Carrie v Tolkien

A claimant who controls a website and knowingly leaves defamatory material available after discovering it may be taken to have consented to, or acquiesced in, subsequent publication. Internet publication does not automatically establish substantial publication. Publication must be pleaded and supported by evidence permitting a proper inference about readership. Where only minimal publication is shown, the court may strike out the claim as an abuse of process because there is no realistic prospect of establishing a real and substantial tort. Each publication constitutes a separate cause of action for limitation and amendment purposes. A later claim concerning publication on a different website will not arise from the same or substantially the same facts merely because the words are similar.

The claimant brought a libel claim concerning words allegedly posted by the defendant on the claimant’s blog. The defendant denied responsibility for publication, but the application proceeded on the assumption that publication could be proved. The defendant sought summary judgment or strike-out in respect of publications left online after the claimant discovered them, and in respect of the short period before discovery. He also challenged an amendment substituting publication on the claimant’s website for publication on another website after expiry of the limitation period.

The issues were whether subsequent publication was consensual, whether there was evidence of substantial publication before discovery, whether the residual claim was an abuse of process, and whether the amendment introduced a new claim under CPR Part 17.4(2).

1. Consent and acquiescence. The claimant controlled the blog, could remove the posting, discovered it on the day of publication, and nevertheless left it available. His explanation that he wished to preserve it in context did not undermine consent or acquiescence. There was no realistic prospect of a properly directed jury finding otherwise in relation to subsequent publications.
2. Publication before discovery. Placing material on the Internet created no presumption that substantial publication had occurred. Following Al Amoudi v Brisard [2001] 1 WLR 113, publication had to be pleaded and established by evidence from which a proper inference could be drawn. The assertion that the words had been accessed by a large but unquantifiable number of readers was insufficient.
3. Abuse of process. The remaining possible publication period was at most four hours and 19 minutes, with no evidence of substantial readership. Applying the approach in Jameel (Yousef) v Dow Jones Inc [2005] QB 946, the claim fell within the mischief of the abuse-of-process jurisdiction. The jurisdiction was exercised only rarely, but this was an appropriate case because there was minimal, if any, publication and no realistic prospect of establishing a real and substantial tort. The possibility of an injunction did not justify proceeding: there was no reason to anticipate further publication by the defendant, and an injunction would not restrain others. The point was consistent with the caution noted in Steinberg v Pritchard Englefield [2005] EWCA Civ 288.
4. Amendment. Publication on the claimant’s website was a new claim. Every publication was a separate cause of action, and publication on that website arose from facts different from publication on the originally pleaded website. CPR 17.4(2) therefore did not permit the amendment after expiry of limitation. The court would in any event have refused the exercise of discretion because the substituted claim had no realistic prospect of success.
5. The defendant’s applications succeeded. The claim based on subsequent publication was defeated by consent, the residual claim was struck out as an abuse of process, and the amendment was disallowed. The proposed claim concerning another website was also refused as out of time and unsupported by any explanation for delay.