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Sheffield Wednesday can't unmask 'saloon-bar moaners', says libel judge

The High Court has protected the identities of seven individuals who made comments on a football website's message board. Comments that are "strictly defamatory" can still be so trivial that they do not warrant an invasion of the authors' privacy rights.19 Oct 2007

Free OUT-LAW Breakfast Seminars, UK-wide. 1:The new regime for prize draws and competitions. 2:How to monitor staff legallySheffield 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.