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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC B3 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Judge of the High Court)
| 1. CHRISTOPHER ANTHONY MCGRATH
2. MCG PRODUCTIONS LIMITED
|- and -
|1. PROFESSOR RICHARD DAWKINS
2. THE RICHARD DAWKINS FOUNDATION FOR REASON AND SCIENCE
3. AMAZON EU SARL (trading as Amazon.co.uk)
4. VAUGHAN JOHN JONES
William McCormick QC and Robert Dougans (solicitor advocate) (instructed by Bryan Cave) for the First and Second Defendants
Richard Munden (instructed by Field Fisher Waterhouse LLP) for the Third Defendant
Jonathan Price (instructed by Bryan Cave) for the Fourth Defendant
Hearing dates: 10 and 11 November 2011
Crown Copyright ©
(I say "purports" because C's case is that the book is not to be taken at face value but is intended as a satirical parody of various aspects of modern life such as conspiracy theories and deception. In view of this assertion it would not be appropriate at this stage of the proceedings for the Court to assume that C's own intellectual position is necessarily the same in all respects as the book's. He has pleaded that he is a Roman Catholic by upbringing, though non-practising, a believer in God, but not a "Creationist" at least in the narrow sense of that term; he accepts evolutionary biology as an indisputable fact, but is not certain as to the truth or otherwise of the account of creation in Genesis. See his Part 18 Response dated 25 July 2011.)
"I am one of those scientists who feel that it is no longer enough just to get on and do science. We have to devote a significant proportion of our time and resources to defending it from deliberate attack from organised ignorance" [in context a plain reference to Judaeo-Christian religion]. "We even have to go out on the attack ourselves for the sake of reason and sanity. But it must be a positive attack, for science and reason have so much to give…My Trustees and I have set up the Richard Dawkins Foundation for Reason and Science. It is actually two sister foundations of the same name, one legally constituted in Britain and the other legally incorporated in the United States."
a. C made no contributions to it.
b. Nor did any other supporters of C or opponents of Mr Jones.
c. It was thus not so much a debate as a conversation between friends, agreeing broadly with Mr Jones and advising him on how best to deal with C.
d. Perhaps as a result, when C came to select the passages from the Dawkins website on which he wished to sue, he did not confine himself to Mr Jones's words but also included those of others, a point that should be borne in mind when considering the extent of Mr Jones's personal liability for matter published on the Dawkins website.
a. Responsibility for Publication. Mr Jones is of course the author of most of the words complained of and does not dispute his responsibility for his words. The other Defendants, as website operators, do dispute their responsibility, Prof Dawkins and his UK Foundation on factual grounds, and Amazon on the basis of the statutory defences provided by s. 1 of the Defamation Act 1996 and reg. 19 Electronic Commerce Regulations 2002 (SI 2002/2013).
b. Defamatory Meaning. I am asked by each Defendant to rule on whether and to what extent the words complained of against them are capable of bearing the meanings attributed to them by the Particulars of Claim or any and if so what meaning defamatory of the Claimants or either of them.
c. Damage. Objection is taken on legal grounds to the pleaded claims for aggravated and exemplary damages, and more generally to the Claimants' apparent attempt to bring in a wider claim for commercial losses from a separate business venture.
d. Abuse of Process. In summary I am asked to rule on whether so much of the claim as may survive the above objections is "a game worth the candle" in comparison with the cost and court time likely to be expended in determining it.
(In addition the Defendants object to various aspects of the manner in which the case is pleaded; but since C is a litigant in person I would normally give him the opportunity to put that right by amendment, unless the flaw was a fatal and incurable one.)
- The UK company bears no responsibility for that website or its contents, because the .net website is run by the US company. The UK company has a separate website, richarddawkinsfoundation.org, which has no open-access forum of its own. The reason for this distinction is specifically to protect the assets of the UK company from defamation liability for third-party web contributions. (The US company is of course potentially liable in the UK for its publications read here, but as is well known UK libel judgments are in effect unenforceable against assets in the USA for constitutional reasons.) Also for that reason, the USA website has a hyperlink to the UK website, but (I was assured) not vice versa.
On this basis, the UK company has applied for summary judgment, contending that it is clear now that the claim against it has no real prospect of success. The burden is on the 2nd Defendant to satisfy me of this, and I should refuse the application if the evidence it puts before me is not convincing, and/or if I consider that there is a real prospect that (following pleading, disclosure and trial) the Claimants may ultimately succeed on this issue.
a. This case has been ruinous to him.
b. Mr Jones is a proven liar, and the fact that the other Defendants are willing to rely on his evidence casts doubt on their evidence too.
c. As a matter of fact, the .net website is run by the 1st and 2nd Defendants from England (for various reasons considered more fully below).
d. The 3rd Defendant Amazon has also failed to prove its case.
a. These matters are disputed in various respects and the stage to determine them has not yet been reached.
b. Mr Jones's credibility would be relevant, if the Court had to decide a disputed issue of fact which turned in whole or part on his evidence. As it happens, I do not think any such issue arises at this stage; but if it did, then on a summary judgment application I would have to assume that that dispute had been resolved in C's favour, so it would not yet be necessary to assess Mr Jones's credibility.
c. On the present issue of the 2nd Defendant's responsibility, Mr Jones has no relevant evidence to give. C's point is that the other Defendants' reliance on him diminishes their own credibility in respect of other matters unconnected with Mr Jones. I am not very impressed with this point, the connection between Mr Jones and the other Defendants being a tenuous one, and their reliance on his disputed evidence of fact being very limited. But in any event, as above stated, if I found myself having to consider their credibility at this stage, I would be bound to assume the disputed matter in C's favour.
