The Bussey Law Firm PC & Anor v Page

This is another claim in defamation arising from internet abuse. A short trial took place before me on 3 February 2015. The second Claimant, Mr Timothy Bussey, is a lawyer practising in the state of Colorado in the United States through his law firm, which is the first Claimant and of which he is the principal. Someone posted a defamatory allegation on his Google Maps profile, alongside a number of positive reviews of his firm and the services offered, which rated them as “excellent”. The offending post was not only directly defamatory of both Claimants, but also inevitably had the effect of undermining those commendations. It was in the following terms:

The central issue on liability was whether the Claimants could prove to the required standard that Mr Page was responsible for the original posting on 27 January 2012. He admitted that the posting had been made from his Google account. He could hardly do otherwise. This fact was originally established, at no doubt considerable expense, by Mr Bussey who had instructed a firm of California lawyers to obtain a subpoena in respect of Google’s records. Mr Page’s response was to advance certain hypothetical explanations as to how an unidentified third party might have posted the allegations via his account but without his knowledge. I will briefly address those theories shortly, but I must remember that I am concerned with what is the most likely explanation on a balance of probabilities.

After the commencement of proceedings, the posting was voluntarily removed about a year later. (There has never been any suggestion that the allegations were true.) The Defendant has stated that it was taken down as soon as he knew the Claimants wanted it removed, but makes the point that it would have been removed earlier if the Claimants had contacted him as soon as they became aware of his contact details on 24 April 2012. Accordingly, he argues that “nine months’ worth of damages would have been avoidable”. Be that as it may, the fact remains that it was there to be seen by anyone seeking information on the Claimants via Google Maps for about a year.

It was made clear at the outset of the trial that no reliance was placed on publication in England and Wales, but only that in Colorado. It is recognised that a claimant seeking a remedy in this jurisdiction regarding a defamatory publication anywhere abroad must plead, and if necessary prove, that the words in question are actionable under the lex loci delicti as well as under English law: see e.g. Gatley on Libel & Slander (12^th edn) at 26.19. Mr Richmond-Coggan sought permission to remedy this omission in the course of his opening by way of a late amendment, and by relying upon the presumption that the relevant foreign law is the same as that applying in England: see e.g. University of Glasgow v The Economist (1997) EMLR 495; OPO v MLA [2014] EWCA Civ 1277, at [108]; Ames v The Spamhaus Project Ltd [2015] EWHC 127, at [109]. I naturally asked Mr Page if he wanted to have the opportunity to plead to that proposed amendment, and to seek to rebut any such presumption. He declined and expressed a preference to proceed with the trial. I then granted permission.

It was suggested in Mr Page’s recently served witness statement that a third party must have hacked into his Google account in order to post the offending review. Naturally, one asks why anyone should take that step. If the objective were merely to hide the hacker’s identity from the Claimants, there would be the simpler option of setting up an anonymous Google account. This would in itself render the would-be publisher untraceable, and especially if it were done from a public computer.

If such a hacker wished, nevertheless, to use someone else’s account, it is not easy to see why he would choose that of the Defendant. He is based in England and it would make more sense, surely, to choose someone in or near Colorado Springs, where the Claimants practise. This would present a rather more credible scenario, if the account were traced, since their clients or potential clients are more likely to be found within easy reach.

It is necessary to have in mind how challenging it would be to hack into the Defendant’s account. It is accepted that he had adopted especially sophisticated password and security arrangements. It would require great dedication and skill to circumvent them. Even if they could be overcome there is, as I have noted already, no ready explanation as to why such a hacker would need or wish to take such a difficult route.

Mr Page’s primary suggestion is rather intricate. He has put forward the idea that he must himself have been the hacker’s real target. The theory is that he or she might have been seeking retribution for some decision or action taken by Mr Page in his capacity as moderator of “sub-reddits” on the www.reddit.com website. In other words, this could provide an explanation why the third party wanted Mr Page to take the blame for the attack on the Claimants. This plan would still, of course, involve the third party successfully hacking into Mr Page’s account in the first place and then making the (very big) assumption that the target (i.e. the Claimants) would actually go to the trouble and expense of identifying Mr Page and thereafter of pursuing him in a foreign jurisdiction. When one comes to assess the competing possibilities, it is fair to say that this somewhat obscure explanation defies probability.

