Smith v Unknown Defendant, Pseudonym 'Likeicare' & Ors

The Facts

There is before the Court today an application for default and summary judgment against the Second Defendant. The Claimant is a former borough councillor in Welwyn, Hatfield. He is active as a McKenzie friend. The Defendants are, so the Claimant asserts, users and operators of the website EncyclopediaDramatica.se (ED). ED is a satirical website which uses the Wiki software. The site is, to put it mildly, controversial and it takes steps to anonymise itself. This enables the site administrators to hide the country in which the site operates from and the real IP address of the servers. Editors and staff use pseudonyms.

In his particulars of claim the Claimant states that whilst the website is satirical much of what ED publishes is accurate and this accounts for its widespread popularity. The site exposes genuine wrongdoing and other material of interest. Mr Smith, who appeared as a litigant-in-person before the Court upon this application, describes the site as “...a more vulgar online Private Eye magazine”.

For some time, the site has published articles about the Claimant calling him a “zealot” in child protection matters. The Claimant operates a blog which, from time to time, deals with child protection matters. The position of the Claimant is that the original publications about him were satirical but not objectionable.

However, between 10^th May 2016 and 12^th May 2016 users of the site known as “KiwiDynastia” and “LikeICare” (an administrator) amended various articles to state that the Claimant was a paedophile and a child rapist. The website is accessible in the United Kingdom and has been viewed here. The Claimant has set out in particulars the specimen words complained of and what he alleges is the defamatory meanings to be imputed to them. These are, upon any view, vile allegations. The version of the material which was published on the website was copied and is in evidence before the Court. In this material the Claimant is accused of being a “KNOWN CHILD MOLESTOR”. It is said that “...his salivating lust for young ass is apparent”. It is said that he loves being able to have violent sex with his mother (the actual text uses more evocative language) which she forgets 5 minutes later. The heading to the article is “Samuel Collingwood Smith is a paedophile and child rapist”. The material has graphic mock-ups of the Claimant engaging in sexual activity. In his particulars of claim the Claimant denies the imputations which flow from these words. The Claimant denies having any criminal convictions, cautions or warnings which are remotely relevant to the words used.

The Claimant discovered these articles on 13^th May 2016 and he, as he puts it, complained politely. The normal way to effect a complaint on a Wiki is to write on the talk pages of officials. The Claimant posted his complaint to several of the highest of the officials on the site, known as Bureaucrats. He received a prompt reply from an administrator “LikeICare” delivered on his own talk page which stated: “Fuck off LOL”. Another administrator “DarkLordTR” amplified stating that if the Claimant continued his course of action he would be banned and they would see to it that their article came higher up in the Google page rankings.

The Claimant responded by the service of a notice pursuant to section 5 of the Defamation Act 2013 and also a letter before claim which he posted, once again, to the talk pages of the Bureaucrats and to his own talk page. He received a response again delivered by the administrator “LikeICare”. The response was in the following terms:

“**** Official response from myself, and on behalf of KiwiDynastia and entirely of ED staff **** LOL Don’t care faggot, go for it”.

Subsequently, the Claimant was unable to respond to the site which displayed what the Claimant describes as “...a montage of revolting, gory and sexual images” which is, he understands, the response communicated to banned persons.

Subsequently, the Claimant made an open offer to the first and third Defendants that if they removed the offending matters complained of and prevented their reinstatement then he would apply to the Court for a stay of the claim against those Defendants. Whilst the Defendants did not, at least expressly, agree to this course of action they did, nonetheless, remove the offending material. In these circumstances, the Claimant has considered that the appropriate course of action is for the claim against the first and third Defendants to be stayed, as it were awaiting development. This is a course of action that I agreed to and an order has been made to reflect that position. The Claimant has explained in evidence that the offensive parts of the article were removed and were replaced with various statements which the Claimant describes as still inaccurate and childish but, on balance, unlikely to do much harm.

Evidence has been placed before the Court as to the true identity of the Defendants. Information has, apparently, been given to the Claimant by third parties which has enabled him to identify the individuals concerned. He explains that he has addresses and mobile (cell phone) telephone numbers.

The position with regard to the second Defendant, described as the EncyclopediaDramatica user KiwiDynastia is different. Apparently, “Dynastia” is the name used by an anonymous internet troll who uses variations on that name in several websites. Evidence was placed before the Court as to the activities of this internet troll. However, at least at the present moment, the precise identity of the second Defendant is unknown.