It follows that I do not consider this question relevant to the present application.
a. that this is an artificial and unimportant distinction, and that in fact there is but one RDFRS charity, run by Professor Dawkins and his colleagues from England, and that responsibility for the websites is not fixed with one or the other company and can be switched from country to country to suit their convenience;
b. that one proof of this, or clue to the reality, is that the first posting on the website bears a UK time of 11.18 am (the time when the moderator approved it) – if this is an American website, why does it use UK time?
c. and that in her evidence Ms Kirby effectively admits liability by saying that the 2nd Defendant "wishes to ensure that it has prior sight of all material posted on the British Website to attempt to mitigate any such liability".
d. He also contests the 1st and 2nd Defendants' assertion that there is no hyperlink from the UK to the US website, but only the other way.
(In considering the applications, I remind myself that it is not, at this stage, for C to prove that his points are good; it is for the Defendants to prove that they are bound to fail, as being false or irrelevant, and that C has no real prospect of establishing at trial that the 1st and/or 2nd Defendants are answerable in law for any of the publications complained of.)
Put another way, in law the Dawkins movement, foundation or charity does not exist, and cannot act, except through one or both of its corporate vehicles (which in turn act through their human representatives); and it is incumbent on a claimant to establish that the particular vehicle he has sued is the one through which the tort was committed.
But again, this is to misunderstand the doctrine of corporate personality. The same person may, and quite commonly does, own and operate two companies, perhaps in two different jurisdictions. Nowadays he may manage them actively by email and internet from almost anywhere in the world. But they remain distinct bodies, and provided the tortious act is clearly attributable to Company A and not Company B, B will not be liable even if the man who committed that act on A's behalf (and may well be personally liable for it) is also the guiding mind of B.
(The 2nd Defendant has since this judgment was circulated in draft accepted that its evidence was wrong on this point, and the structure of the UK website has been altered to remove this or any similar link to the forum, which of course remains accessible via the US website.)
"In defamation proceedings a person has a defence if he shows that:
a. he was not the author, editor or publisher of the statement complained of;
b. he took reasonable care in relation to its publication; and
c. he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement".
The remainder of the section expands on this basic rule and the material provisions are considered below.
"Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where –
a. the service provider -
i. does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or
ii. upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access to the information,
b. the recipient of the service was not acting under the authority or the control of the service provider".
Again there are supplementary explanatory provisions.
a. Each item contains a "Report Abuse" button which permits the reader to report the item as "inappropriate". C says he did so, and Amazon accepts that he did on some occasions. But it turns out that this would have been of little effect because (unknown to readers) Amazon will not consider an item for removal on this ground unless 3 or more different users report it, which did not happen.
b. Pressing the "Report Abuse" button also gives one the option of reporting the item as defamatory by pressing a further link, which takes one to Amazon's Notice and Takedown Procedure.
c. The Notice and Takedown Procedure forms part of Amazon's general Conditions of Use and Sale, to which there is a link on every webpage. Condition 8 reads as follows:
Because Amazon.co.uk lists millions of products for sale on the website and hosts many thousands of comments, it is not possible for us to be aware of the contents of each product listed for sale or each comment or review that is displayed. Accordingly Amazon.co.uk operates on a "notice and takedown" basis. If you believe that any content on, or advertised for sale on, the website contains a defamatory statement, please notify us immediately by following our Notice and Procedure for Notifying of Defamatory Content. Once this procedure has been followed, Amazon.co.uk will make all reasonable endeavours to remove the defamatory content complained about within a reasonable time."
d. Clicking on the words underlined leads one to a pro forma document which one is invited to fill in, print off, sign and post to Amazon's legal department in Slough. That pro forma is in the form of a witness statement, but with content not dissimilar to a defamation protocol letter before action. The complainant is invited to provide:
i. name, address and occupation;
ii. details of the location of the defamatory words, including the web page address;
iii. the exact words complained of;
iv. the reason the words are defamatory;
v. the reasons they are untrue, and what the true position is.
e. Upon receipt, this would be considered by Amazon's lawyers and dealt with as they considered appropriate, no doubt often by way of taking down the offending item.
a. On 17 September 2010 he emailed Amazon's Technical Support address complaining about the 4th Defendant's postings, which he described as "abusive" and "slandering", referring in particular to a "vendetta" and to being called a "liar". He named the 4th Defendant and gave his email address, but did not give specific details of the location of the words complained of (though he did refer to "the thread under The Grand Design by Stephen Hawking"). He asked for Mr Jones's comments to be removed and his account to be considered for suspension or deletion.
Technical Support replied the next day saying that they were unable to take any action – they did not forward the email to the legal department or give C any help or advice as to how to pursue the matter. When on 20 September he asked them to pass it on to the appropriate department he received no reply, though this appears to be because he did not use the suggested address.
b. On 30 September 2010 C did make effective contact with the legal department (understandably copying his email to the CEO of Amazon in the USA and to other departments in the hope of ensuring a response). The material parts of this email are as follows:
The above review and the reviewer Mr V.J.Jones "vjohn82" are the subject of legal action by McG Productions through solicitors Tollers of Milton Keynes. We have already flagged this person's comments and reviews against the book The Attempted Murder of God: Hidden Science You Really Need to Know as inappropriate as they attack the author and company in a libellous and defamatory manner. To date Amazon.co.uk has done nothing about it. Please remove immediately all comments by this gentleman in relation to the book, the company and the author and submit for removal all Google cache entries. By allowing these comments on Amazon.co.uk, Amazon.co.uk also becomes implicated in the legal action."
This was promptly acknowledged the same day by Mr Collins, then head of legal, who then procured the removal of the particular review identified in C's email; it was taken down before midnight on 30 September 2010, and C so informed.
c. Also removed that night were 14 comments by the 4th Defendant (many but not all of those he had posted). This may have been done by the Customer Service Department independently of the legal department; on 30 September 2010 they emailed C saying that:
"…these comments have been removed from our database and will shortly disappear from the website. We do exercise some editorial control over our customer reviews and strive to block these kinds of reviews. Amazon.co.uk does not tolerate profane or spurious customer reviews. Our intention is to make the customer review forum a place for constructive commentary and feedback, so reviews that fall outside these guidelines are removed from the website."
d. On 7 November 2010 C emailed Mr Collins again, giving four specific links to reviews and demanding that they be permanently removed as being "subtle defamation" coloured by atheism. No response was sent nor was any action taken. Amazon has given no explanation of this. It appears however that none of these specific items is now sued on.
e. On 1 April 2011 C notified Amazon that he had issued proceedings. Following service, what comments by the 4th Defendant remained on the website were eventually removed on 11 and 12 July 2011.
a. the status of the defendant – does he qualify for protection at all?
b. the defendant's conduct and state of knowledge (and consequent responsibility) in relation to the particular publication complained of, prior to complaint;
c. the defendant's response upon being informed of the defamation – is it sufficient?
