RODNEY GOLDSMITH v MICHAEL BISSETT-POWELL

In a defamation claim, identification, defamatory meaning, serious harm and causation must each be established in relation to the publications sued upon. The identification question is objective: whether reasonable people would understand the words to refer to the claimant. Under section 1 of the Defamation Act 2013, serious harm is a factual question assessed by reference to the words, the claimant, the circumstances of publication and the actual or likely impact on publishees. It is not merely a numbers exercise, but harm must be caused by the publications sued upon. Separate publications ordinarily cannot be aggregated without a special closeness or inter-weaving. Defences of truth and publication on a matter of public interest may provide alternative answers. The claim failed because the claimant was not sufficiently identified, serious harm and causation were not proved, and the relevant imputations were substantially true and published on a matter of public interest.

The claimant, chairman of Steyning Parish Council, sued the defendant over Facebook postings concerning parish-council expenditure and an incident at a local café. Some postings were made by the defendant and others by third parties. The claimant alleged that the defendant was liable for third-party postings as a website operator under section 5 of the Defamation Act 2013, including because of malice.

The principal issues were whether the publications referred to the claimant, whether they were defamatory, whether they caused serious harm to his reputation, whether the defendant could establish truth or public interest, and whether section 5 applied to the third-party postings.

1. August posting. The words complained of did not identify the claimant. The objective test was whether reasonable people would reasonably understand the passage to refer to him. The reference to one councillor did not single him out, and the later express reference to the chairman suggested that the earlier reference was to someone else. No relevant innuendo facts were pleaded.
2. Even if identification had been established, the chairman/vice-chairman passage was opinion protected by section 3 of the Defamation Act 2013, and the post concerned the public performance of elected representatives and fell within section 4. The claimant also failed to prove serious harm caused by that post. The possible effect on a future election was too remote and speculative.
3. Café postings. The court assumed in the claimant’s favour that the defendant could be treated as an operator for section 5 purposes. The claimant was not identified in the third-party postings, and the specific reference to him in the 12 December posting was deleted within hours. There was no evidence that anyone read that reference.
4. Serious harm was not proved. The allegations were not of a kind permitting serious harm to be inferred without evidence of impact. The claimant’s evidence of banter and embarrassment was insufficient. The likely readership already included people critical of him, Facebook was a casual medium, and the café incident had spread through local word of mouth before the defendant’s postings. Thus, even if serious harm existed, it was not caused by the publications sued upon. Separate publications could not be combined contrary to the principle in Sube v News Group Newspapers without the necessary inter-weaving.
5. The truth defence under section 2 succeeded. The substantially true sting was that the claimant, acting as chairman, had behaved rudely and domineeringly towards the café owner, demanded removal of the board, gesticulated with his walking stick and reduced her to tears. The unproved allegations of vandalism, theft and benefiting a rival business did not defeat the defence, applying section 2(3).
6. Alternatively, the café postings concerned the conduct of an elected representative and were protected by section 4. The defendant could rely on section 5(2) for postings by identified third-party authors, and there was no evidence of malice under section 5(11). The claim was dismissed and judgment entered for the defendant.

First-instance decision. No prior appellate decision is stated in the judgment.