Original URL: http://www.theregister.co.uk/2008/07/29/advfn_libel_eady_mosley/

Mosley orgy judge blocks web forum libel writ onslaught

No damages for 'mere vulgar abuse'

By Christopher Williams

Posted in Law, 29th July 2008 12:02 GMT

The High Court judge who prompted sharp intakes of breath from newspaper editors when he awarded Max Mosley damages last week has now drawn sighs of relief from website owners, by blocking a web forum libel case that could have suffocated the flame wars that often rouse debate.

While the privacy-infringing report of Mosley's orgy cost The News of the World £60,000 and yesterday provoked further libel litigation, Nigel Smith, an unemployed shareholder activist, was told on Friday he is barred from pursuing tens of thousands of pounds from his online critics for "mere vulgar abuse". In his judgment, current top libel beak Mr Justice Eady acknowledged that forum users don't necessarily believe what they write, let alone think about it.

The court imposed a civil restraint order on Smith that bars him from suing posters at ADVFN, a leading investment forum. He had issued 37 sets of libel proceedings against individual users and ADVFN itself.

On Monday, Smith vowed to appeal against the order, claiming the court did not have the right to impose the order and that his human rights were violated by Mr Justice Eady. "He's made me a second class citizen," Smith told The Register, "It's one rule for the rich - Mosley - and one rule for the poor - me."

The case stems from Smith's involvement in a campaign to recover shareholders' investments from the alleged Langbar pump-and-dump fraud that rocked the Alternative Investment Market in 2005. Langbar's activities are currently being investigated by the Serious Fraud Office (more info on the company's website here).

A firestorm was sparked on ADVFN in April last year when Smith, under the username "Anomalous", labelled fellow Langbar thread poster "Wiganer" a "fraudster". Smith alleged that Wiganer was falsely claiming Langbar compensation. Other members leapt to Wiganer's defence and slammed Smith for getting his facts wrong, branding him a "bully", "vindictive", "completely mad" and a "hypocrite".

Believing the statements against him were defamatory and actionable, Smith obtained a court order known as a Norwich Pharmacal that required ADVFN to disclose the IP addresses of the posters. News of the legal offensive spread on the ADVFN boards at the end of April 2007, attracting further criticism.

Commenting on the situation, ADVFN member Russell Watkins critcised Smith. Along with other who weighed into the debate, his name was added to Smith's Pharmacal order. Fearing a cripplingly expensive legal battle, Watkins settled out of court for £5,000 plus £1,000 costs. Following Friday's judgment, he says he now regrets that decision.

Fellow defendant, Michael Tuppen, who did not settle his case and gave evidence to Justice Eady in person, had written on ADVFN: "Anomolus and people like him (Godfrey vs Demon springs to mind) eventually destroy the internet with absurd actions like this. My wipers scraped better things from my car windscreen tonight than this dickhead Anomulus."

Our original report on the Godfrey vs Demon case in 2000 is here. The landmark decision established that forum providers can be liable for defamatory statements they host.

The hearing before Justice Eady came about when Smith had issued a further 27 writs by April this year. They became subject of a High Court and then a Court of Appeal dispute over what should be disclosed. On 25 April court officials granted a stay on all pending action, citing potential abuse of process. Eady's decision confirmed the block.

The judge said insults thrown around on bulletin boards were "more akin to slander" [than libel]. The distinction is important in defamation law because to successfully sue for slander the claimant must be able to prove quantifiable monetary damage has been caused by a defamatory statement (except under specified circumstances, such as the slander suggests the claimant is unfit to do their job, or makes claims as to the sexual morality of a woman). It's the reason that you wouldn't be successfully sued for calling a politician, say, a "dodgy bastard" at the pub.

Clem Chambers, CEO of ADFVN said: "A lot of people in bulletin board land will be very happy. This is good news for all websites." He declined to discuss the specifics of the case. Smith's case against ADVFN for operating the bulletin board is on hold until he pays a £25,000 costs award, which given his unemployment, he says he is unable to comply with.

Barbs fired at Smith as a result of his first damages demands, paraphrased in the judgment, including that he was bankrupt, attempting to extort money, had no good reputation to protect, should be ashamed of himself, should grow up and had lost the plot. Noting that "many would be surprised to see any of this made the stuff of libel proceedings," Justice Eady said:

It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development. This is central to a proper consideration of all the matters now before the court.

This has been explained in the material before me and is, in any event, nowadays a matter of general knowledge. Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or "give and take".

Smith argues that the judgment ignored many more damaging allegations.

Razi Mireskandari, a specialist in media and press law at Simons Muirhead and Burton*, said the judgment showed a "slight acceptance of modern practices" [by libel courts]. Justice Eady was firm that there is no free-for-all online, however. He said: "I would not suggest for a moment that blogging cannot ever form the basis of a legitimate libel claim. I am focusing only on these particular circumstances. It does seem to me appropriate to characterise these claims as totally without merit."

Despite the defeat, Smith vowed to fight on. "I am seeking to vindicate my name. They have damaged my reputation... they have done so with malice," he said. ®

*Disclosure: Mireskandari is retained by The Register.

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