- does D provide an information society service which consists of the storage of information provided by a recipient of the service? And does the claim arise as a result of that storage?
S.1 of the 1996 Act sets a negative test:
- D must not be the author, editor or publisher of the statement; but a person will not be considered the author, editor or publisher if (to give the most applicable statutory example) he is only involved in operating or providing any system or service by means of which the statement is made available in electronic form.
So far as the Reg. 19 test is concerned, it is clear that the service Amazon provides to its users, of storing their reviews and comments for reading by others, falls within that definition.
On this issue, C objects:
a. that Amazon cannot be regarded as merely a passive or neutral medium for storing and distributing material provided by others. It is running the website for its own profit and has a clear commercial interest in encouraging lively debates between its customers on the product-related forums; and
b. that it does exercise a measure of editorial control over content, sufficient to deprive it of protection.
"a commercial publisher, that is, a person whose business is issuing material to the public or a section of the public, who issues material containing the statement in the course of that business".
So far as the concept of "issuing" is concerned, there is no doubt that the 1996 Act was intended to preserve the established distinction between publishers who originate books and other publications, and distributors and sellers who pass on to the public the books originating from the publishers; see s. 1(3)a. "Issuing" refers to the former process, not the latter one.
Amazon's primary business (for present purposes) is of course that of an online bookseller rather than a publisher. That is where its revenue comes from, not from the operation of the website (which is free to users). Ancillary to its business, a traditional bookseller might well issue free publications of its own such as catalogues and advertisements, but nobody would therefore describe its business as that of a publisher. In the same way, it follows that even though Amazon may well be the "publisher" of the website and its user-generated content, in the broad sense in which that term is used in defamation law, and may well do so in the course of its business (i.e. as a means to its primary purpose of retailing the products of others) it is nevertheless plainly not a "commercial" publisher within the definition of s.1(2).
A corporation can have actual knowledge only through a human representative, and given the vast size and diverse nature of Amazon's website there is no reason to suppose that anyone in Amazon was actually aware of these postings, let alone of their possible unlawfulness, prior to C's complaints. C does not put forward any case for such actual prior knowledge.
The use of the word "defamatory" (as opposed to Reg. 19's "unlawful") is significant here, because subject to the question of legal innuendo it would be apparent to Amazon upon a first reading whether the words were defamatory, i.e. injurious to reputation. The word "unlawful" in Reg. 19 has been held to import the further requirement that the defendant should also "know something of the strength or weakness of available defences"; see Bunt v. Tilley  1 WLR 1243, per Eady J at para. 72.
i. had actual knowledge of unlawful activity, and/or was made aware of facts or circumstances from which it would have been apparent that the postings were unlawful (as opposed to defamatory); and if so
ii. acted expeditiously to remove or disable access to them.
This provision of Reg. 19 is amplified by Reg. 22, which provides that in determining actual knowledge a court shall take into account all the circumstances, and in particular:
"whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)c" [which requires the provider to make available to the recipient rapid and effective contact details including its e-mail address]
"and the extent to which any notice includes-
i. the name and address of the sender of the notice;
ii. details of the location of the information in question; and
iii. details of the unlawful nature of the activity or information in question".
(C does not accept that Amazon's Notice and Takedown Procedure, detailed above, complies with Reg. 22; but assuming that to be correct, a breach of Reg. 6 would not of itself invalidate a Reg. 19 defence.)
Amazon's case is that in his communications with it C never even clearly specified the location of the postings of which he now complains, let alone set out facts and matters that would show them to be untrue or unfair. As to location, I am not persuaded of the merits of this point. Although C did not give URL addresses for each and every posting, he did specify Mr Jones's own username, and the topic (Scrooby's book) to which the objectionable statements related. Amazon's website includes the facility to look up all other reviews from any reviewer, and as stated it had no difficulty in immediately identifying and removing 14 of Mr Jones's comments about C.
It remains true, however, that not everything the 4th Defendant has said about C or his book is the subject of complaint. Quite rightly, C recognises others' rights to comment in strong terms on the literary and intellectual merits of his book and has tried to confine his complaints to other, less obviously legitimate areas. How was Amazon to perform that exercise of discrimination for him, if he did not specify the particular postings, or even parts of postings, of which he complained?
(I will however go on to consider in the alternative its case on the other grounds relied on.)
"A statement should be taken to be defamatory if it would tend to lower the claimant in the estimation of right-thinking members of society generally, or be likely substantially to affect a person adversely in the estimation of reasonable people generally or have a tendency to do so".
(The italicised words are not in the original definition, but have in effect been incorporated into it by the important decision of Tugendhat J in Thornton v. Telegraph Media Group  EWHC 141 QB which recognised the need for a threshold of seriousness as one of the elements of the tort.)
Another aspect of meaning which must be borne in mind in this case is the concept of "vulgar abuse", which is often relevant now in chatroom or forum internet cases. This is an application of the familiar principle that there is a distinction between the literal meaning of words and their natural and ordinary one; apparently serious words may in their context be so plainly outrageous that they are clearly not intended or understood literally, and may even become devoid of content and not defamatory at all.
