Applause Store Productions Ltd. & Anor v Raphael

Liability for material published through an internet account may be established by circumstantial evidence where the surrounding facts make competing explanations implausible. Relevant considerations include the timing and pattern of account activity, the defendant’s knowledge of the claimant and the published information, and the absence of a credible alternative user.

For defamation, words are given their natural and ordinary meaning to the ordinary reasonable reader, without over-elaborate analysis. Damages must reflect seriousness, extent of publication, injury to reputation, hurt and distress, and any aggravating conduct. A company may recover damages for injury to its business reputation and vindication despite absence of proved financial loss.

Applause Store Productions Ltd and Matthew Firsht sued Grant Raphael over a false Facebook profile and linked group page. The profile disclosed or asserted private information about Mr Firsht. The group page made defamatory allegations concerning Mr Firsht and Applause Store.

The material was created from an IP address associated with Mr Raphael’s flat. He accepted some Facebook activity but denied creating the profile or group, attributing the disputed activity to strangers who had attended a party at his flat. The issues were whether he was responsible, the meaning and actionable status of the publications, and the appropriate damages.

1. Liability. The court found that Mr Raphael created both the false profile and the defamatory group page. The activity log showed all relevant Facebook activity from the IP address. Its timing and pattern were more consistent with one user switching between profiles than with simultaneous use by two computers. The detailed information published, searches for Mr Raphael’s acquaintances, repeated searches for Mr Firsht and the use of a photograph from Simon Firsht’s profile made the stranger explanation far-fetched.
2. The court rejected Mr Raphael’s account as implausible and found that he lied about his involvement. The evidence of the proposed alibi witnesses was unreliable. The finding that he created the profile independently supported the conclusion that he created the group page, while the afternoon activity on 20 June 2007 independently pointed to the same conclusion.
3. Meaning and causes of action. Applying the approach in Skuse v Granada Television Ltd [1996] EMLR 278 and Gillick v Brook Advisory Centres [2001] EWCA Civ 1263, the words conveyed that Mr Firsht owed substantial sums, had repeatedly avoided payment by lying and making implausible excuses, and represented a serious credit risk. The profile contained private information giving rise to a claim for misuse of private information. The group page was defamatory of both claimants.
4. Damages. The court awarded £15,000 to Mr Firsht and £5,000 to Applause Store for defamation, including aggravation in Mr Firsht’s case. It awarded Mr Firsht £2,000 for misuse of private information, taking a global view because most readers were likely to have seen both publications. The court declined to award aggravated damages under both heads and reserved the question of injunctions for further submissions.

First-instance decision of the High Court (Queen’s Bench Division). No prior appellate decision is stated in the judgment.