Online insults were slander not libel Smith v ADVFN & Others [2008] All ER (D) 335

September 2008


Eady J has handed down a judgment in the case of warring bloggers although in light of the small number of members of the public exposed to the “mere vulgar abuse” to a fairly dim view of why the case was brought at all, staying proceedings. The High Court case was brought by Nigel Smith, also known by his online avatar “Anomalus”. Acting as the coordinator of an action group to recover shareholders investments from an alleged fraud, Smith had himself lambasted an individual known as “Wiganer” as a fraudster on the ADVFN Board and alleged that various others were falsely claiming compensation for the fraudulent losses. These allegations prompted comments from other shareholders and contributors to the discussion board in support of those who had been “threatened and bullied” by Smith. Smith requiring ADVFN to disclose the IP addresses of those concerned and the of the legal proceedings triggered more (allegedly) defamatory comment against Smith who – unemployed and thus unfettered by the requirement to pay court issue fees – issued 37 sets of proceedings! Of comments made on a discussion board, Eady J observed that they were (a) read by relatively few people, who share an interest in the subject matter, (b) like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) and were (c) often uninhibited, casual and ill thought-out. The Judge also noted that the participants often used pseudonyms or “avatars”, and that this was likely to be a “disinhibiting factor”. The register of these kinds of forums was characterised by witty retort and as such the Judge acknowledged that “give and take” was expected of participants. Thus the Judge considered that in the context of defamation law, postings and communications of this kind are more “akin to slanders”. The distinction between the two causes of action is important because slander is only actionable if the claimant can prove special (monetary) damage. in the context of this case, both the fact that some of the comments were mere vulgar abuse (“My wipers scraped better things from my car windscreen”, for instance) or qualified privilege (as the contributors were mainly shareholders in company in question and therefore had legitimate interest in the subject matter of the discussion board) seem to have been considered by the judge who came to the conclusion that to lift the stays would be “totally without merit”.  From a Simkins ‘Early Warning’ by Lily Riza.

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