Also relevant is the doctrine of "bane and antidote" by which replies and rebuttals can not merely act as mitigation but actually dilute or even eliminate the defamatory meaning, provided they are contained within the same publication.
a. While the website operator is prima facie liable for all the contents of the thread, individual contributors are of course liable only for their own words.
b. Those individual contributions must be read in the context of the earlier contributions, which may affect the meaning of the latest one.
c. As later contributors add further comments, the context of the thread as a whole will change. This will affect the meaning of the whole thread, for which the operator is liable; but an individual contributor cannot be held liable for a change in the meaning of his contribution, brought about by the later contributions of third parties which alter its context.
d. Strictly speaking, whenever a new contribution was added, the thread would become a new publication with a different meaning. In the case of a thread with more than a few entries, it would rapidly become impracticable for a judge, let alone a jury, to ascribe a separate defamatory meaning at each point, and then apply it to such meaning-dependent issues as justification.
e. The only practicable course here is to adopt the general approach of treating the final thread as a single publication for context and meaning purposes (albeit with several authors of distinct parts), while carefully avoiding the injustice of holding an individual contributor liable for any material changes in the meaning of his contribution brought about by later contributions from others.
- McG Publications is indeed a "publishing" company in the same way that my shed is a large scale production factory churning out hundreds of guitars every year.
- I think that it's really his own company.
- Don't take my word for it, do the investigation for yourself….Companies House is a useful resource too especially when you consider that McG Productions (and Publishers) are actually a residentially based business; i.e. it's a home setup and not what you would realistically call an enterprise. It's essentially an ego trip for Scrooby.
C replied at length in Comment 14, and added Comment 15 on a different point. They then exchanged Comments 16 and 17, and Mr Jones added 18, which includes the following words complained of:
- The problem I have is when a small publisher is set up for a specific purpose- creationist dogma.
- (1) McG Productions has a "publishing arm" run out of a residential address (despite your denial to the contrary because if you publish the business address on your website and Companies House, a cursory Google Earth search on the address reveals residential addresses….A publishing company that promotes 1 author in 9 months of operation is not a company that is destined to make money.
C replied at length in Comment 19, and the 4th Defendant in Comment 20, which includes the following words complained of:
-someone with a creationist mindset and also one so close minded that they restrict their search for god under the guise of one religion.
- I cannot stand those who try to piggy back off the success of others.
- I do not need to hide behind phony publishing companies operating from a back bedroom to try to give myself some credibility. Your attempt to piggy back on Hawking et al shows the desperation of your creed…
- Now hide behind your pseudonym Chris, hide behind your phony publishing company, hide in your back bedroom.
- I've proven that you are a fraud. (The surrounding words, not complained of, are of particular importance as context given the usual significance of the word "fraud". They are: "You FAKE reviews on other sites, you SET UP accounts to generate FAKE interest, you piggy-back on the success of others-it doesn't get any more INTELLECTUALLY DISHONEST than that".)
Their exchange continued in Comments 21, 22, 24, 25, 26, 27 and 28, (comments 23 and 29 were from other users). In Comment 25 Mr Jones did, very regrettably, name C's two young children (whose names he had found elsewhere on the web) saying that he felt sorry they would be subjected to their father's "bullsh*t for some time; not surprisingly this distressed C further.
Comment 30 contained the following words complained of:
- he has stooped to the level of contacting someone on facebook to ask about me and try to find out some personal information.
In Comment 31, C threatened the author of Comment 29 (LH) with defamation action. The 4th Defendant's Comment 32 included the following words complained of:
- You can cite defamation as much as you like but there is such a legal privilege as "fair comment".
In Comment 33, C set out his complaint to the police against Mr Jones for naming his children, and told him he would be contacted by solicitors. Comment 34 was from LH. In Comment 35, Mr Jones replied to Comment 33, including the following words complained of:
- Content is hostile? What, showing you up to be a fraud?
- …actual attempts to coerce information from other people about me…
He also added Comment 36; C replied with Comment 37. Comment 38 was from LH and 39 and 40 from Mr Jones again. At 41, he included the following words complained of (referring to a statement of C's in his letter to the police that MCG was protecting its employees and their children):
- Are you an employee then Chris? Looks like you are falsely representing your position here…
Perhaps surprisingly in view of the accusations of fakery, C chose to reply to this (at 42) with a long posting under his other alias of "Reviewer", purporting to be an independent reader of the book and urging Mr Jones "in all candour and kindness" not to post a single word more. At 43, a real third party urged them to stop "poking each other". At Comment 44 the 4th Defendant posted the last words complained of under this thread:
- …"Catholic Creationist takes Amazon critic to court for saying his book is BS"…
- it really is too much fun to show up creationist book writer wannabes who spread ridiculous science around the place
- A parody? The best a dying man can come up with is a "parody"…?
(This was on 12 September 2010.)
Comment 45 was from "Reviewer" (i.e. C again) saying that Mr Jones's "deceits and slanders will not look good in court" and accusing him of "hypocrisy, small-mindedness, ill-placed vanity, intellectual dishonesty" and "psychological and emotional disturbance". The thread continued with further contributions from Mr Jones (46, 49, 53, 55, 57), C or his aliases (47, 51, 59 and 60), and third parties (48, 50, 52, 54, 56, 58). The last two comments, on 13 September 2010, were effectively one very long 6-page posting by C, dealing mainly with the intellectual side of the debate and in particular the question of parody.
The original debaters responded at Comments 11 to 14.
At Comment 15, on 13 September 2010, the 4th Defendant entered the fray; the whole Comment is complained of.
- Scrooby has already been outed as a chancer. I can't believe he is still pimping his book out to all and sundry. I wrote a review on his book and received threats of police and legal action…ridiculous. The guy is a delusional crackpot.
At Comments 16, 17 and 18, the original debaters ignored this and continued their discussion. C joined in at Comment 19, ignoring Comment 15 and saying he would never mock people for their non-belief. Mr Jones responded to that at Comment 20 (17 September 2010) including the following words complained of:
- "I would never mock people for their non-belief". Liar. Simple as that. In fact Chris was so incensed with my critique of his book and for my Atheist belief that he complained to Thames Valley Police and threatened legal action….You're an embarrassment to the human race and you were found out.
The thread appears to have ended there.
