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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 2099 (QB)
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QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy Judge of the Queen's Bench Division)
| WARRICK FENTIMAN
|- and -
The Defendant did not appear and was not represented.
Hearing date: 22 July 2019
Crown Copyright ©
RICHARD SPEARMAN Q.C.:
The allegations which are now complained of in the present claim
The illegal and cowardly cyberattack on whistleblower site deproxfraud.info and on the personal Facebook and LinkedIn pages of Richard Marsh have only served to draw the attention of the NHS, Public Health England and the Health and Safety Executive to the grubby and unethical activities of Rick Fentiman and his minions at Hygiene Solutions Ltd.
Deproxfraud.info is back! The site was fully restored this morning, following last week's hacker attack by Hygiene Solutions Ltd.
Legal action taken re cyber-attack
Legal action is being taken against the directors of Hygiene Solutions
Ltd in connection with flagrant breaches of the Computer Misuse Act
1990. See: https://www.legislation.gov.uk/ukpga/1990/18/crossheading/ compute
Mr Marsh's pleaded Defence
The evidence of the witnesses
"… 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 …"
"Impact of the Hacking Allegations on Myself
12. As explained above, I had confidence in SHS's products and, accordingly, could simply dismiss these allegations but the hacking allegations were different as they concerned the Claimant's ethics as an individual. I did seriously question whether the hacking allegations were true and the Claimant had done something unethical to remove the other allegations that the Defendant had put on the internet.
13. It was credible, as far as I was concerned, that the Claimant could have carried out the cyber-attack - he had a motive given the amount of pressure he had been under, and given his commitment to removing the allegations. To add to this, I later became aware that the Defendant claimed to have evidence that the cyber-attack was carried out in Kings Lynn, which is where SHS and the Claimant is based. To my mind, this strengthened the Defendant's position.
14. I was particularly concerned about these allegations because hacking is serious and if somebody is found guilty of hacking in this way (i.e. as a corporate cover-up) then it could have hit the headlines. I knew that if these allegations were true, it could be the end of SHS. I believed a lot of people would have seen these hacking allegations, either by reading them themselves or having heard them passed on by word of mouth, and I needed to think seriously about my own career.
15. Shortly after the hacking allegations were made by the Defendant, I was in a room with the Claimant and his brother, Mark Fentiman. We discussed the allegations and the Claimant, and Mark, assured me that these allegations were also false. I had no way of proving whether that was correct, but I decided to stand by the Claimant and the company.
Impact of the Hacking Allegations on others in SHS
16. I am part of the management team and other employees at SHS knew that I was standing by the Claimant. I do not recall any specific conversations with other employees about the hacking allegations but I did pick up on murmuring throughout the business after the hacking allegations had been made by the Defendant. I remember feeling that the dynamics of the team had changed and there was an ill-ease within the workplace.
17. SHS is an SME and not a listed company. The Claimant is the figurehead and CEO of the business and, therefore, without him the future of the business was seriously questionable as far as I was concerned. I was worried about my job – I would be out of work if SHS did not survive. The hacking allegations, therefore, placed a lot of strain on the Claimant, and on SHS's management team (including me).
Impact of the Hacking Allegations on the PBCC Community
18. The Claimant was well respected within the PBCC [i.e. Plymouth Brethren Christian Chrurch] community. Trust (including personal credibility and integrity) is a major currency within the PBCC, and that trust can be quickly eroded.
19. The allegations, both concerning SHS and the hacking, spread throughout the local congregation, of which the Claimant and I are both part of. I know that some of the PBCC community understood the pressure the Claimant was under because of the various allegations that the Defendant had been making about SHS, and I believe that some of them are likely to have thought (as I did, initially at least) that the twig had finally snapped. By this, I mean that they are likely to have thought that the Claimant had taken down the Defendant's website having tried and failed to get the allegations on the website taken down by other lawful means.
Impact of the Hacking Allegations on Clients, Potential Clients and Industry Contacts
20. Through my role of Head of Sales at SHS, I was aware that our clients, potential clients and contacts within the industry ("Contacts") were aware of both the allegations levied at SHS and the hacking allegations. For example, the Sales Manager of our main competitor, Bioquell Plc, contacted me to discuss the allegations. In addition, I knew that many people were watching the Defendant's every move and some would even "like" the Defendant's posts. I recall, prior to any meetings with clients and prospects, having to prepare to be questioned about the allegations by SHS's Contacts as the majority would mention them.
21. Our Contacts were, for the most part, able to understand and disregard the allegations which the Defendant levied at SHS and its products. For example, we had senior figures in the industry that critically analysed the allegations and discredited them. In addition, for those who were unable to understand the allegations, the SHS team were able to respond defending the product with technical and scientific arguments as we had faith in the product.
