)

During the following year British Columbia Supreme Court Justice Halfyard ordered Patrick Michael Sullivan of that province to pay an Australian man over C$179,000 in damages arising from hundreds of libelous statements he made on numerous websites over a four-year period.

The court found that Sullivan defamed Robert Griffin, a resident of Sydney (NSW), in postings from May 2003 up until the trial in in April 2008. The judge ruled that Sullivan maliciously made numerous false allegations that Griffin was a killer, stalker, coward, sexual predator, deviate and hate-monger who threatens people with death and violence. Griffin said that the postings crushed him emotionally and physically, ruined his relationship with his girlfriend and made him fearful of going out in public.

Sullivan was ordered to pay C$150,000 in general and aggravated damages for libel, C$25,000 for breach of privacy and C$4,600 in special damages. The court imposed an injunction to prevent Sullivan from posting further defamatory messages. Sullivan is also restrained from contacting or communicating with the plaintiff "directly or indirectly in any way or by any method".

    Firsht (UK, 2008)

UK businessman Mathew Firsht was awarded £22,000 damages in the High Court in London during 2008 over libelous entries on Facebook. Firsht accused a former friend of creating a false personal profile and a company profile called "Has Mathew Firsht lied to you?".

The defendant unsuccessfully claimed that "strangers" attending an impromptu party at his address day sneaked off to a spare bedroom and created the profiles on his PC.The profiles featured information regarding Firsht's whereabouts, activities, birthday, relationships and supposed sexual orientation and political views. They also falsely claimed that he owed substantial sums which he had repeatedly avoided paying by lying.

The judge said that Firsht as a very private person was extremely upset by the gross invasion of his privacy and the defamatory material, an injury made worse by his being compelled to endure an expensive and time-consuming court process to achieve vindication. Firshst would have accepted an apology if the defendant had offered one at an early stage, thus avoiding the distress and expense of litigation.

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