John Hemming's Web Log John's Reference Website
Saturday, December 27, 2008
  Smith v ADVFN - internet fora and Libel
The link is to Smith v ADVFN Ltd [2008] EWHC 1797 (QB) which is also discussed at Out-Law.com

This is a judgment by High Court Justice Eady (he also of the Max Moseley case). I hadn't spotted this one, but it raises an interesting point in respect of the spats and trolling that goes on in internet fora.

This case was one where a Nigel Smith issued 37 different defamation writs against a various posters on ADVFN's bulletin boards.

Those with time should read the judgment, but part of it follows:

The nature of bulletin boards

It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development. This is central to a proper consideration of all the matters now before the court.

This has been explained in the material before me and is, in any event, nowadays a matter of general knowledge. Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or "give and take".

The participants in these exchanges were mostly using pseudonyms (or "avatars"), so that their identities will often not be known to others. This is no doubt a disinhibiting factor affecting what people are prepared to say in this special environment.

When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a "thread" and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.

It is this analogy with slander which led me in my ruling of 12 May to refer to "mere vulgar abuse", which used to be discussed quite often in the heyday of slander actions. It is not so much a defence that is unique to slander as an aspect of interpreting the meaning of words. From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious. A number of examples will emerge in the course of my judgment.


The case was about whether or not certain libel actions would be held back. The judge concluded that they would. I shall try to find the rest of the cases.

My understanding of the law for unmoderated comments is that they will form something akin to slander. That makes it a lot harder to win a case based upon the initial comment. If the person who is the victim of the slander requests their removal and this is not done then they could fall within the remit of libel (probably both on the part of the owner of the board and the original person who commented).

The earlier hearing is here
 
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