Budu v The British Broadcasting Corporation

The Claimant, Mr. Samuel Budu, sues the BBC for libel in respect of three articles contained on the web in the BBC’s archive, and a Google entry or “snippet” i.e. part of what appears on a Google page, when a particular search term is entered. He was not named in the first article, but is named in the second and third articles.

The BBC needs no introduction. It has now issued an application, with a number of inter-related strands, to strike the action out pursuant to CPR 3.4(2), and/or for summary judgment pursuant to CPR 24.2. The strands which are also free-standing applications in their own right, include an attack on the pleaded meanings, on the case on publication, on the case on identification or reference, and on the claim for damages. It is said, when all the relevant matters are looked at together, this action is as an abuse of the process and should be struck out.

The three articles were originally published on the Cambridgeshire section of the BBC website nearly 6 years ago: on 23^rd June 2004, 24^th June 2004 and 2nd July 2004. I shall refer to these in date order as the first article, the second article and the third article. The articles were based on three reports broadcast on the BBC Look East programme on the same dates. The reports and articles concerned (broadly) the decision of Cambridgeshire Constabulary to withdraw a job offer previously made to the Claimant in the light of subsequent discoveries as to the legality of his immigration status. The articles were archived on the BBC website shortly after publication, and since then, have only been available (or published) to those who conducted an archive search of some description.

The Claimant issued his Claim Form on 14 May 2009, nearly five years after the articles were first published. It is said he has done so because he is concerned that prospective employers who conduct an internet search using his name will read the Google snippet, and will also obtain access to the three articles which defame him. The claim in respect of the articles, is confined to their publication on the BBC’s website post May 2008, that is one year prior to the issue of proceedings, presumably because the limitation period for libel actions is one year.

The proceedings were served on the BBC in July 2009. Shortly after proceedings were served, on 30 July 2009 the BBC attached what are known as Loutchansky notices to the articles (see Loutchansky v Times Newspapers [2001] EWCA Civ 1805). Anyone reading the articles after then, will therefore have read the content of those notices as well.

The BBC’s application notice was issued in November 2009. No defence has yet been served.

It is central to the BBC’s attack on the meanings attributed by the Claimant to the first article (and indeed to the BBC’s other applications) that because of the way the articles were archived and were accessible if the first article was accessed and read at all, in reality it will only have been read and understood to refer to the Claimant, by those who had already read the second and/or the third article; and that the case to the contrary is fanciful and has no realistic prospect of success. It is said this has a significant “diluting” effect on the meaning the words are capable of bearing.

I will refer at the outset to some of the evidence I was referred to by the parties and which it is necessary to have in mind when considering the BBC’s various applications.

The BBC’s system of archiving pages, from its BBC News website is explained in a witness statement dated 4 February 2010 by Nicola Cain, a barrister employed by the BBC. The news content of the website is replaced and updated on a daily basis. It remains accessible via links on the front page for a short period only after it is replaced. After that, the articles are only accessible by conducting a search. The BBC does not selectively archive material from its website; all news stories are automatically archived in that way. In the absence of a specific reason to do so (for example so as to comply with a court order) the BBC does not edit archived content, nor does it attempt to amend, update or otherwise review archived articles. The scale of the material involved would make it impractical to do so.

In this case, the links to the articles are likely to have been removed from the Cambridgeshire section of the website a matter of weeks after the original publication dates in 2004. Thereafter, the articles will only have been accessible by a search.

In those circumstances, it follows that the ambit of this action concerns the publication by that means (i.e. retrieval by search) of archived news articles four years and more after their original publication; and, in addition, the publication of a Google snippet created when a search is done.

Google Inc is an internationally known US corporation which, like the BBC needs no introduction. The following is common ground, and no doubt a matter of common experience. A search term entered into its search engine will produce a series of ranked hyperlinks, each giving access to a different webpage. The hyperlinks are sometimes preceded by words or information (or “snippets”) taken from the particular webpage to which the hyperlink gives access. The search result and the snippet produced may differ according to the search term used.

It is also common ground that there is no human intervention in any part of the process, which is performed automatically by web-crawling robots: see Metropolitan International Schools Ltd v Designtechnica Corporation & Ors [2009] EWHC 1765 (QB) to which I was referred by the parties. A search engine is not a human. It is simply a computer programme that matches the word given to pages on the web. The process by which this occurs was described by Eady J, in Metropolitan at paragraphs 9 to 14:

“The role of search engines

9.

Because it is so central to the issues now before the court, it is necessary for me to summarise the evidence explaining how search engines work. This again derives primarily from Mr. Jaron Lewis, although it is a subject also covered in expert evidence introduced by the Claimant from Dr David Sharp.

10.

The Internet comprises web pages containing information and each page has a unique address (the “URL”). The page will appear when the URL is typed into an Internet browser. Each website address ends with a “top level domain”, which is a series of letters often denoting the country in which the website is registered. Thus, many websites which are accessed in the United Kingdom will end with the “.uk” domain. Google operates search engines for all the major “country code top level domains”(“ccTLDs”). The principal reason why this is done is to enable Google searches to provide appropriate results for local users. It was explained, by way of example, that a search on the word “bank” would yield different results on www.google.co.uk from those appearing on www.google.ca (where primarily Canadian banks would appear).

11.

It would be impossible for Google to search every page available on the web in real time and then deliver a result in a time frame acceptable to users. What happens is that Google compiles an index of pages from the web and it is this index which is examined during the search process. Although it is well known, it is necessary to emphasise that the index is compiled and updated purely automatically (i.e. with no human input). The process is generally referred to as “crawling” or the “web crawl”.

12.

When a search is carried out, it will yield a list of pages which are determined (automatically) as being relevant to the query. The technology ranks the pages in order of “perceived” relevance – again without human intervention. The search results that are displayed in response to any given query must depend on the successful delivery of crawling, indexing and ranking. Content on the Internet is constantly being crawled and re-crawled and the index updated.

13.

Obviously Google has no control over the search terms entered by users of the search engine or of the material which is placed on the web by its users.

14.

The complaint in these proceedings against the First Defendant relates to information appearing on one of its web bulletin boards posted by third parties. Needless to say, the Second and Third Defendants have no control over the First Defendant or over what appears on its bulletin boards.”

The evidence establishes that the first article is not directly retrievable by a search using the Claimant’s name. This is not surprising because as I have said, the Claimant is not named in the first article. Thus, those who search the archive using the Claimant’s name would only obtain access to the first article via the second and third article.

Ms Cain conducted a search exercise via Google using the search terms ‘Sam Budu’, ‘Samuel Budu’ and “Sam Budu” (though she used Google, similar results were obtained whichever search engine was used, although other search engines, such as Yahoo, tended to produce fewer relevant results). When those terms are entered, the displayed list of search results provides hyperlinks to the second and third articles, with the second article ranked immediately above the third. There is no however no link displayed to the first article.

Such a link appears only if either the second or third articles are accessed, that is, opened up. Clicking on the link to the second article opens up a webpage containing both the second article and, at its right-hand side, under the heading “SEE ALSO” a link to the first article. Clicking on the link to the third article, opens a webpage containing the third article, and a similar column containing a link to the second and first articles. Thus it is, clear that the first article will only be read by those who have already accessed, and therefore opened up the webpage displaying the second and/or third article.

At this point I should set out the articles complained of together with the meanings which are attributed to them by the Claimant (all of which are said to be those which are natural and ordinary). All the articles are relied on in full. The Claimant relies on precisely the same meaning for both the second and third articles, and for the Google snippet. This latter meaning is what has been called by the parties the “security risk” meaning.

The first article says this:

“Illegal immigrant offered top job

A police force criticised in the Bichard Inquiry for failing to properly vet the Soham murderer offered an illegal immigrant a top management job.

The man was later turned down for the post as head of diversity for Cambridge Police when the truth was uncovered during vetting.

The force confirmed a verbal offer was made, but withdrawn after detailed and thorough vetting and security checks.

The Home Office told the BBC the man’s case was being actively investigated.

The news comes just a day after the force was heavily criticised for failing to vet Ian Huntley, the killer of the Soham schoolgirls, and is working to rebuild its stained reputation after the fall-out from the Bichard inquiry.