Shortly before trial, Mr Page put forward evidence of IP addresses from which attempts had been made to access his account (none of them, however, on 27 January 2012). This was based on information disclosed by Google pursuant to the Claimants’ subpoena. They, in response, obtained a witness statement from Mr Robert Kelso, the chief executive of an American firm of computer experts called Forensic Pursuit. This was admitted in evidence. He referred to the common practice, among experienced internet users, of resorting to proxy servers. Mr Page had mentioned an apparently successful attempt to access his account from a particular IP address. It emerged, as a result of a WHOIS search, that the proprietor of the domain within which that IP address resides is Hetzner Online AG, which offers web hosting services including anonymous proxy servers. Mr Page does not know what use of his account was made on this occasion. None of this, however, was of any great assistance in explaining how it was that his account was used on the material date.

The Claimants established that Mr Page advertised on Twitter as being willing to post “feedback” or “testimonial” (a description which corresponds to the posting complained of here) for $5 via the Fiver.com website. This would at least provide a possible motive for his targeting the Claimants, of whom he had no personal knowledge or experience. Indeed, it is difficult to know why else he would have done so. He says, however, that he was never in fact paid for any such transaction, although his Paypal records disclose substantial dollar payments between November 2011 and March 2012. He put in late supplementary evidence to show the extent of his Fiver.com activity, but after enlargement it emerged that there was an unexplained gap (an apparent deletion) covering the period between 24 January and 10 February 2012 (i.e. the period embracing the date of the relevant posting).

I have to come to a conclusion in the light of the probabilities. The likelihood is, in the absence of any convincing explanation to the contrary, that the posting from Mr Page’s account was authored or authorised by him. It is extremely improbable that anyone successfully hacked into that account on 27 January 2012 with a view to posting the words complained of. There is no evidence that anyone did so on that date and, moreover, no reason why anyone with a grudge against the Claimants should attempt to go down that route in any event. Why Mr Page should himself choose to attack the Claimants is also unclear, but the most likely explanation would appear to be a purely financial one. I do not need, however, to come to a conclusion on motive since it is not essential to the Claimants’ cause of action. All I need say is that the overwhelming probability is that he is responsible for the posting from his account on the date in question and for its remaining accessible thereafter. There is simply no other reasonable explanation.

The publication was calculated to cause serious harm to the Claimants and, in particular, to Mr Bussey’s personal reputation and to his legal practice. It is likely to have been read by a significant number of searchers and, in particular, by potential clients checking them out. It is noted that three people are supposed to have found the comment “helpful”. One cannot, however, attach too much significance to that and it is certainly possible that one person using different accounts made all three entries (as Mr Page pointed out).

It is well known that the purpose of compensatory general damages is threefold. The court must compensate (1) for hurt feelings and distress, and (2) for injury to reputation, as well as bearing in mind (3) the need to award a sum which will serve as an outward and visible sign of vindication. There is no doubt that the allegation caused Mr Bussey considerable anxiety and distress, as it reflected upon his personal integrity and his professional competence throughout the period of ready access. His evidence about the impact upon him was unchallenged. I need to take account also of the stress of having to pursue litigation both in the United States and in a foreign jurisdiction. There is also some evidence of a decline in income at the relevant time which could be, at least in part, attributable to that publication. Yet I am primarily concerned in Mr Bussey’s case with the impact upon him personally and the need for clear vindication. I would assess the damages in his case at £45,000.

In so far as the firm has sued separately in its own name, I am concerned not with hurt feelings but primarily with the need to compensate for injury to reputation and for convincing vindication. I have little doubt that the posting would have adversely impacted on the practice, including financially, and I should also take into account to some extent the “grapevine effect” of such allegations: see e.g. Cairns v Modi [2013] 1 WLR 1015, at [26]; Ley v Hamilton (1935) 153 LT 384, 386. I would assess the award, conservatively, at £25,000 for the first Claimant.

The claim for damages has been capped at £50,000 and that must therefore represent the total sum to be recovered by the Claimants.

Mr Richmond-Coggan sought punitive damages in addition and, if I were satisfied that the publication took place with a view to monetary gain, however modest, such an award (of say £25,000 in addition) would be appropriate. Mr Page had no reason to believe that the allegations were true. Nevertheless, because of the voluntary cap on the damages claimed, I need go no further. The award of compensatory damages has reached (and would otherwise have exceeded) the total of £50,000. Accordingly, I make no additional award of punitive damages.

I would grant an injunction if I thought it likely that Mr Page would republish the defamatory allegations or any similar words defamatory of the Claimants, but I do not believe in the light of the evidence he has given that he will do so.