- You set up a publishing company in your bedroom to peddle this pathetic piece of literature and then hide behind the pseudonym "Scrooby". Shall I tell you how desperate you are? You've piggybacked your book on the back of Stephen Hawking's work; a chronically disabled guy…
- Are you really that sick and depraved to have to resort to this sort of behaviour?
- I feel sorry for your kids who it seems will be subjected to your bullsh*t for some time to come.
C replied with Comments 4 and 5, threatening police action; Mr Jones in turn posted Comments 6 and 7. This was on September 11th; the thread then lay dormant until 9 July 2011 when Mr Jones added Comment 8, reporting that libel proceedings had been issued.
- The legal claim was completely unfounded, the police were not interested in him using his corporation as a soapbox for his insidious views and he has been shown up to be quite the charlatan.
The only other entry was his posting on 9 July 2011 that legal proceedings had been issued.
a. Misconduct in business
i. that the Claimants have no good professional standing in business and should not be traded with or engaged for their goods or services;
ii. that the business takes place in a bedroom and is therefore not a realistic business enterprise;
iii. that the 2nd Claimant was set up for the sole purpose of realising the failed writing and publishing ambitions of the 1st Claimant in a vanity publishing venture; therefore the content of the book can have no merit and should not be bought or read, and the Claimants lack professional integrity;
iv. that the Claimants set up a fraudulent publishing company operated by a fraudulent character;
v. that they are liars when they claim their business address is not a residential address;
vi. that the 2nd Claimant company is run by a man with the bad personal characteristics of the 1st Claimant (see below).
b. Personal dishonesty or misconduct of the 1st Claimant
i. that he is a narrow-minded religious fundamentalist;
ii. that he lied about believing that he had a terminal illness;
iii. that he engaged in an act of persuasion to make an unwilling person disclose information about him through force or threats;
iv. that he is immoral, cognitively deficient, and intends to deceive the public by hiding behind a pseudonym;
v. that he lied to the police about being an employee;
vi. that he is mentally unstable with lunatic notions;
vii. that he lies when he says he would not mock people for their non-belief;
viii. that he is a swindler with repellent religious beliefs;
ix. that he is a liar when he claims that his book was intended as a parody.
In relation to the Dawkins website, which is aimed at a specialist audience of people not merely interested in the science/religion debate but taking a hard line on one side, it is easy to see why C makes that case for a legal innuendo meaning, and it will be considered in detail below. But in relation to the Amazon website, whose readership even of reviews of specialist books is drawn from the general population (albeit readers who are likely to have some prior interest in the book under review or its author or subject) he has laid no groundwork for the proposition that some of those readers are possessed of any special knowledge or information which would lead them to understand the word "creationist" differently from the public at large, let alone in the strongly pejorative sense set out above. So in relation to the Amazon website, I am satisfied that there is no case for any true innuendo meaning of the kind sought to be relied on, and that it should be struck out.
(I should add that it is arguable that, even in general use, the word "creationist" has now developed a more specific natural and ordinary meaning than the literal one set out above, such as "a fundamentalist Christian who believes in the literal truth of the biblical account of creation and rejects Darwin's theory of natural selection"; but that again is a perfectly respectable and widely-held belief, and not one the holding of which would lower a person's reputation in the estimation of reasonable people or have a tendency to do so.)
- What are the highest or most serious meanings about the Claimants which the Amazon words (all written by Mr Jones) are capable of bearing?
- And in each case, is that capable of being a defamatory meaning?
For the reasons given above, this is best approached on a thread-by-thread basis rather than in the manner used in the Particulars of Claim.
a. that he has behaved unethically by trying to piggy-back off the success of others (Comment 20);
b. that he is an intellectual fraud because he fakes reviews, seeks to generate fake interest, piggy-backs off the success of others and is for these reasons intellectually dishonest (Comments 20, 35,);
c. that he has acted improperly by contacting one of Mr Jones's Facebook friends and seeking to coerce personal information about Mr Jones from them (Comments 30 and 35);
d. that he has falsely represented to the Police that he is an employee of the 2nd Claimant company when he is not (Comment 41, read in the context of Comment 37 in particular);
e.(i). that the scientific views in his book are ridiculous;
e.(ii). so is his claim to have written his book as a parody when he believed that he was dying (Comment 44).
(This topic is further considered below in relation to innuendoes on the Dawkins website.)
i. that it is a very small company;
ii. that it has no separate premises but is run from Mr McGrath's home;
iii. that it was set up by Mr McGrath for the sole purpose of giving credibility to his creationist book;
iv. that for this reason it is not destined to make any money;
v. and that also for this reason it is phony.
(See particularly Comments 13, 18, and 20.)
As to meaning v., of course the word "phony" is an opprobrious one, and generally capable of bearing a defamatory sting; but here I conclude that the principle of vulgar abuse applies, and that a reasonable reader would certainly recognise that Mr Jones was using it as shorthand for his previous observations about the company rather than as implying that it was phony in any different or stronger sense.
a. those of the words complained of from Thread C which do not give rise to the meanings set out at 62 a-e above should be struck out;
b. those meanings should be substituted for the meanings at present pleaded by the 1st Claimant, which insofar as they are not to the same effect I consider to be rhetorical and far-fetched and to go beyond any meaning a reasonable reader might draw from this Thread;
c. the 2nd Claimant has no case in respect of Thread C.
Thread D As to Comment 15, the words used are strong but their content is minimal; it is a clear example of vulgar abuse, especially in the context of this otherwise thoughtful and measured thread. (The word "pimping" in relation to the marketing of a book conveys no sexual or otherwise seriously derogatory connotation nowadays.)
Comment 20 however is capable of bearing the following defamatory meaning of the 1st Claimant only:
f. that he is a liar who falsely claims not to mock non-believers, when in fact he is so hostile to Mr Jones's atheist beliefs that for that reason he threatened him with police and legal action.