Verbal Offer

The job applicant already held a senior management post elsewhere when he applied for the £42,000 a year post at the force’s headquarters.

In a statement on Wednesday, Cambridgeshire Police said: “Following a selection process, a verbal offer of appointment was made, but the offer was withdrawn after we completed detailed and thorough vetting and security checks.

“We’re currently progressing the appointment of an alternative candidate. “

Employment lawyer Tim Tyndall said he was surprised the man chanced his luck on applying.

“This individual clearly is a very confident person to have applied for the job without the requisite immigration status and without a work permit

“I suspect there aren’t many people watching who would be brave enough to do that.

“He’s clearly quite wise as to the way these things are looked at, and he may have thought he could get away with it in this situation.”

The applicant, believed to be from Africa, may now face deportation or removal from the UK.”

On the Claimant’s currently pleaded case, it is said the first article read on its own meant the Claimant:

These meanings are pitched at the level of “guilt” (or Chase level one meanings: see Chase v News Group Newspapers [2002] EWCA Civ 1772).

However, a few days before this hearing, the Claimant’s advisers put forward a proposed amendment to the Particulars of Claim (in a new paragraph 5A) relying on an additional set of meanings for the first article when read in the context of the second and/or third article. These new meanings are put in the past tense, and pitched, broadly, as “reasonable grounds to suspect guilt” (or Chase level 2) meanings, though there are some other distinctions as well. It is said the first article, when read in the context of the second and third articles meant:

The BBC does not consent to the amendment but was content for the application to proceed on the footing that it is part of the Claimant’s pleaded case.

The second article says this:

“Candidate denies illegal status

A man who was offered a top management job with Cambridgeshire Police says he has every right to apply for the post.

Ghanaian Sam Budu, Ipswich and Suffolk Council racial equality director, was later rejected as diversity manager after security vetting.

Police who have not named him, told the BBC the applicant for the £42,000 a year job was not legally in Britain.

Mr Budu, who arrived here 14 years ago, denied being in Britain illegally and said he had been treated unfairly.

Mr. Budu has worked for Ipswich and Suffolk Council for Racial Equality for eight years.

“As far as I am concerned, I am not illegally in this country,” he said.

“I got a letter from the Home Office last month telling me I do not qualify for indefinite leave to remain but discretionary leave was granted and I am appealing against that.

“I have always made the Home Office aware of my presence and of what I am doing so this has come as a surprise.”

A spokesman for the Council for Racial Equality said Mr. Budu was now seeking advice.

He said Mr. Budu was appointed after they obtained two references.

Cambridgeshire Police are now seeking an alternative candidate as head of diversity.”

The second article was illustrated by a photograph of the Claimant with the caption, “Sam Budu denies being in the UK illegally.” In addition, to the right hand side and as part of the article were the words in larger black type: “I have always made the Home Office aware of my presence and what I am doing so this has come as a surprise”.

The third Article say this:

“Support for immigration row man

The Council for Racial Equality (CRE) says it stands by one of its directors involved in an immigration row.

Ghanaian Sam Budu, Ipswich and Suffolk CRE director for eight years, was offered the job of diversity manager by Cambridgeshire Police.

The force then withdrew the offer after security vetting, saying Mr. Budu was not legally in Britain.

However, Mr. Budu says he is not in the UK illegally and will fight to clear his name.

A CRE spokesman said The Claimant was appointed after they obtained two references.

Cambridgeshire Police are now seeking an alternative candidate as head of diversity.”

The side columns to the right of both the second and third articles (which, as I have already indicated gives links to previous articles on the same topic) are complained of too. Thus, to the right of the third article are these words (those underlined are hyperlinks to the earlier articles):

“SEE ALSO”.

“Candidate denies illegal status

24 June 04| Cambridgeshire

Illegal immigrant offered the top job

23 June 04| Cambridgeshire”

The column to the right of the second article is the same, but omits the link and its associated words, to the third article.

The meaning complained of for the second and third articles (and the Google snippet, which I deal with below) is: “that the Claimant failed police security vetting as he poses such a security risk that he is not fit to be employed as a diversity manager with a police force.”

The BBC invites me to make various rulings under CPR 53 Practice Direction paragraph 4.1(1) that some of the words complained of are incapable of bearing the meanings attributed to them by the Claimant. Because of the unusual features of this case, its arguments in this respect also involve considerations of its associated case on publication, reference and republication.

As I have already indicated, these are inter-related, and are relevant to the remainder of the applications. The BBC’s contentions in summary are these.

Does the Claimant have a case with a realistic prospect of success that there exists a cohort or even one reader, who post 2008, would have read the first article on its own and understood it to refer to him? In my view, he does not. The first article is and has been archived since 2004 - a matter of weeks after it was displayed on the website. From then on (and certainly post May 2008, the period when it said any actionable publications occurred) the un-contradicted evidence is it will not have been accessible by anyone conducting a search using the Claimant’s name except via the second and/or third articles. I do not accept Mr. Monson’s argument that there is a realistic possibility that a reader might read the first article on its own by clicking on the link to the second and/or third articles so as to open them up, and then (without reading them) go straight to the first article.

It is also important to bear in mind that the Claimant’s case on there being any publication at all, rests on the premise that potential employers would, or might do a search, using the Claimant’s name, to find out more about him. Assuming the Claimant is right that there might be someone who conducts such a search, I do not consider it arguable – especially given the link between all three articles as to topic and time – that anyone interested enough to read the second article for example, would not also read the first and the third (or indeed that any reader who happens across the first article, and understands it to refer to him will not also then read the second and/or the third). As Mr. Caldecott submits it stretches credulity to suppose that this notional reader, who has only obtained access to the articles at all, because he is interested enough to do a search using the Claimant’s name, would read say, the second and not the third articles (by analogy, the beginning of the story, but not the middle or the end); let alone, as Mr. Monson suggested was possible, the first article, without reading either the second or the third. There is in my view, no rational basis (in the real world) for contending to the contrary.

Does the Claimant then have any realistically arguable case that there is any other route by which any reader would have obtained access to the first article on its own, and then understood it to refer to the Claimant? Again, in my view the answer to that question is that he does not.

In the circumstances where the Claimant has confined his case to those who read the archived articles after May 2008 the jury could not in my view properly infer that the first article, in which he is not named, was accessed and read by someone on its own (i.e. there was a potentially actionable publication) from the mere fact it was “out there” on the internet in an archive (any more than such an inference could be drawn for example, in relation to the article if it was contained in a historic paper archive). It is to be noted that there is no evidential presumption from the presence of a particular publication on the internet that publication will be substantial, even if it is not archived: see Al Amoudi v Brisard & Ors [2007] 1 WLR 113.

Moreover, the Claimant’s pleaded case on reference in relation to the first article if it were to be read on its own, does not it seems to me bear any relation to reality.

What is pleaded is this:

“These words [the first article] refer to the Claimant and a significant number of those who read the words will have identified him as their subject. If necessary, the Claimant will rely on the hyperlinks to the page of the Website containing the [second and third articles], in addition to the fact that those knowing of the Claimant’s African origins, that he held a senior management post and applied to become head of diversity for Cambridgeshire Police would identify him as the man referred to.”

In my view, the hyperlinks do not help the Claimant in this respect. It is not disputed by the BBC that those who obtained access to the second and/or third articles will have read the first, and understood it to refer to him.

But the converse (i.e. that there happens to be a reader who post 2008, while idling through the internet, just happens upon the first article archived since 2004 and then reads the second and the third) just does not arise as a realistic possibility. Even if there is or may be such a reader, the Claimant’s argument in this respect is self-defeating, since such a reader (ex hypothesi if they read the second and third articles in order to understand the first article to refer to him) will not have read the first article on its own.

Nor is it a realistic possibility in my view, that there exists a notional reader post 2008, idling as I have said through the internet, who happens across the first article, doesn’t bother to read the second and third articles via the links on to the side of the page, but nonetheless understands the words in the first article to refer to the Claimant because they make the link between the first article, and the pleaded “identifying” facts which they just happen to know.

