At first glance at the parties, one could be forgiven for expecting a bust up between Stephen King and JRR Tolkien – perhaps a ruling on the merits of horror fiction versus the fantasy genre….
In fact, the case concerns Christopher Carrie and a blog site he set up in February 2007. Mr Carrie had previously self-published a book in which he alleges (although it is not relevant to this claim) that he suffered abuse at the hands of a now-deceased member of the Tolkien family whilst he was a child. The case before Mr Justice Eady, although unusual on its facts, involved the thorny issue of an internet ‘blog’ libel and his Judgment is another useful guide to what a claimant must demonstrate to be able to get his/her claim off the ground.
On the 24 February 2007 at 11.22am – the time is very important – a posting on Carrie’s blog, purportedly by Royd Tolkien (the Defendant), alleged that Carrie had a criminal record which prevented him from working with children, was a fraudster who had tried to extract money from the Catholic Church, the Tolkien family and other celebrities and was well known to the police. These are clearly seriously defamatory allegations. At 3.41pm on the same day Carrie posted a response to the post, stating that Tolkien had gone too far and that he would be ‘hearing from the authorities’.
A claim against Tolkien for libel duly followed and was met with an application by the Defendant for Summary Judgment and/or for the Court to Strike Out the claim. The grounds for the application were that Carrie had in fact consented to the publication of the words complained of for the period from 3.41pm on the 24 February 2007. It was at this time that Carrie accessed the site and could have removed the material himself. Furthermore the application argued that although the material was posted shortly before mid-day, having failed to remove the material at 3.41 the Claimant was unable to establish that "a real and substantial tort" had been committed in those few hours. If the Court agreed that Carrie had given his consent, Tolkien argued that there was no realistic prospect of the claim succeeding before a Jury.
It is a well established defence to an action for libel or slander for the defendant to plead and prove that the claimant has authorised or assented to the publication of the words complained of. In this case, Carrie’s explanation for allowing the alleged defamatory posting to remain on the blog was that it put the words in context. Mr Justice Eady dismissed this, stating it did not detract from the validity of the defence and that ‘[t]he fact remains that [Carrie] could have removed it at any time over the last 22 months. These circumstances must surely be unique.’
Mr Justice Eady was also critical of Carrie’s response to the defence of consent: ‘[Carrie] relies upon the fact that he reported the posting to the local police… [T]hat may be so, but it does not meet the defence: Nothing in the reply can serve to undermine the basic fact that [Carrie] has acquiesced in the continuing publications since the original date of publication.’
Turning to the period spanning the time of the posting (11.22am) to the time Carrie discovered it (3.41pm), the court confirmed that it was necessary to establish the extent of any publication relied upon – there is no presumption that placing material on the internet leads automatically to a substantial publication. In this instance, Carrie had failed to produce any evidence of visitor traffic to the blog during the period in question or any other evidence of substantial publication and Mr Justice Eady was prepared to classify the claim as an abuse of process – the proceedings were not serving the legitimate purpose of protecting the Claimant’s reputation.
Carrie appeared in person at the hearing and does not appear to have instructed solicitors to assist with bringing his claim. No doubt any libel lawyer worth his salt would have advised Carrie to remove the offending post immediately before considering whether to make a claim. As Mr Justice Eady stated ‘[Carrie]’s conduct is hardly compatible with the suggestion in his pleading that he has suffered "substantial upset and distress"’.
The Claimant’s tactics in this case may not bear too much scrutiny, but the Judgment serves as a lesson that a Claimant in an internet libel claim is likely to face difficulties should he or she not have taken practical steps to remove the material if able to do so.
If you require advice on any of the issues raised in this article please contact Steeles Law’s Head of Litigation Dominic Crossley on dcrossley@steeleslaw.co.uk or 0207 421 1720.