In a multi-defendant lawsuit concerning posts on an investors' bulletin board, Mr Justice Eady said that comments on a board are not to be taken in the same context as those in, for example, a newspaper article.
He said that the casual, conversational nature of bulletin boards meant that defamatory comments were more like slander than libel. Slander relates generally to spoken comments and libel generally to written and published ones. In English law it is harder to win damages for slander than libel.
"[Bulletin board posts] are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out," he said in his ruling. "Those who participate know this and expect a certain amount of repartee or 'give and take'."
"When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions," said the ruling. "People do not often take a 'thread' and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it."
Nigel Smith runs a shareholder action group and his behaviour prompted comments on investor discussion bulleting boards run by ADVFN Ltd. Smith sued ADVFN and 37 individuals over comments claiming defamation.
Mr Justice Eady said that Smith had persistently pursued cases which were without merit and issued a civil restraint order against him, barring him from starting further actions. He later conceded that he could not do that, though, because he had stopped lawyers arguing about a civil restraint order in the course of the trial.
He did, though, order the continuation of a general stay on those cases which had already been begun.
The posters on the bulletin boards had criticised Smith for what they saw as heavy-handed behaviour and the issuing of threats of legal action by Smith when criticised. One said that he supported "those who were being threatened and bullied by … Mr Smith", and called Smith a bulletin board bully.
Another said: "I do not believe any of [another poster's] posts have been defamatory and Nigel Smith has behaved in an appalling manner. NS has discredited himself by his own actions".
Mr Justice Eady said that these comments were likely to be protected as fair comment, which means that they cannot count as defamation as long as they are posted without malice and represent the poster's honest views.
"I referred to common themes in the postings, such as that of 'bullying' other users and making 'threatening demands' for money. That is classic fair comment territory and, in the light of the modern authorities, it is inconceivable that a jury would find any of those who expressed such a view 'malicious' – let alone all of them," he said. "Opinions may be expressed in exaggerated and strident terms; the only requirement is that they be honestly held. It is fanciful to suppose that any of these people did not believe what they were saying. Even if they reached their conclusions in haste, or on incomplete information, or irrationally, the defence would still avail them."
In a case last year a number of posters on a football discussion website received similar protection. Club Sheffield Wednesday and some of its directors took a bulletin board to court to force it to reveal the identity of posters, but Richard Parkes QC, sitting as a deputy High Court judge, said that the identities should not be revealed.
"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."
Parkes ruled in the case that the expected right to privacy of the posters, who had posted using pseudonyms, outweighed the right of the directors and club to protect their reputation when the remarks in question were trivial.
Parkes was representing ADVFN in the current case.
Mr Justice Eady stressed that his ruling applied to the case before him, and that publishing via new technologies could lead to successful claims.
"I would not suggest for a moment that blogging cannot ever form the basis of a legitimate libel claim," he said. "I am focusing only on these particular circumstances."
In English law, a victim of libel can win damages even if he has not suffered financial loss as a result of the statement. A person who has been slandered must prove that actual damage has been suffered. Scots law, which does not distinguish libel from slander, requires proof of harm but not necessarily financial loss. In a defamation action under Scots law, there is a defence if the statement was made in the heat of an argument. The defence does not exist in English law.
Editor's note, 08/08/2008: Our original headline for this story was 'Internet chat more likely slander than libel, says High Court'. As a reader pointed out, real-time internet chat is a different type of platform from a bulletin board. So we've changed our headline for clarity.
Following the logic of Mr Justice Eady's reasoning, it seems highly likely to us that had the defamatory comments been made in an internet chatroom or by Instant Messenger, they would also be treated as slander, not libel.