UK: To Defame, Or Not To Defame: That Is The Question

Last Updated: 2 October 2008
Article by Nigel Hanson

Where could you publish strident abuse about someone, then successfully defend the ensuing libel claim?

Answer: on internet bulletin boards, according to a top libel judge.

The novel point arose in libel actions brought by a claimant against various people who posted unflattering remarks about him on an online bulletin board hosted by a financial website.

Mr Justice Eady said such postings may be more akin to slander than libel, as they are often uninhibited, casual, and ill thought out – and those who participate expect a certain amount of 'give and take'.

The judge said this was an important factor when interpreting the meaning of words which were the subject of any defamation claim.

Casual abusive postings were not always understood by reasonable readers to be defamatory: they might be understood as "mere vulgar abuse", not to be taken literally or seriously.

Eady J. said there was vigorous debate on the internet about the claimant and his conduct arising from his role in running a shareholder action group in connection with a particular company, and there were allegations that shareholders' interests had been damaged due to large-scale fraud.

The main point in the case was that the judge maintained a 'stay', putting all the claims on hold indefinitely.

However, it's noteworthy that he also chose to make the following remarks about the bulletin board postings: "Some of the allegations would appear on their face to be defamatory – allegations of dishonesty or criminality, for example.

"Others might fall into what is generally known in the context of slander as being 'mere vulgar abuse', as opposed to genuine examples of defamation.

"For example, [the claimant] has been described by some as a 'destructive twerp', as a 'bulletin board bully', as 'suffering from megalomania', as 'suffering from bipolar disorder', and one allegation was to the effect that, even if his mother told him he had been a naughty boy, he would sue for defamation of character."

Other postings suggested the claimant had been "exercising silly, bully-boy tactics" and trying to "bully hard-earned cash out of people".

The judge said some of the allegations, in context, might ultimately be held to be defamatory, but others might be understood to be "mere vulgar abuse, which would not necessarily be taken by reasonable readers to be intended to be accurate and, therefore, may not be defamatory".

The upshot is that the defence of 'vulgar abuse' (i.e. the words are not defamatory) – which has historically been associated with slander cases – may now also be arguable in relation to libel claims involving off-the-cuff internet postings.

The difficulty will be in guessing where libel judges and juries will draw the line. After all, the well-established legal test for what is defamatory is whether the relevant words tend to:

  • expose someone to hatred, ridicule or contempt;
  • cause him to be shunned or avoided;
  • lower him in the estimation of right-thinking members of society generally; or,
  • disparage him in his business, trade, office or profession.

The test is easily satisfied, and it is difficult to see which of the abusive bulletin board comments, quoted above, would not be considered defamatory under the test's broad ambit.

Eady J. appears to be flying a kite for a liberal approach to be taken to words that are bashed out online with little fore-thought. It is not yet clear whether this novel approach may be applied to individuals who post user generated content (UGC) on media organisations' websites in response to news and comment pieces.

Courts may decide that verbal attacks in UGC are more decidedly made to the world at large with intent, and are a far cry from the relatively intimate banter of bulletin boards.

Media organisations, on whose websites such UGC is published, are even less likely to have a 'vulgar abuse' defence, but Eady J.'s remarks will still be of interest to them.

Nevertheless, his remarks will have to be developed further in case law before anyone could rely on them confidently in costly court battles.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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