Who are these readers? It would of course be open to the Claimant to plead that readers who he identifies by name, or even by category, read the first article in the archive post 2008, knew the pleaded facts and thereby understood the first article to refer to him. However, he has not done so; and it is no answer to such an obvious and identifiable void, as has been suggested by Mr. Monson, that the BBC has not asked for particulars of such readers. The identity of such readers, as well as the extrinsic, linking facts they are said to know are part of the Claimant’s cause of action, and they must be pleaded by him, if he wishes to rely on them: see Bruce v Odhams Press Ltd: [1936] 1 KB 697; and CPR 16.4(1)(a)); Fullam v Newcastle Chronicle [1977] 1 WLR 655 and Mosley and anor v Focus Magazin Verlag Gmbh (CA) 29 June 2001, unreported.

Instead his case rests on the inference that there will (or may be) such readers. In my view, it would be perverse of any jury to draw such an inference, which itself is based on a combination of unrealistic propositions. First, as I have said, that post 2008, someone happens across the archived first article, by accident as it were; and second, that such an accidental browser, also happens to know the pleaded “identifying” facts. In any event, it is only the last of those facts (that it was the Claimant who applied for the Cambridgeshire post) which provides any link between the first article and the Claimant at all. The mere fact that someone knew the Claimant’s ethnic origin and that he held a senior management post would not provide any arguably sufficient linkage in my view.

Moreover, it is not suggested that the Claimant is a public figure, or well-known outside his immediate circle of family and friends. Indeed there is a noticeable omission to plead that any of these facts and matters were well-known or notorious so that an inference could be drawn that at least some of those who read the first article, will have known those facts, and therefore understood the first article to refer to the Claimant.

The suggestion therefore that a jury could infer that there must be a reader or readers who happened across the first article, and happened to know it was the Claimant who applied for the Cambridgeshire post is unarguable and/or there is no realistic prospect of the Claimant succeeding in this part of his case.

Thus, in my view, the Claimant’s case on publication must be confined to those who read the second and/or third articles and then the first. If the first article is to be read through the prism of the second and/or third articles, then the essential issue between the parties on capability is whether the “composite” meaning of all three articles (as Mr. Monson describes it) is at the “reasonable grounds to suspect” level, or whether “at worst” as Mr. Caldecott suggests, read together, the articles cannot do more than suggest that there were questions over the Claimant’ immigration history and future status.

The legal principles which the court must apply when considering whether any words are capable of bearing a particular meaning are well-known. Although they have been set out in the cases so often now, that it might be thought reference to them is somewhat formulaic, I bear these principles firmly in mind. In Gillick v BBC [1996] EMLR 267, at 273 Neill LJ observed that that the principles to be applied by the court in deciding preliminary applications on meaning do not ‘admit of elaborate analysis’; and at 272-3 summarised the guidance given by Sir Thomas Bingham MR. in Skuse v Granada TV [1996] EMLR 278 on the approach to be adopted when the court is called on to determine what the words complained of actually mean.

The hypothetical reader is also taken to be representative of those who read the publication in question. See Jeynes v News Magazine Ltd [2008] EWCA Civ 130 at [14].

I must also bear in mind when considering whether the words are capable of bearing the pleaded meanings that there is a high threshold of exclusion. See what was said by Simon Brown LJ in Jameel v Wall Street Journal Europe [2004] EMLR 6 at [10] and [14]. The court must also have regard to the imprecision of language and the importance of context. As Sedley LJ said in Berezovsky v Forbes Inc [2001] EMLR 1030 at [16]

“... The real question ...is how the courts ought to go about ascertaining the range of legitimate meanings… the impression is not of what the words mean but of what a jury could sensibly think they meant. Such an exercise is an exercise in generosity, not in parsimony ….”

If the first article is read in the context of the second and third articles, it is plainly incapable of bearing the meanings currently pleaded. Indeed Mr. Monson did not seriously contend otherwise. He expressly accepted the considerable diluting effect of the second and third articles, as he put it, at least on the illegal immigrant theme in the first article (though not in relation to the following elements of the first article: (a) the allegation that the Claimant is facing “active investigation by the Home Office” and (b) the allegation that the Claimant is facing deportation or removal). Indeed it may be thought it was a realistic assessment of the position which has led to the proposed amendments to the Particulars of Claim a matter of days before this hearing.

But in my view, the “diluting effect” goes further than Mr. Monson is prepared to concede. If the articles are read together, with the first article read through the prism of the second and/or third articles, and applying the principles I have referred to above, I do not consider they are capable of bearing the “reasonable grounds to suspect” meanings proposed by way of amendment either.

The entire theme of the second article is the Claimant’s strong assertion that he had every right to apply for the job with Cambridgeshire Police, and his strenuous denials that he was in Britain illegally. Indeed in this respect, the second article is almost entirely one way in the Claimant’s favour: from the headline of his denial, to the introductory paragraph (which sets the tone of the article) featuring his assertion that he had every right to apply for the post with Cambridgeshire Police. Importantly, his assertion that he is present legally, and denial that he is present illegally, are not ‘bare’ assertions or denials: the reader is given chapter and verse on the legality of his presence as at the date of the article, and is told, in terms that he has been given discretionary leave to remain by the Home Office, and has always kept them informed of his presence and what he was doing. This is a factual assertion which is nowhere contradicted. Whilst a bare denial by the Claimant might provoke the response “well he would say that wouldn’t he” in my view, what is said here casts very considerable doubt on the suggestion in the first article that the Claimant was illegally in this country. The un-contradicted fact (as it is said to be) that the Claimant has discretionary leave to remain, is coupled with the assertion (also un-contradicted) that the Home Office has always known where the Claimant was; that he has been in this country for 14 years, and that he has worked for Ipswich and Suffolk Council CRE for 8 years. The Claimant’s denials relate both to his present and to historic position, and there is nothing in either the second or third articles to suggest the police are challenging the Claimant’s reply to the original story, or that the BBC suggest it should be treated as unreliable in any way.

If the reader has also read the third article, he or she will know that the CRE is standing by the Claimant, notwithstanding the withdrawal of the job offer by the police, and the stated reason for it. In my view, it would be wholly unreasonable for a reader to conclude the CRE were doing so despite the fact there was evidence that he was an illegal immigrant. Conversely, the CRE’s position is strongly supportive of the Claimant’s legitimate presence; and his stated reasons for repudiating the allegations made against him. The overall theme in my view is that there are reasonable indeed strong grounds to suspect that the police may have got it wrong.

In the light of the above, I do not think the notional reasonable reader could sensibly conclude there were in 2004 reasonable grounds to suspect the Claimant was an illegal immigrant merely because of the police’s stated position, when set against trenchant and detailed factual rebuttal of it by the Claimant as supported by the CRE. I consider Mr. Caldecott is right therefore when he submits that at worst, the articles when read together are capable of meaning there were in 2004 unresolved questions about the Claimant’s immigration status, which he may not have fully disclosed to the police.

So far as the proposed remaining meaning is concerned (that the Claimant is facing active investigation and possible deportation or removal from the Home Office: see paragraph 21 iv) above) this did not feature at all in the oral argument before me. As the proposed introduction to it makes clear by the use of the words “and, by reason of the matters aforesaid” it is, contingent or parasitical on the establishment of the other pleaded meanings and no complaint of it is made on its own.

I turn next to BBC’s second contention on meaning, which is that the second and third articles are incapable of bearing the “security risk” meaning.

In my view the words complained of in the second and/or third articles read in their proper context, are not capable of bearing the meaning that “[The Claimant] failed police security vetting as he poses such a security risk that he is not fit to employed as a diversity manager with a police force.” and such an interpretation of them would be wholly perverse.

It is quite clear from the articles that the suggestion is not that the Claimant is or may be a security risk at all; but that security vetting revealed issues as to his immigration status including his right to work, which is a wholly different matter.

See for example, the words in the first article: “an illegal immigrant…the truth was uncovered during vetting…” in the second paragraph; and the words “the individual is clearly very confident to have applied for the job without the requisite immigration status and without a work permit…” in the fourth paragraph from the end.