Thread G For the reasons above stated, the allegation in Comment 3 that the book has been published from a bedroom is not capable of being defamatory of either Claimant. The Comment does however bear the following meanings defamatory of the 1st Claimant:
g. that he has improperly sought to gain commercial advantage for himself by piggy-backing on the work of a disabled person; and
h. that this conduct can fairly be described as desperate, sick and depraved.
The remark about C's children cannot add anything but emphasis to the above stings. In that sense it is vulgar abuse, but it remains a proper subject of complaint as part of the passage complained of and as being relevant to damage.
(I should add, since it is a point of some importance to C, that although he complained of the words which referred to the well-known fact that Prof. Hawking suffers from a very serious physical disability, he did not refer to that disability in his pleaded meaning, because he respects the fact that Prof. Hawking does not seek to take any advantage of his disability. I understand this; but the defamatory implication here, which I consider it plain that right-thinking people would or might share, is that it is particularly wrong for others to take improper advantage of the work of a disabled person.)
Thread H A special feature of this thread is that, unlike the others, it consists solely of exchanges between Mr Jones and one other contributor, C.J. Cook, who appears to be familiar with the dispute from other threads ; it does not contain as much contextual material as the others, and therefore its words are much more easily taken at face value by a reader.
Comment 5 is plainly capable of bearing a defamatory meaning about the 1st Claimant, as follows:
i. that he is a charlatan because he makes unfounded threats of legal action.
(This was in fact partially corrected by the 4th Defendant himself in July 2011, when he added Comment 6 – "You might be interested to know that a legal claim has been issued".)
It is also capable of bearing the following meaning about both Claimants: that the 2nd Claimant is a vehicle used by the 1st Claimant to put forward insidious views. But any defamatory element in this meaning would only be conveyed by the word "insidious" which in the context of this thread is no more than a shorthand for "religious views of which I disapprove" and is plainly vulgar abuse.
The same consequences must follow as set out at  above, except that in relation to Thread H the company will also have a claim.
- Dare to criticise a creationist? Be prepared to be sued.
- The Grand Design by Stephen Hawking and Leonard Mlodinow…is being sold on Amazon.
- One such person decided, rather than actually read the book, to instead pimp their own book called "The Attempted Murder of God: Hidden Science You really Need to Know" by author Scrooby…clearly a pseudonym.
-Anyway, I'm a Historian by degree and tend to look at books in a different way. For instance I will not only read the book but I'll research the author, the publisher, the sources, and look for behavioural patterns to ascertain the writer's intentions, motives and bias. I did exactly the same for Scrooby that I do for any author/publisher… the most pertinent facts are: …
2. The McG Publishing company and McG Publications are run out of a bedroom somewhere…
3. The company was set up to bring out the author Scrooby who is in fact Chris McGrath…
4. Chris McGrath has claimed that he has scientific proof for the evidence of god, however this does not appear in the book. There are also zero scientific sources in the book from any peer reviewed scientist or indeed any scientist for that matter.
5. Indeed Chris McGrath is not a scientist … he is in fact a failed film student from Bournemouth University…
- Anyway, this guy has now claimed he is informing the police and taking legal action for my criticisms of his work…
- I've never heard of legal action being taken where you take apart a creationist's case.
- TAGGED: CREATIONISM, DISHONESTY, FLEAS, IRRATIONALITY, LAW, STEPHEN HAWKING, WINGNUTS. (These tag-words appear alongside the article and can be used to link it to other articles on the website similarly tagged. The tags were apparently selected by Mr Jones from a list available on the website.)
Comment 1- The police have long experience of receiving letters or whatever from one-man-band religious nutters. The guy you're dealing with doesn't even have any connections with other nutters. When we (I) was hit by the nutters we had good reason to believe that the shooting match was organised by at least two well known creationist organisations (one with an annual budget of millions); the front man also did a runner afterwards (to Kenya).
Comment 2- I forgot to add, please continue to kick Scooby in the goolies and that is how he is treating you. [Only the italicised words are complained of.]
Comment 11- McGrath appears to have a wife and family to support out of the proceeds of sale of his one and only book. That's the real measure of his desperation. He's set up a business and is screwing up at the first stage… Better off on the dole. [Just sit back and] let him hang himself.
Comment 15- Small point – a company is a "person" in law. It has human rights. It can sue for libel. But this clown won't get anywhere.
Comment 17- The usual wingnut drivel.
Comment 20- The fundamentalist who knows he's right. You could for a few pounds get details of his company's assets and directors from Companies House….Try to do this in a way that makes HIM do all the work. Don't give an unnecessary detail or justification. Let him write and ask again. Be mimalist [sic] in any letters to any third parties he tries to use and keep a folder of any letters.
Comment 27- Any fool can set up a publishing company and a pretty website and put a sample chapter on line. The danger is that creationism's army of useful idiots will be impressed by the free sample chapters and question no more (if they ever did). But then they're the sort of people who probably never get to the end of a book anyway because it hurts their brains.
Comment 28- A try-on by a disreputable idiot.
Comment 33 [From the 4th Defendant]- Glad I'm not the only one who thinks he's a chancer.
Comment 40- This is a classic example of creationist thinking. CMcG …sets up a commercial organisation to make money and spread his confused ideas, also giving him apparent status as managing director…The big money creationists of like mind make a similar pretense of independense by reviewing each other's work. The posing as managing director of a non-entity company is similar. The big money outfits set up creationist "educational institutions".
The Claimants are:
i. liars and swindlers of ill-repute;
ii. exhibiting cognitive deficiencies;
iii. morally corrupt Creationist writers and publishers;
iv. both deserving of the utmost ridicule;
v. (the 1st Claimant only) deserving of physical violence to his genital area;
vi. people who will sue you if criticised;
vii. despicable self-publicists with cognitive deficiency;
viii. not a realistic business but a business which takes place in a bedroom and should not be traded with;
ix. not intellectually credible, all the science in their book being from their own imagination;
x. (the 1st Claimant is) a failed film student, so failure attends all his enterprises and his business is not one with which to deal;
xi. anti-Atheist bigots, obstinately and intolerantly devoted to their own opinions and prejudices, and exhibiting intolerance and animosity towards atheists.
