Friday, 26 October 2007

Sheffield Wednesday can't unmask 'saloon-bar moaners', says libel judge

Interesting slant on the question of defamation on discussion forums. On this occasion the question is not about culpability but about whether or not the comment is serious enough to warrant forcing the publisher to reveal the identities of the people who wrote the comments.

According to OutLaw, the case concludes that comments that are "strictly defamatory" can still be so trivial that they do not warrant an invasion of the authors' privacy rights:

Depute Judge Richard Parkes QC noted that the order, if granted, would disclose "the identities, or at least the e-mail addresses, of users of the [website] who must have expected, given their use of anonymous pseudonyms, that their privacy would be respected."

In yesterday's judgment, Parkes wrote: "the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court."

Making reference to the Data Protection Act, he added: "Equally, it is clear that no order should be made for the disclosure of the identity of a data subject … unless the court has first considered whether the disclosure is warranted having regard to the rights and freedoms or the legitimate interests of the data subject."

Parkes said it was relevant "to consider whether the words complained of were, even if strictly defamatory, more than a trivial attack which would not be taken seriously."

"I do not think it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory or little more than abusive or likely to be understood as jokes," he wrote. "That, it seems to me, would be disproportionate and unjustifiably intrusive."

A comment by a user called 'cbrbob' fell into that category. It replied to another's posting about a trip abroad by the club's manager and its chief executive to watch players with a view to making a signing. "They blew all the money on hookers," wrote cbrbob. Someone else replied, "It's not a hooker we need, it's a striker," to which cbrbob retorted, "they wouldn't know the difference."

Parkes wrote: "The Claimants are not, it appears, concerned about the suggestion that they spent the club's money on prostitutes, which I presume they accept might have been unlikely to be taken seriously, but with the suggestion that the [chief executive] would not have known the difference between a hooker in rugby and a striker in football, which would have been understood to mean that [the chief executive] would not have been capable of spotting a competent player.".

My thanks to colleague Kieran Daly for spotting this.

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