It would be absurd to restrict what may emerge from “security vetting” to security risks. But in any event, each article focuses on immigration status alone as the reason for the withdrawal of the employment offer by the police. I do not think a sensible reader could conclude that because security vetting revealed issues as to the Claimant’s immigration status, he was therefore a security risk, or that because someone had been security vetted, they were a security risk; or even that because someone was or might be an illegal immigrant they were therefore a security risk. But in any event, the point of the articles is not the “security vetting” itself, and there is no express, or even implicit suggestion that the Claimant is a security risk. In each case, the vetting is mentioned as the means by which the information as to the Claimant’s immigration status came to light, and the two points are securely tied together.

The BBC submits the conclusion that the second and third articles are incapable of bearing the pleaded “security risk” meaning, has a “knock on” effect on the issue of the BBC’s liability for the Google snippet. Mr. Caldecott submits the BBC can hardly be liable under the general principles governing liability for republication, for a “garbled” extract of the second article “mechanically” extracted by Google robots and placed on a webpage, when the extract is taken out of context, and makes an allegation which is not made in the original publication.

The Claimant puts his case on the BBC’s liability for republication in this way. It is said that as a result of the publication of the second article, “as the [BBC] knew or should have known would occur or that there was at least a significant risk would occur” a Google search using the search terms ‘Sam Budu’, ‘Samuel Budu’ and “Sam Budu” [i.e. for the last term, simply putting the words in quotation marks] produces the following words:

“BBC NEWS| England | Cambridgeshire | Candidate denies illegal status

Ghanaian Sam Budu, Ipswich and Suffolk Council racial equality director, was later rejected as diversity manager after security vetting...

-news.bbc.co.uk/1/hi/england/cambridgeshire/3837895.stm”

This is described by Mr. Monson as “a defamatory digest of the second article” for which the BBC is liable under the principles relating to republication set out in McManus v Beckham [2002] 1WLR 2982. Moreover, it is said, since it has been held that Google itself is not liable as a publisher for defamatory snippets in search results, (in Metropolitan) a fortiori the Claimant must be able to sue the BBC for the Google compilation of the second article.

The BBC describes the Google snippet as a “highly selective and distorted summary” of the second article, for which the BBC should not be held liable on ordinary principles of republication. Mr. Caldecott makes the following additional submissions. An internet search page whose sole purpose is to direct the searcher to an underlying article should for the purposes of meaning be read with that article (applying by analogy) the well known principle in Charleston v News Group Newspapers Limited [1995] 2AC 65 – and certainly if it is the law that the author of the article is potentially liable for the search result.

As a matter of reality, he suggests it is implausible that someone would do such a search, read the link and not then read the underlying second article, or indeed the third to which it provides a link, both of which it is said put a wholly different complexion on the words complained of. Thus, whether one applies the Charleston principle, or has regard to the underlying articles as context, the result is the same. Alternatively if, he suggests a searcher is sufficiently disinterested not to go to the underlying entry, he either knows its terms already or is so disinterested in the Google search entry itself so as not to be truly a publishee.

In Tarpley, Clerk v Blabey (1836) 2 Bingham New Cases 437, it was held that evidence of a letter written by a defendant was properly admitted against him at the trial of a libel action against him for the publication of it in a newspaper, even though the editor had deleted certain of the more offensive passages from the letter before publishing it. Tindal C.J. said

“If the Defendant authorised the printing of the libel in its larger and more offensive form, he gave the minor authority to print the less offensive parts of it. The case would be different if any qualifying expressions had been left out.”

In Slipper v BBC [1991] 1 Q.B. 283 C.A. the Court of Appeal upheld the refusal of the lower courts to strike out a claim that the defendant was responsible for the damage caused by the publication in various newspapers of reviews of a film it had allowed to be previewed since they seemed to contain the sting of the libel which was relied on. It is clear the court proceeded on the assumption that the plaintiff would be in a position to prove at trial that the passages from the reviews repeated the defamatory sting of the film, and that the defendant could have reasonably foreseen that they would.

In McManus the Court of Appeal moved away from the traditional formulations of natural and probable consequence and reasonable foreseeability when considering the basis for concluding a claimant could recover for the damage suffered by reason of its repetition (in that case, by independent third parties).

Waller LJ said this:

He then said this:

“34.

What the law is striving to achieve in this area is a just and reasonable result by reference to the position of a reasonable person in the position of the defendant. If a defendant is actually aware (1) that what she says or does is likely to be reported, and (2) that if she slanders someone that slander is likely to be repeated in whole or in part, there is no injustice in her being held responsible for the damage that the slander causes via that publication. I would suggest further that if a jury were to conclude that a reasonable person in the position of the defendant should have appreciated that there was a significant risk that what she said would be repeated in whole or in part in the press and that that would increase the damage caused by the slander, it is not unjust that the defendant should be liable for it. Thus I would suggest a direction along the above lines rather than by reference to 'foreseeability'.

Laws LJ said this:

“39.

It might be thought that the ascertainment of a causal relation between an act and a result is always a question of fact; and a decision on pure fact is, so to speak, always value-free. In very many ordinary cases, that will be quite right. But where the court has to decide whether D should be responsible to C for the effects of what was done or omitted by a third agency X, the court's task is not purely one of ascertaining fact, and is certainly not value-free. In every such case D's act may credibly be called a cause of the damage which flows after X has done whatever he has done. If it were otherwise, if the consequences of X's part in the story simply had no perceptible connection with D or with the consequences of what D had done, the case would admit of a very short answer indeed: D would not be liable upon any rational approach to causation and legal responsibility. The issue for the court is not, therefore, purely one of factual causation. The true nature of the exercise does not consist in an ever closer examination of the facts to find some feature which one might at first have missed. The reality is that the court has to decide whether, on the facts before it, it is just to hold D responsible for the loss in question. Perhaps I might repeat a few words from the judgment I gave in Rahman v Arearose Ltd [2001] QB 351 at 366, 367–368, [2000] 3 WLR 1184 at 1198, 1199–1200 (a personal injury case involving successive torts), with which Henry and Schiemann LJJ agreed:

'29 … The law is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible. To make that principle good, it is important that the elusive conception of causation should not be frozen into constricting rules …

'33 So in all these cases the real question is, what is the damage for which the defendant under consideration should be held responsible … Novus actus interveniens, the eggshell skull, and (in the case of multiple torts) the concept of concurrent tortfeasors are all no more and no less than tools or mechanisms which the law has developed to articulate in practice the extent of any liable defendant's responsibility for the loss and damage which the claimant has suffered.'

40.

The problem of a second cause or novus actus interveniens should have no more absolutist or metaphysical overtones for the law of defamation than it does for the law of negligence. Of course the conception of a duty of care has no analogue in defamation. But that, if anything, serves to simplify the approach to be taken in defamation cases to the task of ascertaining in any given case the extent of any liable defendant's responsibility for the loss and damage which the claimant has suffered where a potential novus actus is involved.

41.

The defamation cases have over time been girt about with unhelpful complexities. Thus (1) Ward v Weeks (1830) 7 Bing 211, 131 ER 81 gave rise to the suggestion that there was a rule of law to the effect that a defendant could in no circumstances be held responsible to the claimant for the consequences of an effective repetition of a slander perpetrated by him. I think that was plainly wrong. (2) A distinction was drawn, having no readily perceptible basis in principle, between the effects of a repeat publication in the case where a slander was actionable per se (the repeat publication might in some circumstances be relied on) and the case where it was not so actionable (the repeat publication might never be relied on): see Parkins v Scott (1862) 1 H & C 153, 158 ER 839. (3) The circumstances in which repeat publication might be relied on became ossified into categories: see Speight v Gosnay (1891) 60 LJQB 231. (4) The courts' perception of causation was not advanced by an uncomfortable oscillation between the old language of 'natural and probable cause' and the later formulation 'reasonable foreseeability': this can be seen, with great respect, as late as this court's judgment in Slipper v BBC [1991] 1 All ER 165, [1991] 1 QB 283, to which Waller LJ has referred.

42.The law needs to be simplified. The root question is whether D, who has slandered C, should justly be held responsible for damage which has been occasioned, or directly occasioned, by a further publication by X. I think it plain that there will be cases where that will be entirely just. The observation of Bingham LJ as he then was in Slipper's case [1991] 1 All ER 165 at 179, [1991] 1 QB 283 at 300 that '[d]efamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs' states an ancient and persistent truth, long ago vividly described in Virgil's account of Aeneas and Dido, Queen of Carthage (see Aeneid iv 173–188).