(Meanings vi-xi are described in the alternative as innuendoes, but this must refer to "false" innuendo because a case on "legal or true" innuendo is pleaded separately.)
The 1st Claimant
j. that he had abused his right to review the Hawking book, by using the review to promote his own book;
k. that he had falsely claimed to have scientific proof in his book for the existence of God, when in fact no scientific sources are relied on;
l. that he had failed his university course in film studies; I reject unhesitatingly the 1st, 2nd and 4th Defendants' contention that it is not capable of being defamatory to say that someone has failed his degree.
(All the above are derived principally from the 4th Defendant's originating review.)
m. that he was failing financially in business (Comment 11, not the 4th Defendant's);
n. that he had engaged in a pretence by reviewing his own work (Comment 40, not the 4th Defendant's).
The 2nd Claimant
o. that it was failing financially in business (Comment 11, not the 4th Defendant's).
- "nutter" (Comment 1);
- "please continue to kick him in the goolies [as that is how he is treating you]" (Comment 1);
- "Let him hang himself" (Comment 11) plainly in context not literally intended;
- "clown" (Comment 15);
- "the usual wingnut drivel" (Comment 17);
- "fool…idiots…hurts their brains" (Comment 27);
- "a try-on by a disreputable idiot" (Comment 28);
- "a chancer" (Comment 33).
a. Prof. Dawkins has adopted a quotation from W.B. Yeats about his imitators, "But was there ever dog that praised his fleas?" to belittle a theologian who wrote a book with the name "Dawkins" in the title, and his followers are well aware of this as a pejorative epithet for his critics;
b. the Dawkins website contains many harsh criticisms of creationists as "superstitious", "drooling morons", "the lunatic fringe of religious people" and so forth, and again its readers are familiar with this usage.
- "the Claimants are not merely as inhuman and repugnant as fleas, they are in fact fleas;
- they possess clear mental instability and intellectual feeblemindedness;
- they are lying fundamentalist creationists lacking moral and ethical integrity".
I do not of course mean to suggest by this analogy that the followers of Prof. Dawkins are to be compared with racists. But C does, broadly speaking, take that line. It is his case that the typical reader of the Dawkins website is so prejudiced against religious believers that, upon hearing that a person is a believer or a creationist, he will automatically assume that that person has the negative characteristics stated in the innuendo meaning set out at  above. This may not be true; but even if it is true, it is not enough to establish a legal innuendo meaning.
a. the contention that the 2nd Claimant company is entitled to aggravated damages;
b. the contention that both Claimants are entitled to exemplary damages.
a. oppressive, arbitrary or unconstitutional action by servants of the government;
b. the deliberate commission of a tort with the intention of gaining some advantage which will outweigh the compensation otherwise payable.
(See Duncan and Neill, supra, at 23.33.)
Much of C's pleading and argument on this issue goes to the alleged malice of the 1st, 2nd and 4th Defendants (he accepts that Amazon's moral guilt is less); but malice alone, absent one of those elements, only gives rise to aggravated damages, not exemplary.
I do see plenty of room, in a world where government delegates many of its established public functions to charities (in the spheres of housing or health-care for example), for an arguable exemplary claim against a charity if it was acting as an agent of government in committing the act complained of. That is because the purpose of this head is to provide a deterrent sanction against the abuse of public power, especially when that abuse is backed by the public purse and the individuals responsible are hard to call to account.
But there is no sense at all in which the 1st and 2nd Defendants (let alone the 3rd or 4th) are exercising public power when they criticise religion or advocate atheism. A charity of this sort is essentially a private vehicle by which its supporters can educate and inform the public about their standpoint, which very often, and perhaps particularly in this case, will be one which bears no relation to any governmental policy or interest. Such a charity has no power except the power of its ideas. I therefore conclude that it is plain and obvious that head (a) has no application to this case.
a. that the anticipated advantage in question needs to be derived from the commission of the particular tort, not simply from a general course of business (see the authorities cited by Duncan and Neill at 23.35, note 7); and
b. that the defendant must both know or be reckless that his words are tortious (i.e. not merely defamatory but unlawful) and consciously decide to go ahead having calculated that the chance of advantage outweighs the chance of penalty.
Nowhere in his pleadings or arguments does C put forward a credible case, let alone any evidence, that either of these requirements is fulfilled in the case of any of the Defendants. It is difficult to envisage how the two website campaigns in question, criticising so little-known a target to so small an audience, could materially advance the cause of atheism or damage that of religion; and (unusually) the question of potential libel liability is actually discussed extensively in several of the threads complained of, including the first Dawkins website publication, but always from the standpoint that the publications are justified in the legal and/or popular senses rather than that "we know it's wrong but we can get away with it (and it's worth it even if we don't)".
For these reasons, I conclude that it is already clear that these claims for exemplary damages are misconceived and bound to fail, and that they should therefore be struck out.
a. the limited extent of publication (in the case of the Dawkins website but not the Amazon one);
b. the limited defamatory meanings (in the light of my rulings on that issue above);
c. the limited margin between the truth about the Claimants' activities, as admitted by them, and the defamatory stings of which they may properly complain;
d. the mitigating/extinguishing effect of the Claimants' own publications and responses on Amazon (but not on Dawkins);
e. in the light of all the above, the limited remedies which the Claimants may expect by contrast with the considerable anticipated costs of trial.
The Claimants of course maintain that there are triable issues on all of these points, and that they have a real and substantial case both for worthwhile damages and for an injunction restraining all the Defendants, but in particular the 1st, 2nd and 4th, from repeating these or similar allegations in the future.
C has put forward evidence that the world readership of the .net site as a whole is of the order of 200,000; while of course the number who read it in this country, and the number of those who read the particular discussion strand complained of, are likely to be much less, this casts doubt on the 1st and 2nd Defendant's figures. He also points out that in relation to any website publication of this sort one must allow for a considerable degree of foreseeable republication by users of the original website.
