Caine v Advertiser & Times Ltd and Ors (No. 2)

The Defendants were a local newspaper publisher and its directors. The Claimant was a local businessman who had brought four claims alleging (in the main) libel and malicious falsehood in respect of articles published in the newspaper and statements on a Facebook Page (“the Page”).

The Page was not operated by any of the Defendants, but the Claimant contended that two of the Defendants were or became liable for its content due to their operation of their own Facebook pages, in particular because they had “Liked” the Page. The Claimant contended that, by “Liking” the Page, they became liable as publishers of defamatory content on it because they provided hyperlinks to that page on their own Facebook pages and continued to do so after he had sent “cease and desist” emails. The Defendants’ evidence was that, although they had “Liked” the Page as a whole, they had not personally authored any content on it, nor “Liked” or otherwise endorsed any of the posts containing the words complained of.

As set out in Caine v Advertiser and Times Ltd v Curry (No. 1) [2019] EWHC 39 (QB) [Bailii link in ‘Links’ section below], Claim 1, in respect of a newspaper article, had been stayed permanently due to late service of the claim form and particulars of claim, and two applications by the Claimant had been declared “totally without merit”. Claim 2 had arisen from statements on the Facebook Page and had been struck out and declared “totally without merit”, and the Claimant’s application to re-open his appeal had been declared “wholly without merit”. The Claimant had then issued Claim 3 in respect of materially the same Facebook statements as in Claim 2.

The Defendants applied inter alia to stay or strike out Claim 3 as an abuse of process and sought a finding that Claim 3 was also “totally or wholly without merit”. They also applied for an Extended Civil Restraint Order (“ECRO”) preventing the Claimant from issuing claims or making applications in the High Court or the County Court concerning any matter involving or relating to or touching upon or leading to the proceedings in Claims 1, 2 or 3 without first obtaining the permission of a judge identified in the order. By the time of the hearing, the Claimant had also issued Claim 4.

(1)  Whether Claim 3 should be stayed or struck out

(2)  Whether Claim 3 was “totally without merit”

(3)  Whether an Extended Civil Restraint Order should be made

1.  Claim 3 would be stayed or struck out. Claim 3 was in all material respects the same as Claim 2 and all the elements of cause of action estoppel were made out. In any event Claim 3 fell to be struck out as an abuse of process because it amounted to an attack on a final decision by a court of competent jurisdiction in Claim 2, further or alternatively because it was vexatious in light of the history and outcome of Claim 2 (paragraphs 43-58).

2.  Claim 3 was “totally without merit”. Among other reasons, by “Liking” the Facebook Page the Defendants had neither repeated nor endorsed the impugned content within the meaning of paragraph 77 of the decision of the European Court of Human Rights in Magyar Jeti Zrt v Hungary (Application No 11257/16, 4 December 2018) [hudoc link in ‘Links’ section below]: it would be stretching matters to suggest that the provision of a “Like” hyperlink to the Page, which contained many other items and which changed over time, constituted an “endorsement” of the matters complained of. The Defendants would also not have known that the impugned content was libellous, and there were no pleaded allegations of fact sufficient to amount to an arguable case that the “serious harm” requirement in section 1(1) of the Defamation Act 2013 was met whether directly or by way of inference (paragraphs 59-79).

3.  An Extended Civil Restraint Order would be made for a period of two years. As a Recorder sitting as a Deputy High Court Judge, the Judge had jurisdiction to make an ECRO (paragraphs 83-86). The Claimant had been successful on one argument in his appeal in Claim 1 (on the question of whether a challenge to late service of a claim form should be brought under CPR 11 or CPR 3.4), various judges had declined to certify that his applications for permission to appeal or appeals were themselves totally without merit, and the Claimant had enjoyed some successes and contended that he had received sympathetic or appreciative or encouraging remarks from judges. However the Claimant had also persistently issued claims or made applications which were “totally without merit” (including five such claims or applications within Claims 1-3 alone) and an ECRO was necessary to protect the court’s process from further abuse (paragraphs 87-103).

This judgment provides helpful clarification on the issue of potential liability for posting hyperlinks to allegedly defamatory content, and is the first case in this jurisdiction to consider the legal ramifications of “Liking” a Page on Facebook. In this case the Judge found that to make the Defendants liable in defamation or malicious falsehood for content on a Facebook Page authored by other people merely because they had “Liked” the Page as a whole (but had not “Liked” the specific posts on that Page which were complained of) would be, as the Defendants had argued, a click too far.

Caine v Advertiser and Times Ltd v Curry (No. 1) [2019] EWHC 39 (QB)
Magyar Jeti Zrt v Hungary (Application No 11257/16, 4 December 2018)