43.

It will not however in my judgment be enough to show that D's slander is a cause of X's further publication: for such a cause might exist although D could have no reason to know of it; and then to hold D responsible would not be just. This is why the old formula, 'natural and probable cause', is inapt even as a figurative description of the relationship that needs to be shown between D's slander and the further publication if D is to be held liable for the latter. It must rather be demonstrated that D foresaw that the further publication would probably take place, or that D (or a reasonable person in D's position) should have so foreseen and that in consequence increased damage to C would ensue.

44.

Such an approach, I hope, may go some modest distance to demythologise the law of defamation. I make it clear that I intend what I have said to be in conformity with Waller LJ's suggestion at the end of his judgment as to how a jury might be directed, though with deference to him I think that any avoidance of the term 'foreseeability' is commended by the need for clarity rather than adherence to principle, for in principle the approach he proposes, and for what it is worth my own reasoning, require that the damage in question flowing from X's act be foreseen or foreseeable by D, or the reasonable person in D's position.”

In this case, the BBC is sued for the Google snippet as a separate republication. Thus a more restrictive test for liability applies than if it were sued for the damage flowing from the repetition of the original publication (see Gatley on Libel and Slander, 11^th edition, para 6.36 and following). But for an original publisher to be liable whether for a republication (sued on as a separate cause of action) or for damage suffered by the repetition of the original publication, the secondary publication must, as a minimum, repeat the whole, or at least part of the sting of the original libel. This in my judgment accords with long-standing authority, with good sense, and what is just. Since I have taken the view that the second article is incapable of bearing the “security risk” meaning, which is the only defamatory meaning attributed to the Google snippet, it follows that the BBC cannot be liable, even arguably, for its “republication” as the Claimant contends. The Google snippet simply extracts a sentence from the second article, divorced from the context which (on the Claimant’s case) bears a meaning which in my judgment the article which it is said to republish, is not capable of bearing.

That is sufficient to dispose of the Claimant’s case on republication. Indeed Mr. Monson expressly accepted during the course of argument, that if the second and third articles do not contain the “security risk” allegation, it would follow the BBC could not be liable for the Google snippet, on ordinary principles of causation.

In Metropolitan, Eady J decided that the operator of a search engine could not be liable for the publication of a snippet which it played no part in formulating; and given it had no knowing involvement in the publication of the relevant words, it could not be characterised as a publisher at common law of the search result, but was a mere facilitator. Mr. Monson at one point also complained that to hold the BBC could not be liable for the snippet would result in a potential injustice, since a person in the position of the Claimant cannot then sue either Google or the original publisher of the underlying article for the snippet.

However, liability for publication cannot accrue by default, but can only attach on principled grounds. If the real complaint is in respect of the original article/webpage from which the snippet is, or is said to be extracted then a claimant genuinely interested in compensation or vindication can pursue a claim, including for injunctive relief, against the original publisher of that webpage.

Such a claimant might not necessarily be shut out from taking steps in respect of a snippet. As was contemplated by Eady J In Metropolitan a company such as Google might at some point become liable, if the publication of a defamatory search result (or a “signpost to a conduit” as he described it) continued after notification of the specific URL from which the words complained of originated (though not, as Eady J said, while efforts were made by the operator of the search engine to achieve a “take down”).

It should also be borne in mind in my view when considering what is said to be this potential injustice, and indeed, possibly, the issue of liability at all that this form of snippet is a robot produced piece of text, created by the search terms entered by the person doing the search, which simply points to the underlying text, accessed via the hyperlink displayed. Search engines after all are not used by accident. In the 21^st century, they are accessed and used by computer literate individuals as a method of finding and accessing underlying information: and would in my view be read – or glanced at – in that light. It might also be thought that those who use Google search engines are well aware that such a snippet is merely a fragment of a larger whole (the underlying publication); by analogy, a tiny extract torn at random from a page to which no human publisher has attached any particular significance.

One approach might be to regard the underlying article as necessary context, or actually as part of the same publication as Mr. Caldecott suggested, so that the snippet could not then be read in isolation from the underlying article to which it provides a direct link. This in itself would not necessarily be a problem free approach, however, as similar practical problems to those considered by Eady J in Metropolitan in relation to injunctive relief and continuing liability might then arise.

Be that as it may, it would not be appropriate or just in my view to make the publisher of the original webpage responsible in law for a snippet which makes a defamatory allegation (for example, because it detaches certain words from their context) not made in the original webpage itself.

The Claimant’s claim on publication is already limited to those who conducted a search using the Claimant’s name after 14 May 2008. As a result of my conclusions on meaning and republication, it is further limited to a complaint about the first article read in the context of the second and third article; and (if he wishes to amend) to defamatory meanings at a lower level than the ones he currently complains of (that is, there were questions over the Claimants’ immigration history and future status).

There is a further refinement to this however, because anyone who accessed the articles after 30 July 2009 will have read them with the following Loutchansky notices attached:

It was made clear during the hearing, that the BBC would continue to attach the notices in this form (without the last sentence) even if the litigation now came to an end.

Mr. Caldecott submits in all these circumstances that the Claimant has (at best) what he describes as a residual case only in respect of the first article; that the residual meaning of it is unarguably true on the agreed facts, and when that residual case is looked at in the light of some important additional factors, the court should conclude there is no real and substantial tort which should go forward to trial. The action should therefore be struck out as an abuse of the process.

Before I consider those submissions, it is necessary to consider some of the evidence which is (or may be) material to them.

In his witness statement made in response to the BBC’s applications the Claimant has provided a detailed account of what he says about the relevant background events. He was born in Ghana, and came to the United Kingdom in 1992. He was granted indefinite leave to remain in the UK on the 23rd June 2004 and obtained British citizenship in 2006.

The journalist concerned in the investigation which led to the articles, and their preparation, is Sally Chidzoy. She is or was the Home Affairs Correspondent for BBC East. In her witness statement dated 26 January 2010 she explains in some detail the background to the original publications in 2004. She says the background to the reports was the publication of the Bichard Inquiry (the Inquiry) Report on 22 June 2004 into child protection procedures. The Inquiry had been established following the conviction of Ian Huntley for the murders of Holly Wells and Jessica Chapman. The Inquiry’s remit was to review the child protection procedures of Humberside and Cambridgeshire Constabularies, and particular attention was focused on the effectiveness of relevant intelligence-based record keeping, vetting practices and information sharing. She says this was a matter of obvious public interest but was particularly relevant to the region covered by BBC East news desk, given Cambridgeshire Constabulary was one of the police forces whose procedures were being investigated. The Report was highly critical of Cambridgeshire Constabulary’s intelligence-based record keeping; and in particular, the vetting practices it had followed. The Report therefore received substantial coverage.

At paragraphs 10 to 27 of her witness statement she sets out what led to the broadcasts on the 23 and 24 June, and the 2^nd July. In summary, the day following the publication of the Report, an anonymous source telephoned the BBC, and spoke to a colleague in the BBC East newsroom. The source said that Cambridgeshire Constabulary had recently offered the job of Diversity Manager to an individual who was in the UK illegally.

Ms Chidzoy sets out the subsequent inquires she made and various conversations she had, including with the Cambridgeshire constabulary. She says that as a matter of course she takes notes of her journalistic inquiries, including discussion with sources, and she did so in this case, making notes of her conversations with the Home Office, Cambridgeshire Constabulary, the Commission for Racial Equality and the Claimant himself.

At paragraph 4 to 6 she says as follows:

“I would usually keep my notebooks and other materials for a period of approximately 12 months, I then normally dispose of them unless I have grounds for believing that a story is particularly contentious or if a complaint has already been received in respect of it (in which case I obviously hold on to them for longer).

In this instance, although Mr. Budu initially complained about the broadcast new reports in a letter which was sent on 3 July 2004 (and proceeded to correspond with my manager, Mr. Tim Bishop in this regard), the correspondence was short-lived, concluded in early October 2004, and nothing further came of the matter.

