“The image depicts [Mr Fentiman] wearing a hood. A hood is a very common article of clothing and has no obvious negative connotations – it is often associated with monastic orders – see below [followed by a cartoon featuring monks].”
“… I will not attempt to quantify the harm caused by any particular post in this witness statement. I do believe that the posts about which I complain in this claim were harmful to my reputation. I suspect that Mr Marsh has no money (which is what he has said), and so what I really seek in this action is vindication by virtue of the action succeeding and by virtue of the size of the damage award – albeit in the expectation that I will never recover any of my legal costs, let alone any damages awarded. This might be considered as some measure of the upset that these particular allegations have caused me. I believe that the allegations that I complain of in this claim are allegations of a nature which are seriously harmful to my reputation. I also believe that unless I take action, Mr Marsh’s conduct is likely to continue. Furthermore, I find it aggravating that the Defendant is using his defence of this claim as a platform for repeating the multiple other outrageous allegations that he has made against me and SHS. … The seriously defamatory allegations about which I complain have no truth in them whatsoever, and I hope that the court will vindicate my reputation.”
“… As I have been at SHS since 2014, I know what it was like to work for the business before and after the Defendant’s allegations. I also worked with the Defendant at SHS and was very upset about the allegations he made against SHS’s products after he had left. However, as my role at SHS is to ensure the product efficacy and to develop the products, I was able to reassure myself that these allegations about SHS’s products were not factually correct. We had evidence that the allegations were not true. However, I did not have any evidence that the Claimant did not hack the Defendant’s systems. Prior to the hacking allegations being published, there was a lot happening at SHS due to the Defendant’s other allegations and it was a difficult environment to work in. However, from working with the Claimant, I understood him to always be truthful and do the right thing. I saw the Claimant as a role model, as somebody I looked up to and learned from. When the hacking allegations were published, the focus shifted as the allegations were now directed at the Claimant as an individual and his conduct, and not at SHS’s products or matters relating to SHS’s products. I was worried that the Claimant had cracked under the pressure in trying to deal with the product allegations in the proper and lawful manner, as he had been doing. I had seen first-hand the immense pressure that the Claimant had been under. SHS was his business and he assumed all of the responsibility for it. The Claimant had spent a good deal of time trying to deal with the Defendant’s product allegations, yet they remained online. I believed that it was possible that the Claimant had taken an easy way out to bring the Defendant’s blogsites down and hacked the Defendant’s systems. I think it is only natural that this crossed my mind given the allegations. I was confused. I thought I knew the Claimant and his character, and I respected him, but having seen the hacking allegations I was no longer sure about him. Before the cyber-attack, the Defendant posted on a routine basis and it seemed nothing would stop his posts. I thought maybe the Claimant had decided to take matters into his own hands, being fed up with having the false allegations out there on the internet, and dealt with this problem by choosing to hack the Defendant’s systems in a desperate attempt to support SHS. This was a stressful time. I did not speak to anybody about the hacking allegations about the Claimant. I decided it would be inappropriate, given my role, and because, as much as I have come to know the Claimant by working for SHS, he is my manager and the owner of SHS. However, I do recall the Claimant bringing up the allegations generally and explaining it was more of the Defendant’s “nonsense” and other team members making clear the hacking allegations were crazy, absurd and just another attack but on a personal level. The hacking allegations did have a professional impact on me. I have always been ambitious and career driven and I was worried about my professional reputation. If I decided to leave SHS, I was worried what opportunities there would be out there for me and I was concerned that my CV would be tainted by the allegations … I did not want to miss out on the opportunity to work somewhere because I had been tainted by working for SHS. … SHS operates in a small, closed and niche industry. The allegations, including the hacking allegations, would likely be known to the industry and to SHS’s competitors. I would be extremely surprised if SHS’s competitors were not aware of all of the allegations, and if they were not following them. I was worried that the allegations would have a longer term impact on SHS and the Claimant, and me professionally, due to circulation within this closed industry.”
