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A man who was criticised in the comments section of his own blog cannot sue for defamation because he did not delete the comment when he discovered it, the High Court has said. The Court said that the man consented to the comment's publication.

Christopher Carrie is the author of a self-published book in which he claims to have been sexually abused by the son of writer JRR Tolkien, Father John Tolkien. John Tolkien, who was a priest, died in 2003.

Carrie set up a blog on 5th February 2007 and published a post under a pseudonym on 6th February, promoting his website and his book, which could be downloaded from there for free.

The court heard that JRR Tolkien's great grandson Royd Tolkien had posted a comment on the site claiming that Carrie was a fraudster who had tried to defraud the Catholic Church and the Tolkien family and had admitted to lying about sexual abuse to extract money from the church.

Carrie denied the claims via his pseudonym on the site, and sued Tolkien, claiming that the remarks were defamatory.

Carrie did not remove the remarks, though, even though the Court heard that he had seen them four-and-a-half hours after they were posted. The remarks are still online.

Tolkien argued that this meant that Carrie consented to the publication of the comments, and the High Court agreed. Mr Justice Eady granted summary judgment in favour of Tolkien.

"No explanation was offered for [Carrie] having taken no steps to delete it until his witness statement of 18 November 2008 was served," said the ruling. "The explanation given, however, of putting the words 'in context' does not in any way detract from the validity of a defence of authorisation or acquiescence. The fact remains that he could have removed it at any time over the last 22 months."

"[Carrie's] conduct is hardly compatible with the suggestion in his pleading that he has suffered 'substantial upset and distress' or with the assertion that he has 'concerns about the welfare and safety of [his] family'," said the judgment.

"[Carrie] has responded to some extent to the pleading of the defence of consent, but not to any substantive effect. For example, he relies upon the fact that he reported the posting to the local police on or about 25 February 2007. That may be so, but it does not meet the defence. Nothing in the reply can serve to undermine the basic fact that he has acquiesced in the continuing publications since the original date of publication," said Mr Justice Eady.

The Court ruled that a jury was likely to conclude that Carrie consented to the publication of the remarks after 3.41pm on the day of publication, when he responded to them on the site.

That still left a potential defamation case to answer in relation to the four-and-a-half hours during which the remarks were live on the site before it became clear that Carrie was aware of them.

The law of defamation protects people against harm to their reputation. An article must be read for it to harm someone's reputation, and Mr Justice Eady said that it is not sufficient simply to assert that an article's appearance online means that it has been read.

"There is no presumption in law to the effect that placing material on the Internet leads automatically to a substantial publication," he said. "There must be some evidence on which an inference can be drawn in relation to that very short period of time."

The judge referred to the 2006 case of businessman Mohammed Hussein Al Amoudi, who sued a terrorism expert over claims, published online, that Al Amoudi had links to the financing the activities of terrorist Osama Bin Laden.

The judge in that case said that Al Amoudi would have to prove that the material was accessed and downloaded in the UK in order to proceed with his case.

Mr Justice Eady came to the same conclusion. "It will not suffice merely to plead that the posting has been accessed 'by a large but unquantifiable number of readers'. There must be some solid basis for the inference. That form of pleading is no more than bare assertion," he said.

See: The ruling

Copyright © 2008, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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