Sheffield Wednesday FC, its chairman, Dave Allen, chief
executive Kaven Walker and five directors took legal action against
Neil Hargreaves who runs a fan discussion site called
Owlstalk.co.uk.
They wanted an order from the court to force Hargreaves to
identify 11 members of his site whom they accused of pursuing a
"sustained campaign of vilification" against them. These
individuals were responsible for a total of 14 messages that were
alleged to be defamatory. The individuals posted their comments to
the site under pseudonyms.
Depute Judge Richard Parkes QC noted that the order, if granted,
would disclose "the identities, or at least the e-mail addresses,
of users of the [website] who must have expected, given their use
of anonymous pseudonyms, that their privacy would be
respected."
In yesterday's judgment,
Parkes wrote: "the court must be careful not to make an order which
unjustifiably invades the right of an individual to respect for his
private life, especially when that individual is in the nature of
things not before the court."
Making reference to the Data Protection Act, he added: "Equally,
it is clear that no order should be made for the disclosure of the
identity of a data subject … unless the court has first considered
whether the disclosure is warranted having regard to the rights and
freedoms or the legitimate interests of the data subject."
Parkes said it was relevant "to consider whether the words
complained of were, even if strictly defamatory, more than a
trivial attack which would not be taken seriously."
"I do not think it would be right to make an order for the
disclosure of the identities of users who have posted messages
which are barely defamatory or little more than abusive or likely
to be understood as jokes," he wrote. "That, it seems to me, would
be disproportionate and unjustifiably intrusive."
A comment by a user called 'cbrbob' fell into that category. It
replied to another's posting about a trip abroad by the club's
manager and its chief executive to watch players with a view to
making a signing. "They blew all the money on hookers," wrote
cbrbob. Someone else replied, "It's not a hooker we need, it's a
striker," to which cbrbob retorted, "they wouldn't know the
difference."
Parkes wrote: "The Claimants are not, it appears, concerned
about the suggestion that they spent the club's money on
prostitutes, which I presume they accept might have been unlikely
to be taken seriously, but with the suggestion that the [chief
executive] would not have known the difference between a hooker in
rugby and a striker in football, which would have been understood
to mean that [the chief executive] would not have been capable of
spotting a competent player."
Parkes said this and another statement were plainly intended as
jokes. Two others were deemed "no more than saloon-bar moanings
about the way in which the club is managed". Another two "add to
the mix a smidgeon of personal abuse of a kind which I would have
thought most unlikely to be taken seriously."
He ruled that the identity of seven of the 11 individuals should
be protected.
However, he did regard some comments as more serious, being
"those which may reasonably be understood to allege greed,
selfishness, untrustworthiness and dishonest behaviour on the part
of the Claimants."
Here he said that the claimants' right to take action to protect
their reputations outweighs the authors' rights "to maintain their
anonymity and their right to express themselves freely".
A relevant factor in this decision was a term in the site's
conditions of use, to which members must agree, forbidding
defamatory language on the bulletin board. He also noted the
absence of any policy of confidentiality for the benefit of users,
implying that such a policy might give a website a better chance to
protect its users' identities.
The judge ordered the disclosure of the identities of four
users, known only as halfpint, Ian, Vaughhan and DJ Mortimer.
Stefan Paciorek, a partner with Pinsent Masons, the law firm
behind OUT-LAW.COM, said that the operator of this site did the
right thing in letting the court decide whether he should reveal
the names of these people or not.
"The guidance is really interesting. It's possibly the first
case of online defamation we've had in this country where the right
to privacy has outweighed the right to protect a reputation simply
because defamatory comments were trivial," said Paciorek.
"Website operators might consider reviewing their terms of use
in light of the court's guidance that a confidentiality policy can
better protect your users' privacy," he added.
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