Dr Riccardo Frati v Karen Bowen-Carter

For summary judgment in a libel claim, the claimant need only show a realistic, rather than fanciful, prospect of proving publication. Publication to one person may suffice, but the tort must be real and substantial. Internet publication creates no presumption of substantial publication. A claimant may rely on evidence from which the court can infer publication, including evidence about viewing figures, the nature of the website and how users engage with it.

A pleading may rely on the likely “grapevine effect” of defamatory material, provided there is evidence of actual republication or a platform from which republication can be inferred. Permission to amend is determined under the overriding objective, having regard to proportionality, prejudice, procedural stage and the relevance of the amendments to issues that will in any event require determination.

The claimant, a plastic surgeon, sued the defendant, a former patient, in libel, harassment and malicious falsehood over a Google Business Review. The defendant applied for summary judgment or strike out, initially relying on serious harm, malicious falsehood and the Jameel jurisdiction. By the hearing, the application was confined to whether the claimant had a realistic prospect of proving publication or substantial publication.

The claimant also sought permission to amend his pleadings to rely on alleged republication, the “grapevine effect”, malice, serious harm and matters relevant to harassment. The central issues were whether the evidence afforded a sufficient platform to infer publication and whether the proposed amendments should be permitted.

1. Summary judgment. The application was dismissed. The court applied the approach in Easyair Limited (Trading As Openair) v Opal Telecom Limited [2009] EWHC 339 (Ch). The question was whether the claimant had a realistic prospect of establishing publication, not whether publication had been finally proved. The court should avoid a mini-trial, consider evidence reasonably expected at trial and determine a short point where the evidence and argument are sufficient.
2. At trial, the claimant must prove publication to someone other than himself. Publication to a single person can suffice, as stated in Capital and Counties Bank v Henty (1882) 7 App Cas 741. However, there must be a real and substantial tort. The concept of substantial publication arises from the Jameel v Dow Jones & Co Inc [2005] QB 946 jurisdiction, which was not pursued on the present application.
3. There is no legal presumption of substantial publication from internet publication. The claimant may prove publication through evidence from a publishee or by pleading a platform of facts from which publication can be inferred. The evidence of Google Business Review views, the claimant’s online profile, the relevance of reviews to prospective patients and the likely use of the review by users provided a realistic basis for such an inference. Further evidence about how reviews were used could reasonably be available at trial.
4. The court declined to determine finally the extent of publication. Authorities concerning substantial publication in the Jameel context, including Webb v Jones [2021] EWHC 1618 (QB), did not justify summary judgment where the present application no longer relied on that jurisdiction.
5. Amendments. Permission was granted, subject to restructuring, for the claimant to plead the grapevine effect. Following Turley v Unite the Union [2019] EWHC 3547(QB), likely percolation of defamatory material may be relevant to publication and serious harm, but it requires evidence of actual republication or a platform from which republication can be inferred. The proposed repetition material was also allowed because it was relevant to harassment and alleged malice, despite the risk of broadening the issues. The court applied the overriding objective, including proportionality, prejudice, expense and the procedural stage of the proceedings. Other clarification amendments were permitted.