22. The hacking allegations were different – I (and the SHS team) had no way of disproving the hacking allegations – unlike the allegations about the SHS product which I could answer with scientific testing and technical explanations. I could not rebut the hacking allegations with technical and scientific arguments like I could the other allegations, and it came down to the Claimant's word against the Defendant's word.
23. I know that the Defendant's allegations were also spread by word of mouth. For example, I attended an appointment where I met the Head of Sterile Services for Brighton and Sussex Hospital who had heard the allegations and explained that they had been brought up at the region's Decontamination Committee Meeting. I was told that SHS could not be trusted so the Trust could not do business with SHS. The same happened in Sheffield, the Sheffield Trust became very cagey. I do not think these were isolated incidents."
Issue 1: Meaning
"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  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  2 AC 65, 70; Gillick v Brook Advisory Centres  EWCA Civ 1263 ; Charman v Orion Publishing Co Ltd  EWHC 2187 (QB) -; Jeynes v News Magazines Ltd & Anor  EWCA Civ 130 ; Doyle v Smith  EWHC 2935 -; Lord McAlpine of West Green v Bercow  EWHC 1342 (QB) ; Simpson v MGN Ltd  EMLR 26 ; Bukovsky v Crown Prosecution Service  EWCA 1529  1 WLR 18; Brown v Bower  4 WLR 197 - and Sube v News Group Newspapers Ltd  EWHC 1234 (QB) :
(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 non-defamatory 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 v Bower :
They come from the decision of Brooke LJ in Chase v News Group Newspapers Ltd  EMLR 11  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" ."
" 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.
 In Monroe v Hopkins  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."
 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 pre-eminently one in which the reader reads and passes on.
 That essential message was repeated in Monir v Wood  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." Facebook is similar. People scroll through it quickly. They do not pause and reflect. They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting. Some observations made by Nicklin J are telling. Again, at para 90 he said:
"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."
 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."
Application to the publications complained of
Issue 2: Did the words complained of cause serious harm to Mr Fentiman's reputation?
"… 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". The reference to a situation where the statement "has caused" serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated …
… Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law's traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement."
"46 …. [F]irst … "Serious" is an ordinary word in common usage. Section 1 requires the claimant to prove as a fact, on the balance of probabilities, that the statement complained of has caused or will probably cause serious harm to the claimant's reputation …
47. Secondly, it is open to the claimant to call evidence in support of his case on serious harm and it is open to the defendant to call evidence to demonstrate that no serious harm has occurred or is likely to do so. However, a Court determining the issue of serious harm is, as in all cases, entitled to draw inferences based on the admitted evidence …
48. Thirdly, there are obvious difficulties in getting witnesses to say that they read the words and thought badly of the claimant, compare Ames v The Spamhouse Project  EWHC 127 (QB) at . This is because the claimant will have an understandable desire not to spread the contents of the article complained of by asking persons if they have read it and what they think of the claimant, and because persons who think badly of the claimant are not likely to co-operate in providing evidence …
Fifthly, as Bingham LJ stated in Slipper v BBC  QB 283 at 300, the law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity "to percolate through underground channels and contaminate hidden springs" through what has sometimes been called "the grapevine effect" …"
"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."
"72. ….serious reputational harm is capable of being proved by a process of inference from the seriousness of the defamatory meaning … there is no reason in libel cases for precluding or restricting the drawing of an inference of serious reputational harm derived from an (objective) appraisal of the seriousness of the imputation to be gathered from the words used.
73. … The seriousness of the reputational harm is … evaluated having regard to the seriousness of the imputation conveyed by the words used: coupled, where necessary or appropriate, with the context in which the words are used (for example, in a newspaper article or widely accessed blog).
79. There may, for instance, be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could, for instance, perhaps be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited, that there has been no grapevine percolation and that there is firm evidence that no one thought any the less of the claimant by reason of the 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  1 QB 283, 300 per Bingham LJ). In Sloutsker v Romanova   EWHC 545 (QB);  2 Costs LR 321, Warby J said at :
"… 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."
Application to the facts
(1) The allegations which formed the subject of the First Post, the Second Post, and the Third Post were all grave, and had an inherent tendency to cause serious harm. In substance, the First and Second Posts alleged that Mr Fentiman was an illegal cyber-attacker and hacker, and the Third Post escalated matters by alleging that his illegal activities had become the subject of prosecution for criminal offences.
(2) The number of people to whom each of the First Post, the Second Post, and the Third Post were published was substantial. Even on Mr Marsh's pleaded case, taking matters up to April 2018 in each case, but also discounting the possibility of a substantial number of repeat viewings by the same people, the Second Post was published to approximately 184 + 46 = 230 persons, and the Third Post was published to approximately 188 persons. Further, in accordance with Mr Marsh's pleaded case, there were, perhaps, about 100 views of the First Post. Findings of serious harm were made on lower figures in both of the Dhir and Doyle cases.
