High Court grants relief against persons unknown in online libel case

Iona Millership

Using the principles established in recent cases related to online anonymous defamation, the High Court has granted an injunction and damages of £10,000 against persons unknown responsible for anonymous defamatory material (Smith v Unknown Defendants).

The claimant writes the “Matthew Hopkins: The Witchfinder General” blog and is a former borough councillor in Welwyn Hatfield.  The three anonymous defendants to the claim were users and operators of EncyclopediaDramatica.se, a controversial satirical website using wiki software, meaning that its content can be updated by its registered users (the “Website”).  The Website takes steps to anonymise itself and its site administrators.

In May 2016, a webpage regarding the claimant on the Website was amended by the user and administrator “LikeICare” (the first defendant) and the user “KiwiDynastia” (the second defendant) to state that the claimant was a paedophile and child rapist.  The claimant complained to the administrators of the Website and was told to “F*** off” by the first defendant.  He responded by serving a section 5 notice under the Defamation Act 2013 and posting a letter of claim to the Website.

The claimant subsequently issued proceedings and made open offers to the first and third defendants that if they removed the material complained of, he would apply for a stay of the claim against them and, although the relevant defendants did not respond directly to the claimant, the material was removed and the court agreed to stay the claim against those persons.

The claimant then applied for default and summary judgment against the second defendant, whose position was different to the other two defendants as the claimant understood him to be a persistent internet troll.

Mr Justice Green allowed the applications and, in doing so:

  1. He noted that the court had the ability to provide injunctive relief against persons unknown (Bloomsbury Publishing Group plc v News Group Newspapers Limited [2003] 1 WLR 1633) but that it was necessary for the person unknown “to be capable of identification by description in such a way as to identify with sufficient certainty who are included within the order and who are not“. He noted that in the case of Brett Wilson LLP v Persons Unknown [2015] EWHC 2628 (QB) (covered on the blog here), the description of the defendant as “Persons unknown responsible for the operation and publication of the website” was sufficient for the grant of final injunctive relief, including summary judgment.
  2. He stated that the relevant procedural safeguards needed to be respected in cases against persons unknown, including ensuring that proceedings and applications had been duly served. He decided that this was unquestionable in this case since the administrators of the site had published documents received from the claimant on the Website.
  3. He considered section 12(2) of the Human Rights Act 1998 as the case involved relief which could affect the right to freedom of speech. Section 12(2) of the HRA 1998 precludes the court from granting relief if a respondent is neither present nor represented unless it is satisfied that the applicant has taken all reasonable steps to notify the respondent or that there are compelling reasons why the respondent should not be notified. In this case, Green J was satisfied that the claimant had taken all proper steps to notify the defendant and that any failure to respond on behalf of the second defendant was simply because he or she wishes to remain “hiding”.
  4. He was also satisfied that the conditions for obtaining judgment in default were met and he could see no possible basis upon which the principal allegations could be countered. In relation to serious harm, Green J stated that: “there can be no doubt that the Claimants’ reputation will have been substantially and deleteriously harmed by the publication of this material“.
  5. He awarded damages of £10,000, the maximum permitted under the summary disposal procedure set out in sections 8 and 9 of the Defamation Act 1996 and relied upon by the claimant in this application. Green J also specified that the second defendant should have liberty to apply to vary the quantification of the damages if he or she considered it to be excessive or otherwise unjustified.

Green J was also satisfied that the pleaded allegations established a case for injunctive relief and granted the claimant a prohibitory injunction restraining the second defendant from repeating the allegations or making new allegations to similar effect, and a mandatory injunction requiring the second defendant to remove any such allegations he had placed elsewhere.  Green J noted that: (a) the second defendant had deliberately declined to remove the offending material from the Website; and (b) there was reason to believe that the second defendant would persist in the offensive campaign against the claimant.

Smith v Unknown Defendants [2016] EWHC 1775 (QB)

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