Against that background I was led to believe that Mr. Budu did not intend to pursue his complaint and so I disposed of the notebooks at a later date. I would emphasise that this was some time ago; I do not recall exactly when the relevant notebooks were disposed of, but it would have been a number of years ago. Had Mr. Budu pursued his complaint concerning the reports at the time of their actual publication, I obviously would not have disposed of my notebooks and materials, such as the rushes and would now be able to refer to them to verify to whom I spoke and when, and to identify precisely what I was told on each relevant occasion. I would also be able to rely on these notes to piece together the chronology and evolution of my investigation into Mr. Budu’s case with far greater precision and in greater detail than I am now able. Given that the relevant events set out in this statement occurred more than 5 years ago, my recollection has inevitably deteriorated in the intervening period.”

2004: On 3^rd July, the Claimant complained to the BBC about the Look East broadcasts. On 15 July the BBC denied that it had misrepresented the Claimant’s status. There was then further correspondence between the parties. On 23 September the BBC offered to carry a story that he had since resolved his immigration status. On 30 September the Claimant rejected the BBC’s offer on the basis that his current status was “a private matter”. He also refused to disclose to the BBC two letters from the Cambridgeshire Constabulary and the Home Office, which he said confirmed he had never been in the UK illegally. The Claimant said his intention was to take his complaint to the Press Complaints Council and to “seek final legal advice as to whether I should pursue this matter through the court.” The Claimant next contacted the BBC in 2008.

It is said by Mr. David Attfield, a solicitor employed by the BBC in his witness statement dated 17 November 2009, that in the light of the Claimant’s failure to respond further, and the subsequent expiry of the limitation period for defamation, the BBC reasonably assumed the Claimant did not intend to pursue his complaint further.

2008: On 30 January, the Claimant complained to the BBC about the website articles, and demanded they be removed. There was correspondence between the parties until 30 July. The BBC denied liability, stating the documentation disclosed by the Claimant did not alter the BBC’s view as to his immigration status when he applied for his position with the Cambridgeshire Constabulary. On 6 October, the Claimant entered into a CFA with his solicitors. On 11 December, a pre-action Protocol letter was sent by his solicitors to the BBC.

2009: On 15 January, the BBC sent its substantive response. It offered “to place a note on the relevant articles indicating that following his application [the Claimant’s] was granted indefinite leave to remain in the UK.” There was no further communication until 30 June when the Claimant’s solicitors informed the BBC that a Claim Form had been issued (but not served) on 14 May. On 27 July the BBC repeated its offer to attach notices to the articles. On 29 July the Clamant agreed in principle to legal notices being attached. On 30 July 2009, the BBC attached the Loutchansky notices to the 3 articles so that anyone who then read the articles would also read those notices. On 4 September, the Claim Form and Particulars of Claim were served.

The Claimant’s claim, included a claim for aggravated damages, relying in particular, on the problems it is said it is reasonably to be inferred the BBC’s continuing publication of the words complained of are causing him. The matter is pleaded in this way:

“The Claimant is currently unemployed. He has applied for numerous jobs and, despite having relevant qualifications and experience, has not even been called to interview, except where he has included within his application a statement to the effect that there is false material about him on the internet, in which cases he has often been called to interview. It is therefore reasonably to be inferred that the Defendant’s continuing publication of the words complained of are severely hindering the Claimant’s job prospects.”

In the light of my conclusions so far, I think Mr. Caldecott is right to describe what is left of the Claimant’s case, as a residual claim. It is confined to publication of the articles read in reverse order to those who since 14 May 2008 have conducted or may still conduct a search using the Claimant’s name. It is also confined to a defamatory meaning at its highest (of which the Claimant has not complained) that there were in 2004 unresolved questions about the Claimant’s immigration status, which, he may not have fully disclosed to the police. Such a residual claim can only be pursued by way of amendment. Anyone reading the articles from 30 July 2009 when the Loutchansky notices were attached to them will of course also be aware that as from 23 June 2004, the Claimant has had indefinite leave to remain.

There was some debate between the parties as to what the Claimant’s precise immigration status was. But the following is in my view clear from the agreed facts before the court.

At the time of his application for the Cambridgeshire post in March 2004, the Claimant had exhausted all routes of appeal against the rejection of his asylum application as of 15 July 1998. His subsequent application for indefinite leave to remain made on 30 October 2002 was rejected on 4 April 2003. This rejection was made on the basis that this procedure only “relates to persons who can demonstrate 10 years continuous lawful residence “[emphasis added] which the Claimant could not do. The Home Office similarly rejected a counter argument by the Claimant that he was lawfully in the United Kingdom. The Claimant’s application made on 14 April 2003 to remain in the United Kingdom under the discretionary Home Office policy Dp5/96 (the 7 year concession) on the basis he was responsible for a dependent child with long-term residence, remained unresolved until 14 May 2004 (that is, after his application to and job offer from, the Cambridgeshire Police had occurred). At that point, his application was also rejected, but he was granted discretionary leave to remain for 3 years on compassionate grounds in the light of the likely impact of deportation on his young daughter. He was as I have already indicated granted indefinite leave to remain on 23 June 2004.

The BBC emphasises (bearing in mind the thrust of the complaint in relation to the first article relates to the Claimant’s conduct when he applied for the job with Cambridgeshire Constabulary) that it is clear that at the time he applied for and accepted the job, he had no legal right to be in the UK. His asylum application had been and gone, his application for indefinite leave to remain had been rejected in April 2003, because the Home Office took the view that he did not qualify as though he had lived here for 10 years by then, he had not done so lawfully.

Mr. Monson submits the Claimant was lawfully resident here until his unsuccessful appeal for asylum in 2002. He was constrained to concede however, that when the Claimant applied for the Cambridgeshire post he was not lawfully resident in the United Kingdom. It is not disputed that the Claimant did not disclose his immigration history or status to the Cambridgeshire Police. This failure of disclosure was described by ACC John Feavyour of Cambridgeshire Police, in a letter of 5 August 2004 to the Claimant, as “an issue of integrity which we could not in any circumstances overcome.” Mr. Monson said the Claimant thought he was eligible for the post as advertised, and honestly believed his immigration status, including the fact that he was not a lawful resident was not relevant to it.

Be that as it may, in my view it is clear from the facts set out above, that he did not disclose to the Cambridgeshire police that there were at least question marks over his immigration status when he applied for the job with them. Thus, the court is able to conclude on the agreed facts that the residual defamatory meaning which the first article read in its context, is capable of bearing is unquestionably (or unarguably) true.

In my judgment it would also be disproportionate for the case to have to go to trial on a relatively low meaning (assuming the Claimant wished to amend to rely on it) against a background of those true facts. Even if those facts are regarded in a relatively benevolent way, there is nothing realistically left to try. In this context I should draw attention what the Claimant himself says in his witness statement about his purpose in bringing these proceedings:

“Even if employers are aware that I am not now an illegal immigrant because I present my British passport at the job interview, who would employ a person who was refused a job for security reasons in today’s security conscious environment?”

There are some curious features of the Claimant’s “evolving case” on meaning. In his complaints about the broadcast made in 2004, the focus was on his immigration status. In none of the 2004 correspondence was there even a hint that the complaint related to an allegation that he was in some way a security risk. Such a complaint did not emerge until 2008. But as I have said the “security risk” meaning is not a meaning attributable to the words complained of. The Claimant’s concern with regard to potential future harm in respect of it is therefore misplaced.

I should also consider the further matters relied on by the BBC in support of its argument that the court should now strike out the Claimant’s “residual” claim as an abuse of the process having regard the principles laid down by the Court of Appeal in Jameel (Yousef) v Dow Jones Co Inc [2005] QB 946.

Mr. Caldecott relies on a number of other factors which he invites the court to consider cumulatively (and he also relies on the favourable resolution of issue 4 as additional support for abuse argument). These include that the BBC cannot now have a fair trial of its prospective defence of Reynolds or reportage qualified privilege at common law, which if the underlying facts could be proved is clearly arguable: this delay being the direct consequence of the Claimant’s own delay and positive indications he would not bring proceedings. It is also said there is wholly insufficient evidence of any material publication since May 2008, the case on damage is speculative, and the injunction claim has no possible prospect of success.

