The Bussey Law Firm PC & Anor v Page

Responsibility for an internet publication may be established on the balance of probabilities where it was made through the defendant’s account and no convincing alternative explanation exists. A claimant suing in England for foreign publication must establish actionability under both English law and the lex loci delicti. The court may presume that foreign law is the same as English law unless rebutted. Compensatory defamation damages address distress, injury to reputation and visible vindication, with the assessment reflecting the distinct interests of individual and business claimants.

The claim arose from a defamatory review posted on the defendant’s Google account concerning a Colorado lawyer and his law firm. The publication remained accessible for about a year before removal. The claimants relied only on publication in Colorado.

The principal liability issue was whether the defendant was responsible for the posting. He alleged that an unidentified third party had hacked his account. The court also considered a late amendment concerning actionability under Colorado law, damages, punitive damages and injunctive relief.

1. Liability. The defendant was responsible for the posting on the balance of probabilities. It was made from his Google account, while his proposed hacking explanations were improbable. The court found that he had authored or authorised the posting. It was unnecessary to determine his motive.
2. Foreign publication. A claimant seeking a remedy in England for defamatory publication abroad must plead, and if necessary prove, that the words are actionable under both English law and the lex loci delicti. The court permitted a late amendment and relied on the presumption that the relevant foreign law was the same as English law, since the defendant declined an opportunity to plead to the amendment or rebut the presumption. The approach was supported by University of Glasgow v The Economist (1997) EMLR 495, OPO v MLA [2014] EWCA Civ 1277 and Ames v The Spamhaus Project Ltd [2015] EWHC 127.
3. Damages. Compensatory general damages serve three purposes: compensation for hurt feelings and distress, injury to reputation, and an outward and visible sign of vindication. The individual claimant’s award reflected personal distress and professional reputation. The firm’s award focused on business reputation and vindication, taking some account of the grapevine effect, with reference to Cairns v Modi [2013] 1 WLR 1015 and Ley v Hamilton (1935) 153 LT 384.
4. The £50,000 cap on damages meant that no additional punitive damages were awarded. No injunction was granted because republication was not considered likely.