Fentiman v Marsh

In a libel claim, meaning is determined by the single natural and ordinary meaning conveyed to the hypothetical reasonable reader, assessed in context and by reference to the medium of publication. Social-media posts ordinarily require an impressionistic, non-technical approach.

Under section 1 of the Defamation Act 2013, serious harm depends on the inherent tendency of the words together with their actual impact. The assessment is not merely a numbers game. The court may draw inferences from the gravity of the allegation, the quality and extent of publication, belief in the allegation and likely grapevine dissemination.

Libel damages compensate reputational harm, vindicate reputation and compensate distress, with aggravating conduct taken into account. An injunction may be granted where there is a sufficient risk of repetition.

Warrick Fentiman brought a libel claim against Richard Marsh concerning three internet and social-media publications alleging that Mr Fentiman had carried out an unlawful cyber-attack, was a hacker, and faced criminal proceedings for computer misuse offences.

The defendant did not attend trial and was unrepresented. Earlier procedural orders had narrowed the issues to meaning, serious harm and damages. The court also considered the appropriate damages and whether an injunction should restrain repetition.

1. Meaning. The court adopted the established approach that the task is to determine the single natural and ordinary meaning conveyed by the words to the hypothetical reasonable reader. Intention is irrelevant. The publication must be read as a whole, in its context and having regard to its mode of publication. For social-media posts, the court should avoid elaborate parsing and assess the impression likely to be formed by a typical reader who scrolls quickly. The First Post meant that Mr Fentiman was responsible for an illegal cyber-attack. The Second Post meant that he was a hacker who had carried out an unlawful attack and prevented access to the blogsite. The Third Post conveyed very strong grounds to suspect that he was guilty of Computer Misuse Act 1990 offences and that criminal charges were being brought against him.
2. Serious harm. Section 1 of the Defamation Act 2013 requires proof that the publication caused or was likely to cause serious harm. Where harm has been caused, the inquiry concerns the actual impact of publication, assessed together with the inherent tendency of the words. The assessment is not simply a numbers exercise. The court may draw inferences from the gravity of the imputation, the identity and quality of publishees, the extent of direct publication, belief in the allegation and likely grapevine dissemination. The serious criminal and dishonesty allegations, their publication to substantial audiences and evidence of percolation established serious harm in respect of all three Posts.
3. Damages. Damages serve the functions of compensating injury to reputation, vindicating the claimant’s good name and compensating distress, hurt and humiliation. Relevant factors included the gravity of the allegations, extent and identity of publication, refusal to retract or apologise, persistence in pleading truth, grapevine dissemination and aggravating conduct during the proceedings. A single award of £45,000 was appropriate for the three Posts, with £10,000 aggravated damages.
4. Injunction. In the circumstances, including the defendant’s history and conduct of the proceedings, there were sufficient grounds to fear repetition. An injunction restraining repetition was therefore appropriate.
5. There was judgment for Mr Fentiman for £55,000 in respect of the three Posts. The precise terms of the injunction and costs were reserved for hand-down.

First-instance trial judgment. The judgment refers to an earlier procedural decision in Fentiman v Marsh at [2019] EWHC 1563 (QB), which had narrowed the issues for trial.