The availability of relief against unknown persons

The ability of the Court to provide protective injunctive relief against persons unknown has been acknowledged for a considerable period of time: see for example Bloomsbury Publishing Group Plc v News Group Newspapers Limited [2003] 1 WLR 1633. It is necessary, however, for the person unknown to be capable of identification by description in such a way as to identify with sufficient certainty those who are included within the order and those who are not. In Brett Wilson LLP v Persons Unknown, Responsible for Operation and Publication of the website www.solicitorsfromhelluk.com [2015] EWHC 2628 (QB) (“Brett Wilson”) Mr Justice Warby stated that it was sufficient to describe a defendant as “Persons Unknown Responsible for the Operation and Publication of the website [...]” (cf ibid paragraph [8]). In that case, Mr Justice Warby pointed out that the Court had jurisdiction not only to grant interim relief but to grant final injunctive relief against persons unknown, including upon a summary judgment basis pursuant to CPR 24.2 (ibid paragraph [10]). The relevant procedural safeguards must, of course, be respected and this includes ensuring that the unknown defendants have been duly served with the proceedings and with any application for interim or final relief. In the present case, there can be no possible query or doubt as to the fact that service was effected since the administrators of the site not only responded to the pre-action documents but also published the same on the internet site itself. In my judgment, it is clear that the proceedings in the present case were duly served and brought to the attention of the relevant defendants. None of the Defendants have sought to file an acknowledgement of service or a defence by the deadline for so doing. Indeed, the Defendants have not formally responded in any way, shape or form to the threat of litigation. Their heads are well below the parapet.

The application for default summary judgment

This is the context in which the Claimant has issued the application before the Court. The application thus seeks default judgment pursuant to CPR 12.3(1) and 12.4(2) and seeks summary disposal of the case pursuant to section 8 of the Defamation Act 1996. The relief sought is in the following terms. First, a declaration of falsity pursuant to section 9 of the Defamation Act 1996. Second, an order for damages in the sum of £10,000. Third, indemnity costs. Fourth, a permanent order restraining the Defendant from repeating the allegations or publishing new allegations to similar effect. Fifth, an order requiring the Defendant to remove any such allegations placed anywhere else.

I should record that in Brett Wilson Warby J concluded that although the Court did not have power to make such an order pursuant to section 9 Defamation Act 1996 the Court did have that power pursuant to the powers of default judgment under the CPR.

In my judgment, it is both right and proper to dispose of this application in the absence of the Defendants. Where a litigant fails to appear without giving a reason, it is necessary for the Court to consider first whether the litigant had proper notice of the hearing date and the matters, including the evidence, to be considered at the hearing. If satisfied that such notice has been given, the Court must then examine the evidence as to why the litigant has not appeared to see if this provides a ground for adjourning the hearing. If there is no such ground for adjourning the hearing then the Court may continue to determine the case in accordance with the overriding objective and CPR 23.11. It is clear that a Court must exercise considerable caution before concluding that it is appropriate to proceed in the absence of a litigant: see for example Sloutsker v Romanova [2015] EWHC 545 (QB) at paragraphs [22], [23]; Brett Wilson (ibid) paragraph [14].

Moreover, when considering an application such as that which is before the Court it is necessary to have regard to section 12(2) Human Rights Act 1998 because the order that is sought involves relief which if granted could effect the exercise of the right to freedom of speech pursuant to the European Convention of Human Rights. Section 12(2) precludes a Court from granting relief if the respondent is neither present nor represented unless satisfied that the applicant has taken all reasonable steps to notify the respondent or that there are compelling reasons why the respondent should not be notified.

In the present case, it is plain that there were no good reasons for not notifying the Defendants in this case. However, I am quite satisfied that the Claimant did take all proper steps to ensure that the Defendant was notified. Indeed, I find that the Defendant has in fact been notified and that the Defendant had an adequate period of time in which to respond. It is my conclusion from the evidence placed before the Court that the failure on the part of the Defendant to respond is simply that he (or possibly she) wishes to remain anonymous and is, in effect, “hiding” (cf Brett Wilson (ibid) paragraph [16]). In the present case, I am in short satisfied that the Defendant simply wishes to refrain from engaging with the Court for reasons which are obvious.

If I were to refrain from considering whether I should grant relief I would be allowing the Court’s process and jurisdiction to be suborned by an act of mute defiance. In my view, I should proceed to address the application to avoid delay, further costs and therefore injustice.

