In Christopher Carrie v Royd Tolkien [2009] EWHC 29 (QB), the Claimant argued that libellous comments about him posted on his blog remain actionable, even after he had the opportunity to take them down but decided not to so that he could put them “in context”. The court held that the claim was an abuse of process.

BACKGROUND

Mr Carrie ran a blog for the promotion of a book in which he made allegations of abuse by a member of the Defendant’s family. Unfavourable postings appeared alleging, inter alia, that Mr Carrie was a fraudster. Mr Carrie posted a response but allowed the original posting to remain, ostensibly to put it “in context” and to allow anyone who read it to see how that posting came about and what he had to say about it. The Defendant applied for summary judgment on the basis that Mr Carrie’s failure to remove the original posting amounted to consent and what was left of the claim should be struck out as there was no realistic prospect of establishing a real and substantial tort.

DECISION

Granting summary judgment, Eady J. held that putting the words “in context” did not detract from the defence of authorisation or acquiescence. Mr Carrie could have removed it at any time and this was hardly compatible with his suggestion that he had suffered “substantial upset and distress”. As to the brief period before Mr Carrie discovered the posting, it was held that it was insufficient to plead that the posting had been accessed “by a large and unquantifiable number of readers”. There was no presumption that placing material on the internet led automatically to substantial publication. It was necessary to establish any publication relied upon. The claim was classified as an abuse of process, in accordance with the doctrine in Jameel v Dow Jones [2005] QB 946, because of the minimal level of publication.

COMMENT

It is clear that the courts are getting fed up with this type of action. Even if Mr Carrie had not acquiesced in the continued publication of the comments, without evidence of publication based on records of visitors to his website, his claim could not succeed. Notwithstanding the rarity of findings of abuse of process, it is perhaps fair to say that the judge would have considered that the claim fell within the Jameel doctrine regardless.