“In late September 2017, I became aware that the Defendant’s blog was no longer online. A couple of weeks later I became aware that the blog was back online, and I saw that the Defendant made posts claiming that he was the victim of a cyber-attack and that the Claimant was the perpetrator of that attack. I have been shown what I am told have been referred to as the First Post, the Second Post, and the Third Post, in this claim. I recall seeing the First Post and the Second Post, but I do not recall seeing the Third Post. I particularly remember the Second Post as it contained a photograph of the Claimant’s face. The First and Second Posts made me feel a little bit unnerved and uneasy. The allegations were scary. … The hacking allegations were different to the other allegations levied at SHS as they concerned the Claimant’s character and integrity, not just the products which the employees had faith in. I took the hacking allegations seriously and wondered whether the Claimant had carried out the cyber-attack. The Defendant had been busy posting continuously about SHS for the preceding year and the allegations of hacking made me question why he would have chosen to stop now. I wondered what the Claimant had to hide as he had always said he would go down the professional and legal route to deal with the Defendant’s allegations. So as a result of the allegation of hacking that the Defendant had made against the Claimant, I thought that perhaps the other allegations might be true after all. The allegation that the Claimant had carried out the cyber-attack made sense to me, as I knew that the Defendant’s blog which made the allegations against the Claimant and SHS had disappeared from the internet, and I thought the only possibilities were that the Defendant had taken it down himself, or that the Claimant for SHS had taken it down. I could not think why the Defendant would have taken it down himself, and when the Defendant accused the Claimant and SHS that seemed to make sense to me. In the office, the Claimant would often speak to me and I did wonder whether he had hacked the Defendant’s accounts because he was trying to cover up serious faults within SHS’s products. Whilst I don’t think that I behaved differently towards the Claimant following the hacking allegations, I did feel differently towards him and tried to keep him at arms-length. I was worried that the allegations were true, or might be true. I was careful what I said around him, and I listened carefully to the Claimant for anything he said which might confirm that the hacking allegations were true. … The Defendant’s blog and the Defendant’s hacking allegations were discussed amongst the other employees of SHS, both at work and at social events. I know this because I heard it. The employees I spoke to, and heard speaking, knew that the Defendant’s posts had been removed and the blame pointed at the Claimant … I know these posts alleging hacking made me question whether the allegations levied by the Defendant about SHS’s products were in fact true. … By the time of the hacking allegations in October 2017, I had been working at SHS for about two and a half years and I had a good working relationship with the Claimant. Despite this, the hacking allegations made me feel uneasy and I was unsure whether I wanted to continue working for SHS. By this point, I thought I knew the Claimant, but was always questioning whether I really did – which was not a nice feeling …”
“I've got no specific recollection of people asking me directly about the hacking allegations”
“There has been no dispute as to the legal principles. They are well-established and very familiar. The Court’s task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words bear. It is well recognised that there is an artificiality in this process because individual readers may understand words in different ways: Slim v Daily Telegraph Ltd[1968] 2 QB 157 , 173D–E, per Lord Diplock. The following key principles can be distilled from the authorities: see e.g. Slim v Daily Telegraph Ltd 175F; Charleston v News Group Newspapers Ltd[1995] 2 AC 65 , 70; Gillick v Brook Advisory Centres[2002] EWCA Civ 1263 [7]; Charman v Orion Publishing Co Ltd[2005] EWHC 2187 (QB) [8]-[13]; Jeynes v News Magazines Ltd & Anor[2008] EWCA Civ 130 [14]; Doyle v Smith[2018] EWHC 2935 [54]-[56]; Lord McAlpine of West Green v Bercow[2013] EWHC 1342 (QB) [66]; Simpson v MGN Ltd [2016] EMLR 26 [15]; Bukovsky v Crown Prosecution Service[2017] EWCA 1529 [2018] 1 WLR 18 ; Brown v Bower[2017] 4 WLR 197 [10]-[16] and Sube v News Group Newspapers Ltd[2018] EWHC 1234 (QB) [20]: (i) The governing principle is reasonableness. (ii) The intention of the publisher is irrelevant. (iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other nondefamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve. (iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task. (v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties. (vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected. (vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense. (viii) The publication must be read