Fentiman v Marsh

Factual and Procedural Background

This is a trial of a claim for libel brought by Plaintiff in respect of four publications alleged to be defamatory of him. The Plaintiff was represented by Attorney Reed throughout. The Defendant's Defence had largely been struck out by a prior Order of HH Judge Parkes QC, and the Defendant did not attend or participate in the trial. The trial took place on 22 July 2019, with the Defendant having informed the court by email that he was no longer resident in the UK and lacked funds to attend.

The claim faced difficulties concerning one of the four publications due to lack of direct reference to the Plaintiff and absence of pleaded innuendo, leading the Plaintiff to decide not to seek permission to amend the Particulars of Claim for that publication. The other three publications remained at issue.

Following a successful application by Attorney Reed to strike out parts of the Defence and for summary judgment, the trial issues were narrowed to the meaning of the publications, whether they caused serious harm under section 1(1) of the Defamation Act 2013, and, if so, the measure of damages.

The background includes that the Plaintiff is CEO of Company A, which supplies hygiene and bio-decontamination products to NHS hospitals. The Defendant had a history of making serious allegations against Company A and its directors, breaching a court undertaking not to publish defamatory material about Company A or its products.

The Defendant published numerous allegations on various internet platforms between 2016 and 2018, including claims that Company A's products were ineffective or dangerous and allegations of dishonesty and criminality against the Plaintiff and other directors. The Defendant pleaded guilty to contempt of court for breaching the undertaking and received a suspended prison sentence.

The present claim concerns three publications alleging the Plaintiff was responsible for illegal cyber-attacks on the Defendant's internet platforms. The Plaintiff denies involvement in any such cyber-attack but cannot confirm whether the attacks occurred.

The three publications, termed the First Post, Second Post, and Third Post, appeared on various internet platforms and contained allegations that the Plaintiff carried out illegal hacking activities, including a photograph altered to suggest a sinister character.

The Defendant's pleaded Defence admitted certain facts about the number of visits to the blogsites but denied that the photograph was altered to convey the pleaded defamatory meaning. The Defence also asserted that the meanings of the posts were substantially true or less serious than alleged by the Plaintiff.

The Plaintiff gave evidence expressing the serious harm caused by the allegations and his desire for vindication. Witnesses from Company A gave evidence describing the professional and personal impact of the hacking allegations on themselves, the Plaintiff, and the company, including reputational damage within their industry and community.

Legal Issues Presented

1. What is the natural and ordinary meaning of the words complained of in the three publications?
2. Did the publications cause or are likely to cause serious harm to the Plaintiff's reputation under section 1(1) of the Defamation Act 2013?
3. What is the appropriate measure of damages to be awarded to the Plaintiff?
4. Is an injunction appropriate to restrain future defamatory publications by the Defendant?

Arguments of the Parties

Plaintiff's Arguments

• The three publications allege the Plaintiff was responsible for illegal cyber-attacks and hacking, which are serious defamatory allegations damaging to his personal and professional reputation.
• The Defendant's refusal to retract, apologise, or admit falsity aggravates the harm and increases the need for a substantial damages award.
• The publications reached a significant audience including employees, industry contacts, and members of the Plaintiff's community, causing extensive reputational harm.
• The altered photograph in the Second Post added a malicious and defamatory tone to the allegations.
• The Plaintiff seeks vindication through damages and an injunction to prevent repetition.

Defendant's Arguments

• The pleaded meanings of the publications are substantially true, i.e., the Plaintiff was probably responsible for illegal cyber-attacks.
• The Third Post did not allege criminal charges but only that legal action was being taken preparatory to bringing charges.
• The photograph in the Second Post was not altered to convey a defamatory meaning; wearing a hood is common and not inherently negative.
• The publications had limited reach and engagement, with low numbers of views and interactions.
• Some allegations in the Defence suggest the Plaintiff has a history of dishonesty and criminality, supporting the truth of the publications.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered the meaning of the three publications, applying established defamation principles. The First Post was found to mean that the Plaintiff carried out an illegal cyber-attack on the Defendant's blogsite and social media pages. The Second Post meant that the Plaintiff is a hacker who carried out an unlawful cyber-attack the previous week, with the altered photograph reinforcing the defamatory meaning. The Third Post was interpreted as alleging that criminal charges were being brought against the Plaintiff and other directors for cyber-attacks, a meaning more serious than a mere suspicion.

The court then assessed whether the publications caused serious harm to the Plaintiff's reputation under section 1 of the Defamation Act 2013. It found that the allegations were grave and had an inherent tendency to cause serious harm. The number of people exposed to the publications was substantial, and there was evidence of extensive further dissemination through "grapevine" channels, especially within the Plaintiff's community and industry.

The evidence showed that even those close to the Plaintiff who trusted him were troubled and concerned that the allegations might be true, indicating serious reputational harm. The court accepted that harm could be established by inference from the nature of the allegations, extent of publication, and evidence of impact on the Plaintiff's professional and personal relationships.

Regarding damages, the court adopted established principles emphasizing compensation for damage to reputation, vindication of good name, and distress caused. It considered aggravating factors including the Defendant's persistence in asserting truth, refusal to apologise, and the provocative nature of the Defence. The court referenced comparable cases and found that an award of £45,000 for general damages plus £10,000 for aggravated damages was appropriate for all three publications combined.

Finally, the court considered the Plaintiff's application for an injunction to prevent future defamatory publications. Given the Defendant's conduct and the risk of repetition, the court found sufficient grounds to grant an injunction restraining the Defendant from publishing similar defamatory material in the future.

Holding and Implications

The court entered judgment for the Plaintiff and awarded damages of £55,000 in total for the three publications, comprising £45,000 general damages and £10,000 aggravated damages.

An injunction was granted to restrain the Defendant from publishing any words with the meanings complained of or otherwise libelling the Plaintiff in a similar manner.

The decision directly vindicates the Plaintiff's reputation and provides compensation for the harm suffered. The judgment does not establish new legal precedent but applies and confirms established principles in defamation law, particularly regarding meaning, serious harm, damages, and injunctive relief in the context of internet and social media publications.