Mr. Caldecott submits the first article undoubtedly addresses a matter of public interest. The core point is that Cambridgeshire Police offered the Claimant an important job before his alleged illegal immigrant status emerged. The headlines underline the fact of the offer. As to timing, the Bichard inquiry report enhanced the topicality of the point as Ms Chidzoy says in her witness statement. It is important to note in relation to Reynolds privilege that the Claimant was not named in the first article. The likely class of publishee would therefore be confined to those with full knowledge of the background. Central to any Reynolds privilege would be a consideration of the fairness of the reporting of the statement of Cambridgeshire Police; and what was said by the Home Office to the journalist. There is no suggestion that the Claimant’s response, given fully in the second and third articles, was distorted.

So far as the availability of qualified privilege after 2008 is concerned, Mr. Caldecott submits the adequacy and timing of security vetting especially for posts in the police, is a constant issue of public interest. From July 2009 a notice of the type approved by the Court of Appeal in Loutchansky was appended to the articles. But if the BBC is to establish Reynolds privilege the responsibility of its conduct will have to be examined (at least in part) by the its conduct in the preparation of the articles in 2004 (see Flood v Times Newspapers Ltd [2010] EMLR 8 and also for the detailed nature of the investigation that would have to be undertaken).

However, it is submitted, the Claimant’s delay in bringing the claim has seriously prejudiced its ability to do so as Ms Chidzoy’s evidence makes clear. She no longer has any of contemporary notes of her conversations with the Cambridgeshire Constabulary, the Home Office, the CRE and the Claimant, although she did have them and consulted them in 2004.

Mr. Monson submits the fact that the Claimant complained about these matters in 2004 means that relevant enquiries will have been made then, so the prejudice caused by the delay in bringing these proceedings is minimal. His challenge on qualified privilege would be as to the legal characterisation of the facts, which he would not be in a position to really dispute, and whether they could properly be said to found a case of privilege at all. In Reynolds privilege, the focus of the inquiry must be on the position now, rather than the time when the articles were first published in 2004. Insofar as there is any prejudice, it is to the Claimant because he would be unable to check the underlying notes made by the journalist to see how the story was put together.

With regard to the Loutchansky notices, Mr. Monson submits the BBC should have published one when it received a complaint from the Claimant in 2004. The fact that the Claimant did not want something published did not relieve the BBC from its obligation to update the website material. It should also have done so in 2008 when the Claimant renewed his complaint, particularly in May 2008 when he supplied letters from the Chief Constable and Des Browne MP which were relevant to the falsity of the articles. The notices were inadequate in any event. This was not a fanciful or vestigial claim.

Further, Mr. Monson submits, substantial publication could be inferred from the ‘platform’ of facts which the Claimant relies on. Although the Claimant knew of the articles in 2004, he did not realise they were still available online until 2008, when, triggered by a real concern about what prospective employers might discover about him if they “Googled” his name, he had discovered they were still accessible. As the court has held previously (for example in Flood) account should be taken of the significance of continuing publication on the web, in terms of injury to feeling and worry. The court should take account of the permanent stigma, or “tattoo” on the Claimant’s reputation, this would cause.

In my view, it is important to bear in mind when considering all of these submissions that this action concerns articles placed on an online archive, many years after they were first placed there.

For the reasons given by Mr. Caldecott, and which are referred to above, I consider is certainly arguable that the BBC has available to it a defence of Reynolds privilege; and it would in my judgment be necessary for the court to consider how well founded that defence was at least in part by reference to the facts which gave rise to the publication of the articles in 2004. It is true, so far as potential prejudice is concerned, that the BBC was challenged about these matters for the first time in 2004. But this is of little relevance in my view, when nothing then happened for a period of years. It may also be the case, as Mr. Monson suggested in argument, that many of the facts which the BBC would wish to rely on are not in dispute. It is difficult to gauge that precisely in advance of course, since no defence of qualified privilege has been pleaded.

But in my judgment the court is entitled to have regard to the practical problems facing defendants who have to face the sort of detailed inquiries into the responsibility of their conduct many years ago which such a defence entails. Given the onus is on the BBC to establish the defence, it is inevitable in my view, that it will be prejudiced, and possibly to a significant degree by the passage of many years since the original investigations; and by the loss of contemporaneous documentation, that is the journalist’s notes. Even if this action were to continue and be dealt with expeditiously, the trial of the issue of qualified privilege, might not take place until nearly 7 years had elapsed from the date when the investigations and conversations upon which the defence would be based, had taken place.

The problem posed by potential continuing liability in respect of internet news archives has been considered by the Court of Appeal in Loutchansky. Loutchansky involved two consolidated libel actions brought in respect of articles published on 8 September 1999 and 14 October 1999. The first action was issued on 6 December 1999 in respect of the original articles. The second action was issued exactly one year later, on 6 December 2000 in respect of continued online publication on the Times website since 21 February 2000, and was brought as a result of the failure to qualify the article, despite complaints from the claimant’s solicitors. The qualification was finally added on 23 December 2000 and recorded the bare fact of libel proceedings without any substantive qualification or update. The appellant newspaper appealed against the refusal of the judge to permit it to amend to enable it to advance a case that the limitation period began to run as soon as an article was posted on a website, and subsequent occasions when the article was accessed did not give rise to a separate cause of action.

The Court of Appeal rejected the newspaper’s appeal. At paragraphs 73 to 75, Lord Phillips MR. said this:

“73.

S4A of the Limitation Act 1980 provides for a year within which to commence proceedings starting from the date on which the cause of action accrues. The appellants' submissions recognise that if they are to establish that the claims in the second action were time barred they must, when applying s4A, displace the rule in the Duke of Brunswick and replace it by the American single publication rule. They must also establish that under that rule, placing a publication on their website constitutes a single publication that occurs at the time it is placed on the website regardless of the period during which it remains there. The latter is by no means clear, but it is at least arguable. In our judgment the crucial question in relation to this part of the appeal is whether the appellants have made good their assertion that the rule in the Duke of Brunswick is in conflict with Article 10 of the Human Rights Convention because it has a chilling effect upon the freedom of expression that goes beyond what is necessary and proportionate in a democratic society for the protection of the reputation of others.”

74.

We do not accept that the rule in the Duke of Brunswick imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression. We accept that the maintenance of archives, whether in hard copy or on the internet, has a social utility, but consider that the maintenance of archives is a comparatively insignificant aspect of freedom of expression. Archive material is stale news and its publication cannot rank in importance with the dissemination of contemporary material. Nor do we believe that the law of defamation need inhibit the responsible maintenance of archives. Where it is known that archive material is or may be defamatory, the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material.

75.

Turning to the appellants' wider argument, it is true that to permit an action to be based on a fresh dissemination of an article published long ago is at odds with some of the reasons for the introduction of a 12 month limitation period for defamation. But the scale of such publication and any resulting damage is likely to be modest compared with that of the original publication. In the present case, as the Judge observed, the action based on the internet publication is subsidiary to the main action.

Loutchansky on its facts (like Flood) was not a case which concerned internet publications alone; nor was it one in which the actions in respect of the internet publications were brought years after the material complained of had been archived. The balance to be struck between the respective rights of the parties in circumstances where such a delay has occurred, was however expressly considered by the EctHR in Times Newspapers Ltd v United Kingdom, [2009] E.M.L.R. 14. The EctHR concluded the finding by Court of Appeal in Loutchansky that the applicant had libelled the claimant by the continued publication on the internet of the two articles was a justified and proportionate restriction on the applicant’s right to freedom of expression, but it is important in my view to note why it came to that conclusion on the facts. The Court first said this:

“44 The applicants maintain that they are exposed to litigation, without limit in time, on account of the adoption of the internet publication rule instead of the single publication rule.”

45 The Court agrees at the outset with the applicant's submissions as to the substantial contribution made by internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free. The Court therefore considers that, while the primary function of the press in a democracy is to act as a “public watchdog”, it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported. However, the margin of appreciation afforded to states in striking the balance between the competing rights is likely to be greater where news archives of past events, rather than news reporting of current affairs, are concerned. In particular, the duty of the press to act in accordance with the principles of responsible journalism by ensuring the accuracy of historical, rather than perishable, information published is likely to be more stringent in the absence of any urgency in publishing the material.