as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues’ gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases). (ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication. (x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning. (xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication’s readership. (xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. (xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning). As to the Chase levels of meaning, see Brown vBower [17]: They come from the decision of Brooke LJ in Chase v News Group Newspapers Ltd[2003] EMLR 11[45] in which he identified three types of defamatory allegation: broadly, (1) the claimant is guilty of the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant has committed the act. In the lexicon of defamation, these have come to be known as the Chase levels. Reflecting the almost infinite capacity for subtle differences in meaning, they are not a straitjacket forcing the court to select one of these prescribed levels of meaning, but they are a helpful shorthand. In Charman v Orion Publishing Group Ltd, for example, Gray J found a meaning of “cogent grounds to suspect” [58].” [7]; Charman v Orion Publishing Co Ltd[2005] EWHC 2187 (QB) [8]-[13]; Jeynes v News Magazines Ltd & Anor[2008] EWCA Civ 130 [14]; Doyle v Smith[2018] EWHC 2935 [54]-[56]; Lord McAlpine of West Green v Bercow[2013] EWHC 1342 (QB) [66]; Simpson v MGN Ltd [2016] EMLR 26 [15]; Bukovsky v Crown Prosecution Service[2017] EWCA 1529 [2018] 1 WLR 18 ; Brown v Bower[2017] 4 WLR 197 [10]-[16] and Sube v News Group Newspapers Ltd[2018] EWHC 1234 (QB) [20]: (i) The governing principle is reasonableness. (ii) The intention of the publisher is irrelevant. (iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other nondefamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve. (iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task. (v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties. (vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected. (vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense. (viii) The publication must be read as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues’ gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases). (ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication. (x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning. (xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication’s readership. (xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. (xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning). They come from the decision of Brooke LJ in Chase v News Group Newspapers Ltd[2003] EMLR 11[45] in which he identified three types of defamatory allegation: broadly, (1) the claimant is guilty of the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant has committed the act. In the lexicon of defamation, these have come to be known as the Chase levels. Reflecting the almost infinite capacity for subtle differences in meaning, they are not a straitjacket forcing the court to select one of these prescribed levels of meaning, but they are a helpful shorthand. In Charman v Orion Publishing Group Ltd, for example, Gray J found a meaning of “cogent grounds to suspect” [58].”
“[41] The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read. [42] In Monroe v Hopkins[2017] 4 WLR 68 , Warby J at para 35 said this about tweets posted on Twitter: “The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.” [43] I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is preeminently one in which the reader reads and passes on. [44] That essential message was repeated in Monir v Wood[2018] EWHC (QB) 3525 where at para 90, Nicklin J said, “Twitter is a fast moving medium. People will tend to scroll through messages relatively quickly.”
“It is very important when assessing the meaning of a Tweet not to be over-analytical. … Largely, the meaning that an ordinary reasonable reader will receive from a Tweet is likely to be more impressionistic than, say, from a newspaper article which, simply in terms of the amount of time that it takes to read, allows for at least some element of reflection and consideration. The essential message that is being conveyed by a Tweet is likely to be absorbed quickly by the reader.” [45] And Nicklin J made an equally important point at para 92 where he said (about arguments made by the defendant as to meaning), “… these points only emerge as a result of close analysis, or someone pointing them out. An ordinary reasonable reader will not have someone by his/her side making points like this.” “The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.” “It is very important when assessing the meaning of a Tweet not to be over-analytical. … Largely, the meaning that an ordinary reasonable reader will receive from a Tweet is likely to be more impressionistic than, say, from a newspaper article which, simply in terms of the amount of time that it takes to read, allows for at least some element of reflection and consideration. The essential message that is being conveyed by a Tweet is likely to be absorbed quickly by the reader.”
