Original URL: http://www.theregister.co.uk/2011/12/29/solicitors_in_court/

Solicitors from hell website unplugged by libel judge

Review site sued into oblivion for 'naming and shaming' briefs

By OUT-LAW.COM

Posted in Law, 29th December 2011 13:57 GMT

A website that allows users to 'name and shame' lawyers whose services they are unhappy with has been ordered to close after the High Court ruled its publisher had breached libel, data protection and harassment laws.

The High Court ruled that solicitorsfromhell.co.uk should be shut down and its publisher Rick Kordowski permanently barred from re-publishing some information contained on the site in the future. Kordowski was also banned from transferring control of the personal data contained about solicitors named on the site from himself to others.

The Law Society, representing all firms and solicitors in England and Wales, led the calls for the injunctions against Kordowski. It successfully claimed the comments on Kordowski's website contained "malicious and defamatory allegations about solicitors" and that personal data contained on the site had been processed unlawfully. It also successfully argued that Kordowski had caused harassment to the lawyers because the postings had caused them distress and alarm.

Mr Justice Tugendhat said that Kordowski was a "public nuisance" who was "in effect a vexatious litigant who is a defendant". The judge rejected his claims that solicitorsfromhell.co.uk provided a "public service". Kordowski had said the 'blacklist' of firms and solicitors contained on the site helped people choose legal services and encouraged members of the public to "expose wrongdoing" in the legal profession.

The judge rejected Kordowski's claims that the comments contained on the site were protected by a general right to freedom of expression. Kordowski had failed to claim "any defence known to the law of libel" in order to justify the comments about lawyers and firms on his website, he said "He has not pleaded truth or honest opinion, and although he mentions [the right to freedom of expression] and public service, he has not formulated any defence of qualified privilege on a basis recognised by the law," the judge said.

The judge ruled that Kordowski be banned from further libelling law firm Hine Solicitors and individual lawyer Kevin McGrath. Kordowski was also banned from further personal data processing and harassment in relation to Hine's lawyers or McGrath. Mr Justice Tugendhat applied the data processing and harassment ban to all solicitors named or at risk of being named on solicitorsfromhell.co.uk, permanently preventing Kordowski from unlawful personal data processing or harassing activity against those individuals in the future. The judge said that it was "beneficial" to extend the ban to cover those individuals and said it was in the public interest to do so.

"Freedom of expression can only advance the objective of truth if the participants in a debate aim at truth," Mr Justice Tugendhat said in his ruling.

"If a free market is to work, consumers must assume that suppliers are offering their goods or services in good faith, and not deliberately misleading the public. Participation in a market involves responsibilities. In the same way the right to freedom of expression ... is subject to ... responsibilities. Deliberately to introduce falsehoods into public debate is like contaminating food in the shops. And where the internet is concerned, the motive is often the same: extortion or revenge," the judge said.

"Discouraging people in need of legal advice from instructing good lawyers is as much against the public interest as encouraging them to instruct bad lawyers. At worst it may lead to miscarriages of justice ... At the least it will lead to restrictions on the consumers' freedom of choice, and to distortion of the free market in legal services," he said.

The judge added:

If restrictions are to be enforced on behalf of the public, Parliament normally does this by legislation which makes the conduct in question a criminal offence. The Data Protection Act (DPA) goes some way towards this. It can protect from unfair discrimination those suppliers who trade as individuals, as solicitors happen to do, as well as employees or prospective employees. And it does create criminal offences and a mechanism for enforcement by the Information Commissioner. Where the DPA does not apply, the suppliers who have large resources may invoke the common law to protect themselves. But there is a need for someone to protect the public. The procedural remedy of representative proceedings, coupled with an injunction, may be the best that the law can offer at present to protect the public from the unjustifiable dissemination of false information about the suppliers of goods and services. It is also the means by which the court may protect its limited resources in time and judiciary from having to deal with large numbers of claims by different claimants against the same individual on the same or similar facts.

Mr Justice Tugendhat said that because solicitorsfromhell.co.uk had contained false statements about lawyers Kordowski, as the data controller, had breached basic principles of UK data protection laws that require personal data to be accurately stored and processed fairly and lawfully.

Because Kordowski had not processed lawyers' personal data in accordance with their rights – another principle of UK data protection laws – the judge ordered Kordowski to "block, erase and destroy the data which is the subject of this action".

Under the DPA "if a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data".

'No fee, no delete' gambit didn't work

The Law Society had written to Kordowski asking him to delete the personal data of lawyers mentioned on the site but Kordowski said he would only delete the information if he received a fee to do so. When Kordowski indicated his intention to transfer ownership of the data contained on the site to foreign owners the Law Society obtained an injunction temporarily banning the transfer. The Law Society claimed that transferring ownership of lawyers' personal data contained on the site would amount to unlawful data processing and harassment.

Under the DPA individuals have a right, under certain conditions, to require organisations that store their personal data to "cease, or not to begin" processing of that information if it "is causing or is likely to cause substantial damage or substantial distress to him or to another, and that damage or distress is or would be unwarranted".

Mr Justice Tugendhat ruled that the requests made in its letter to Kordowski were justified because Kordowski had not processed personal data of lawyers listed on the site fairly and lawfully. The judge therefore ordered Kordowski to stop processing that personal data. He also extended the temporary ban on Kordowski transferring ownership of the data to permanent. Under the DPA "If a court is satisfied, on the application of any person who has given a notice [that they want damaging and distressing personal data processing to stop] which appears to the court to be justified (or to be justified to any extent), that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit".

The Law Society had argued that solicitorsfromhell.co.uk contained "malicious and defamatory allegations about solicitors" which "causes serious damage to the reputations of the solicitors, firms and others who are listed on it, causing them financial loss, embarrassment, anxiety and distress". It said Kordowski was "harassing those listed" on the site and doing the public a "disservice" by "encouraging them to use inaccurate information to choose a solicitor".

Under the Protection from Harassment Act a person is generally deemed to have committed an offence if, on more than one occasion, they "pursue a course of conduct which amounts to harassment of another, and which he knows or ought to know amounts to harassment" of someone else.. Under the provisions of the Act a person is deemed to "ought to know" that their conduct "amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment".

Those who are in breach of the Act can be jailed or fined. The High Court can issue an injunction "for the purpose of restraining [an individual] from pursuing any conduct which amounts to harassment" and if the person who requested the injunction believes that the individual "has done anything which he is prohibited from doing by the injunction", they can "apply for the issue of a warrant for the[ir] arrest".

Mr Justice Tugendhat ruled that because solicitorsfromhell.co.uk was a "prominent website" and contained "ongoing" publication of the comments made about solicitors that it would be "reasonable to infer in every case that those [lawyers] posted [about] would suffer such distress and alarm on at least two occasions". The judge has prohibited Kordowski from harassing the lawyers listed or at risk of being listed on solicitorsfromhell.co.uk in the future.

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