I am satisfied that the conditions for obtaining judgment in default are met. The Claimant is entitled to such judgment as appears to the Court proper on the basis of the Claimant’s statement of case (CPR 23.11(1)). In my judgment, I am entitled to proceed on the basis of the facts and matters set out in the particulars of claim which have gone unchallenged. Further, on my review of those particulars, in the light of the documents before the Court, they are entirely fair and proper and the Claimant has accordingly met the standard of proof required. Indeed, I can see no possible basis upon which the principal allegations, namely that the statements are both false and malicious, could be countered. I therefore proceed upon the basis both that the allegations in the particulars of claim are proven before this Court. They are both unchallenged and also upon the basis of my review of the evidence, justified.

I have had regard to the implications of section 10(1) of the Defamation Act 2013 and as to the approach to that provision of Mr Justice Warby in Brett Wilson at paragraphs [20ff]. I am satisfied that in the circumstances of the present case, for reasons analogous to those given by Mr Justice Warby in Brett Wilson, I have jurisdiction.

Pursuant to section 1(1) of the Defamation Act 2013 a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the Claimant. In the case of harm to the reputation of a body that trades for profit harm is not “serious” unless it causes or is likely to cause that body serious financial loss. The Claimant in the present case is someone who claims to trade for profit. He advances his case upon the basis that the website, which is widely read and enjoyed for its satirical comment, commands respect and attention. Accordingly, the fact that manifestly untrue and malicious content is directed at the Claimant is likely to cause him serious reputational harm and also make him less likely to receive fee-paying work. That harm will be exacerbated by the fact that the Claimant’s photograph is plastered all over the website. Indeed, false photographs of the Claimant, naked, engaging in sexual activity with multiple other males simultaneously were also included. There can be no doubt but that the Claimant’s reputation will have been substantially and deleteriously harmed by the publication of this material and that this was precisely the intention.

In my view, there is sufficient for me to make an order for judgment for damages. The Claimant’s application seeks summary disposal pursuant to sections 8 and 9 of the Defamation Act 1996. Section 8 empowers a Court to grant judgment to the Claimant in a defamation case and grant “summary relief” where it appears that there is no defence to a claim which has a realistic prospect of success and no other reason why the claim should be tried. Pursuant to section 9(1)(c) damages not exceeding £10,000 may be ordered by way of summary relief. In Brett Wilson Warby J observed that this was a relatively little-used procedure not least because summary judgment pursuant to CPR 24 was available in defamation cases and the damages recoverable pursuant to section 9 remained capped at £10,000. In that case Warby J observed that the procedure could be invoked in order to bring a swift end to a matter to avoid an assessment procedure which might be disproportionately expensive. He observed that the procedure had been used in similar circumstances in other cases, for example in Robins v Kordowski [2011] EWHC 1912 (QB). In Robins, Tugendhat J held that the jurisdiction to grant summary disposal was available after a Court had entered default judgment for damages to be assessed and on a summary basis he awarded the sum of £10,000. In Brett Wilson, Warby J also considered that a summary assessment at the maximum level was appropriate. The Judge in that case did not consider it necessary to undertake precise quantification of the loss. He was satisfied with general evidence that the firm in question would suffer financial loss but as he observed “quite apart from this, the award needs to serve the purpose of vindication”.

In my judgment, given the popularity of the website and the vile and offensive publications thereon, and the need for vindication, it is appropriate to make an order in the sum of £10,000. I will, however, in order to enable the Defendant to have a chance to put his side of the case on quantum, include as part of the order a liberty on the part of the Defendant to apply to vary the quantification if he considers that it is excessive or otherwise unjustified. The Defendant will have 14 days in which to lodge an application with the High Court for variation of that part of the order. If no such application is made within 14 days, then the sum of £10,000 will remain definitive. In this way, in my judgment, the interests of the Defendant are adequately protected. Any such application must however adhere to the normal procedural rules. It cannot be anonymous. The true name and address of the Defendant must be provided.

I am also satisfied that the pleaded allegations establish a case for the grant of injunctive relief against the Defendants. The Defendant has deliberately declined to participate in any process whereby the offending material was removed from the website. There is reason to believe that the Defendant would, unless enjoined, persist in the offensive campaign against the Claimant. In coming to this conclusion I have regard, as I have already observed, to section 12 of the Human Rights Act. The injunctions are prohibitory and mandatory. I have considered whether it is appropriate to grant relief in both forms. On the facts of this case I am satisfied that it is.

Conclusion

In all of these circumstances, I make the orders and grant the relief sought.