46 The Court further observes that the introduction of limitation periods for libel actions is intended to ensure that those who are defamed move quickly to protect their reputations in order that newspapers sued for libel are able to defend claims unhindered by the passage of time and the loss of notes and fading of memories that such passage of time inevitably entails. In determining the length of any limitation period, the protection of the right to freedom of expression enjoyed by the press should be balanced against the rights of individuals to protect their reputations and, where necessary, to have access to a court in order to do so. It is, in principle, for contracting states, in the exercise of their margin of appreciation, to set a limitation period which is appropriate and to provide for any cases in which an exception to the prescribed limitation period may be permitted (see Stubbings v United Kingdom (1997) 23 E.H.R.R. 213 ECtHR at [54]–[55]).

47 On the facts of the present case, the Court considers it significant that, although libel proceedings in respect of the two articles were initiated in December 1999, the applicant did not add any qualification to the articles in its internet archive until December 2000. The Court recalls the conclusion of the Court of Appeal that the attachment of a notice to archive copies of material which it is known may be defamatory would “normally remove any sting from the material”. To the extent that the applicant maintains that such an obligation is excessive, the Court observes that the internet archive in question is managed by the applicant itself. It is also noteworthy that the Court of Appeal did not suggest that potentially defamatory articles should be removed from archives altogether. In the circumstances, the Court, like the Court of Appeal, does not consider that the requirement to publish an appropriate qualification to an article contained in an internet archive, where it has been brought to the notice of a newspaper that a libel action has been initiated in respect of that same article published in the written press, constitutes a disproportionate interference with the right to freedom of expression. The Court further notes that the brief notice which was eventually attached to the archive would appear to undermine the applicant's argument that any qualification would be difficult to formulate.

It then went on to consider what might be the position, where, as here, there is a significant lapse of time between the first publication, and the commencement of libel proceedings:

48 Having regard to this conclusion, it is not necessary for the Court to consider in detail the broader chilling effect allegedly created by the application of the internet publication rule in the present case. The Court nonetheless observes that the two libel actions brought against the applicant concerned the same two articles. The first action was brought some two to three months after the publication of the articles and well within the one-year limitation period. The second action was brought a year later, some 14 or 15 months after the initial publication of the articles. At the time the second action was filed, the legal proceedings in respect of the first action were still underway. There is no suggestion that the applicant was prejudiced in mounting its defence to the libel proceedings in respect of the internet publication due to the passage of time. In these circumstances, the problems linked to ceaseless liability for libel do not arise. The Court would, however, emphasise that while an aggrieved applicant must be afforded a real opportunity to vindicate his right to reputation, libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under art.10.

The BBC has done what it was said in Loutchansky said should be done by attaching a notice to the articles. Whether a defendant has acted responsibly and fairly as to the content or timing of such a notice, depends on the facts of each case. These notices state in terms that the as from 23 June 2004, the Claimant has been given indefinite leave to remain. Certainly therefore, readers of it would be aware of the key “updating” point (in both Loutchansky and Flood the notices simply said that the articles were subject to legal action).

I also think it would be unreasonable to suggest the BBC should have done this in 2004, or that it acted irresponsibly by not doing so until July 2009. It was not that the parties could not agree on the wording (as was the case in Flood for example, where it was said a defendant who did not do so in those circumstances took such a course, in effect, at his own peril). The BBC offered to publish an updating story in 2004. The Claimant specifically said he did not want it to do so. In 2008, when the Claimant revived his complaints, the correspondence shows the Claimant first asked for a complete deletion of the articles, and, as at May 2008 was still saying he did not want further publicity. In January 2009, the BBC repeated its offer to place a notice on the articles in its response to the Claimant’s pre-action protocol letter of the 10 December 2008 (which claimed amongst other matters that the articles suggested he had connection with criminal terrorists). The BBC’s January letter went unanswered for 6 months, even though proceedings were issued but not served. It was not until 29 July 2009, that the Claimant’s solicitors put forward their own suggested wording.

Generally, it is a disproportionate interference with a party’s article 10 rights to bring a claim for libel after a significant period of time has elapsed. In my judgment, the potential prejudice to a defendant in advancing a defence is a relevant factor to be weighed against permitting a claim in respect of archived internet material to proceed, many years after the date of the original publication. It is by protecting defendants from being vexed by such actions where appropriate, that the Court acts compatibly with the European Convention on Human Rights, and strikes a balance between the parties’ respective rights under articles 6, 8 and 10.

I have in that context considered the way the Claimant has put his case (both in the pleadings and in this application) on past and prospective damage, since certainly the court must bear in mind as the EctHR indicated in the Times case – that even where there is significant delay it may be disproportionate to shut out a claimant. I must also bear in mind that the Court has to balance two convention rights, assuming the right to reputation is one protected by article 8.

The Claimant says he has become concerned since 2008 about the damage done to his employment prospects already by the existence of the archived but nonetheless accessible material; and about the future risk posed if potential employers conduct such a search and regard him as at least a security risk (see paragraph 99 above). Hence the claim for aggravated damages and for an injunction to rid himself of “the tattoo” which he asserts will or may always attach to his name, if the action is now struck out (see the way the matter is put for example, by Tugendhat J in Flood at [233] and following).

It must follow however from my determination of issues one to four, that no claim for such damage with a realistic prospect of success can arise: and that he has not been “tattooed” in the way that he asserts.

But even taking the Claimant’s claims in this respect at face value, it is to be noted he has not identified a single acquaintance, or prospective employer who has read or raised with him any of the articles complained of. In addition, in my view, a careful examination of what the Claimant now says about these matters demonstrates the speculative nature of the case he advances.

First the pleaded case on damage is not accurate. Contrary to the impression given in the Particulars of Claim (which is that he has applied for numerous jobs and not even been called for an interview: see paragraph 92 above) it is now apparent from the Claimant’s witness statement that he obtained the very first job he applied for after the articles were published in 2004, and he kept that job until 2006. He then took a degree at the LSE. In his letter of 30 January 2008 to the BBC, the Claimant said “...since graduating in December 2006 I have not been able to secure a single job interview.” According to paragraph 71 of his witness statement however he succeeded in obtaining the first job he applied for after completion of his studies. This was at the East of England Development Agency (EEDA) where he worked from January 2007 until December 2007. He lost his position at EEDA for reasons concerned with what he describes in his witness statement as “dubious capability reasons” presumably relating to his competence. He then sued for unfair dismissal and racial discrimination and in February 2009 ultimately received a confidential settlement in respect of the latter claim. But from December 2007 until when the matter was settled there must have been at least question marks over his competence.

In the period from 2008-9, though he applied for a number of jobs which he did not get, many are very senior and in large and well established institutions, where as Mr. Caldecott points out, the competition must be great, and the calibre of applicant high. Even so, he was called for 13 interviews and there is no evidence that anyone raised the matter.

In those circumstances I do not consider it a reasonable or even an arguable inference that the Claimant was not called for interview because of the articles.

One final point I should mention is as to cost. Mr. Caldecott relies on the evidence from Mr. Attfield, as to the considerable cost of identifying who accessed the site. In his submission, the BBC would not have had to have done this in 2004 (when a proper inference of publication might have been made); in 2009 however, evidence of the vestigial nature of the publication matters very much. In addition, he draws attention to the fact that the costs involved in this claim will be significant, not least because the Claimant, as he is entitled to, has the benefit of conditional fee agreement. For example, the Claimant’s legal costs incurred in this application alone are in the region of £78,000, including uplift.

It follows from my conclusions on issues one to four that the claim must be struck out.

I am conscious that the abuse jurisdiction is exceptional. But if the Claimant were to succeed at trial in relation to a vestigial case, the cost of the exercise would in my judgment, have been out of all proportion to what had been achieved. If it were it necessary for me to do so, considering the matter “in the round” I would take the view that the BBC should not have to be put to the cost and trouble of defending these proceedings so many years after the initial publications, taking into account all the factors to which I have referred, including the potential prejudice to it in doing so; and that permitting this action to continue, on the facts of this case, would constitute a disproportionate interference with the BBC’s article 10 rights and would be an abuse of the process.