“CYBER-ATTACK, DEPROX, HYGIENE SOLUTIONS LTD, RICK FENTIMAN, UCLH”
“there are very strong grounds to suspect that Mr Fentiman is guilty ofComputer Misuse Act 1990 offences”
“… section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”
“Depending on the circumstances of the case, the claimant may be able to satisfy section 1 without calling any evidence, by relying on the inferences of serious harm to reputation properly to be drawn from the level of the defamatory meaning of the words and the nature and extent of their publication.”
“In my judgment, the authorities demonstrate that it is the quality of the publishees not their quantity that is likely to determine the issue of serious harm in cases involving relatively small-scale publication. What matters is not the extent of publication, but to whom the words are published. A significant factor is likely to be whether the claimant is identified in the minds of the publishee(s) so that the allegation “sticks” … (ii) A feature of the “sticking power” of a defamatory allegation that has potential relevance to the assessment of serious harm is the likelihood of percolation/repetition of the allegation beyond the original publishees (“the grapevine effect”) (Slipper v BBC[1991] 1 QB 283 , 300 per Bingham LJ). In Sloutsker v Romanova [2015][2015] EWHC 545 (QB) ; [2015] 2 Costs LR 321, Warby J said at [69]: “… It has to be borne in mind that the assessment of whether there is a real and substantial tort is not a mere numbers game, and also that the reach of a defamatory imputation is not limited to the immediate readership. The gravity of the imputations complained of… is a relevant consideration when assessing whether the tort, if that is what it is, is real and substantial enough to justify the invocation of the English court's jurisdiction. The graver the imputation the more likely it is to spread, and to cause serious harm. It is beyond dispute that the imputations complained of are all extremely serious.” (ii) A feature of the “sticking power” of a defamatory allegation that has potential relevance to the assessment of serious harm is the likelihood of percolation/repetition of the allegation beyond the original publishees (“the grapevine effect”) (Slipper v BBC[1991] 1 QB 283 , 300 per Bingham LJ). In Sloutsker v Romanova [2015][2015] EWHC 545 (QB) ; [2015] 2 Costs LR 321, Warby J said at [69]: “… It has to be borne in mind that the assessment of whether there is a real and substantial tort is not a mere numbers game, and also that the reach of a defamatory imputation is not limited to the immediate readership. The gravity of the imputations complained of… is a relevant consideration when assessing whether the tort, if that is what it is, is real and substantial enough to justify the invocation of the English court's jurisdiction. The graver the imputation the more likely it is to spread, and to cause serious harm. It is beyond dispute that the imputations complained of are all extremely serious.”
“It is commonplace for a claimant to adduce evidence that has … limits [as to the extent of publication], and the reasons are well-known: see Sobrinho (above). Here, the claimant’s evidence in his witness statements for trial was if anything more extensive than one might expect in all the circumstances. During the trial, Mr Foster’s evidence that “many members” of the Club were monitoring the Website was not challenged. In cross-examination he elaborated: “Everybody in the Club knew about it. Everyone was talking about it”. … The victim of a libel cannot ordinarily identify all the publishees. Further, as [Counsel] points out, there is the “grapevine effect” referred to in Sobrinho.”
“The authorities suggest that the Court should have regard to other awards made by Judges and/or approved by the Court of Appeal, in respect of comparable libels”
“There was very good reason to believe that the Claimant had been guilty of participation in an attempt to defraud members of the Club of many millions of pounds, by allowing the Club to issue what he knew to be false and deceptive documentation about a proposed land sale and then, with a view to ensuring the proposal went through, asking the Club not to correct it.” “There was very good reason to believe that the Claimant had been guilty of participation in an attempt to defraud members of the Club of many millions of pounds, by allowing the Club to issue what he knew to be false and deceptive documentation about a proposed land sale and then, with a view to ensuring the proposal went through, asking the Club not to correct it.”