It follows that in respect of each website I should approach abuse of process on the basis that the number of readers of the words complained of is certainly not so small that the claim should be dismissed on that ground alone, and indeed may be a good deal larger than the Defendants contend. However, the points considered below are of similar force whether the number of readers is small or relatively large.
i. C did seek to promote sales of his own book by means of false reviews, purporting to be the favourable reaction of real independent readers when in fact he had written them himself.
ii. He did seek to take advantage of the reputation of Prof Hawking (a disabled man) to promote his own book, by inserting a puff for his book into the Amazon site for the Hawking book under the false guise of a review of that book.
iii. He did participate in the online Amazon debates using false identities purporting to be real people agreeing with and defending him, when in fact they were just his aliases.
iv. The book is published by his own company, which is a very small business that has only published his book and has no independent premises of its own.
v. The book contains no scientific source references to back up its purported scientific contentions.(This is admitted by C at para. 72.2 of his submission dated 8 November 2011, in which he refers approvingly to his own Yahoo review of his book, again pretending to be independent.)
i. The respective Defendants answerable for that meaning are overwhelmingly likely to succeed in defending it on the basis of justification and/or fair comment/honest opinion.
(In reaching this conclusion so far as comment/opinion is concerned I bear in mind the live issue of malice, particularly against the 4th Defendant, but also the rule that in this context "malice" refers only to the putting forward of an opinion which one does not genuinely hold; see Cheng v Paul  EMLR 31. Given that Mr Jones is clearly a person who holds strong opinions of his own on the matters in question, and that in the light of the matters at  above there is a strong factual substratum on which his comments/opinions could be based, proving his malice in this strict sense would be a very challenging exercise. Although C has asserted his insincerity he has not indicated any facts or matters which point clearly towards it, as opposed to malice in the wider and more popular sense of hostility or spite.)
In addition, s. 5 of the Defamation Act 1952 would be likely to operate to improve the Defendants' prospects of success on liability even in respect of the remaining allegations of fact not directly covered by the admissions.
ii. If, contrary to (i) above, such defences should not succeed completely in respect of one or more of those allegations, the effect of the admitted facts and matters at  above would be to reduce the damages recoverable for them, probably to a very low or even nominal level.
"At all events, the publication of the "right of reply" is a relevant factor to take into account when assessing the application based on abuse of process."
In this case, we are not dealing merely with a reply by a claimant to allegations previously published by a defendant. As set out at  –  above, C actually began Amazon Thread C with his spurious review of the Hawking book, inserted himself and his own book into Thread D, and attacked the 4th Defendant on Thread G before the latter had played any part in it. In each of these cases, but particularly Thread C, the Claimants participated fully in the debate on that thread and had full opportunity (which they frequently took) to answer the criticisms made by the 4th Defendant and others. Only in Thread H did C play no part. This participation by C will not only have a substantial effect on any jury's assessment of the actual defamatory meaning of the words complained of (particularly where the 3rd Defendant's liability is concerned), but it will certainly operate as a very substantial mitigation. It raises an obvious question: what real and substantial need does C have for a vindication through the courts, when he has already put his case to the original audience at the time of the original publication?
The position is by no means so clear where the 2nd and 4th Defendants are concerned. The 4th Defendant's intellectual and personal hostility to the Claimants (not the same thing as malice vitiating comment/opinion) is apparent from his postings; and the .net forum (for which the 2nd Defendant may well have been liable and might be again) is a natural home for attacks on those holding C's views, and is not fully moderated so as to exclude defamatory comments.
On the Amazon website:
c. that the 1st Claimant acted improperly by contacting one of the 4th Defendant's Facebook friends and seeking to coerce personal information about the 4th Defendant from them;
d. that he falsely claimed to the police that he was an employee of the 2nd Claimant when he was not;
e (ii). that his claim to have written the book as a parody when he was dying is ridiculous;
f. that he is a liar who falsely claims not to mock non-believers, when in fact he is so hostile to the 4th Defendant's atheist views that for that reason he threatened him with police and legal action;
i. that he is a charlatan because he makes unfounded threats of legal action
On the Dawkins website:
l. that he had failed his university course in film studies.
The 4th Defendant has not offered any undertakings in respect of the above allegations published by him on Amazon (for which the 3rd Defendant is not liable). Further, it appears likely, given his apparent hostility to the 1st Claimant, and the fact that he has recently made further internet publications concerning this case, that he wishes to continue his campaign of criticism of the 1st Claimant (as may be his right).
In these circumstances, unless such undertakings are offered, his application for summary judgment will be allowed only in part, and the action will continue against him alone for the purpose of injunctive relief against republication of those allegations. [At the handing-down of judgment the 4th Defendant indicated that he was reconsidering the question of undertakings and I have granted time for him and C to consider this further.]
a. The 2nd Claimant company has no claim against any of the Defendants worth pursuing, and its claims should therefore all be struck out.
b. The 1st Claimant's claim against the 3rd Defendant (already dismissed by virtue of the reg.19 defence) should also be struck out as an abuse of process. In this decision I give particular weight to the 1st Claimant's admissions and to his own active participation in most of the Amazon publications.
c. For the same reasons, the 1st Claimant's claim against the 4th Defendant for damages in respect of his Amazon publications should be struck out.
d. In respect of the Dawkins website publications, there is no credible claim for damages, proportionate to the costs of the action, against any of the 1st, 2nd and 4th Defendants, particularly in the light of my rulings on meaning and the 1st Claimant's admissions. The only surviving allegation is a relatively trivial one by comparison with what the Defendants will be able to prove against the Claimants.
e. The 1st Claimant has no credible claim against the 1st or 2nd Defendant for injunctive relief either, and the claim against them should therefore be struck out (upon the limited undertaking by the 2nd Defendant referred to above).
f. As indicated, the action will continue against the 4th Defendant for the purpose of injunctive relief, to the extent indicated above, [subject to satisfactory undertakings being offered], the balance of the claim against him being struck out.