(3) Substantial further "grapevine" dissemination is made out on the evidence (including Mr Marsh's pleaded case that the 46 engagements relating to the publication of the Second Post on Twitter resulted in 3 re-tweets). Mr Lister's evidence is particularly telling in this regard, because he explains, and I accept, that the hacking allegations (which formed the subject of all 3 Posts) spread through the PBCC community as well as the community of SHS's customers. I would have been prepared to draw an inference of substantial "grapevine" dissemination in respect of each of the Posts even in the absence of that evidence. Such percolation typically results from allegations like these on social media.
(4) The evidence shows that, far from people not believing the allegations, they were so pernicious that even those close to Mr Fentiman who trusted and admired him were deeply troubled by them, and seriously concerned that they might be true. This was partly for one of the very reasons pleaded by Mr Marsh, namely that Mr Fentiman had a motive for wanting to shut down platforms that "were damning him and his business" (although Mr Marsh has no case that Mr Fentiman was, in fact, guilty of the wrongdoing alleged in the Posts, or any material wrongdoing).
Issue 3: the measure of damages
" The general principles were reviewed and re-stated by the Court of Appeal in John v MGN Ltd  QB 586… Sir Thomas Bingham MR summarised the key principles at pages 607-608 in the following words:
"The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must  compensate him for the damage to his reputation;  vindicate his good name; and  take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is [a] the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. [b] The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. [c] A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that [d] compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as "he" all this of course applies to women just as much as men."
 I have added the numbering in this passage, which identifies the three distinct functions performed by an award of damages for libel. I have added the lettering also to identify, for ease of reference, the factors listed by Sir Thomas Bingham. Some additional points may be made which are relevant in this case:
(1) The initial measure of damages is the amount that would restore the claimant to the position he would have enjoyed had he not been defamed: Steel and Morris v United Kingdom (2004) 41 EHRR , .
(2) The existence and scale of any harm to reputation may be established by evidence or inferred. Often, the process is one of inference, but evidence that tends to show that as a matter of fact a person was shunned, avoided, or taunted will be relevant. So may evidence that a person was treated as well or better by others after the libel than before it.
(3) The impact of a libel on a person's reputation can be affected by:
(a) Their role in society. The libel of Esther Rantzen [Rantzen v Mirror Group Newspapers (1986) Ltd and Others  QB 670] was more damaging because she was a prominent child protection campaigner.
(b) The extent to which the publisher(s) of the defamatory imputation are authoritative and credible. The person making the allegations may be someone apparently well-placed to know the facts, or they may appear to be an unreliable source.
(c) The identities of the publishees. Publication of a libel to family, friends or work colleagues may be more harmful and hurtful than if it is circulated amongst strangers. On the other hand, those close to a claimant may have knowledge or viewpoints that make them less likely to believe what is alleged.
(d) The propensity of defamatory statements to percolate through underground channels and contaminate hidden springs, a problem made worse by the internet and social networking sites, particularly for claimants in the public eye: C v MGN Ltd (reported with Cairns v Modi at  1 WLR 1051) .
(4) It is often said that damages may be aggravated if the defendant acts maliciously. The harm for which compensation would be due in that event is injury to feelings.
(5) A person who has been libelled is compensated only for injury to the reputation they actually had at the time of publication. If it is shown that the person already had a bad reputation in the relevant sector of their life, that will reduce the harm, and therefore moderate any damages. But it is not permissible to seek, in mitigation of damages, to prove specific acts of misconduct by the claimant, or rumours or reports to the effect that he has done the things alleged in the libel complained of: Scott v Sampson (1882) QBD 491, on which I will expand a little. Attempts to achieve this may aggravate damages, in line with factor (d) in Sir Thomas Bingham's list.
(6) Factors other than bad reputation that may moderate or mitigate damages, on some of which I will also elaborate below, include the following:
(a) "Directly relevant background context" within the meaning of Burstein v Times Newspapers Ltd  1 WLR 579 and subsequent authorities. This may qualify the rules at (5) above.
(b) Publications by others to the same effect as the libel complained of if (but only if) the claimants have sued over these in another defamation claim, or if it is necessary to consider them in order to isolate the damage caused by the publication complained of.
(c) An offer of amends pursuant to the Defamation Act 1996.
(d) A reasoned judgment, though the impact of this will vary according to the facts and nature of the case.
(7) In arriving at a figure it is proper to have regard to (a) Jury awards approved by the Court of Appeal: Rantzen 694, John, 612; (b) the scale of damages awarded in personal injury actions: John, 615; (c) previous awards by a judge sitting without a jury: see John 608.
(8) Any award needs to be no more than is justified by the legitimate aim of protecting reputation, necessary in a democratic society in pursuit of that aim, and proportionate to that need: Rantzen... This limit is nowadays statutory, via the Human Rights Act 1998."
Mr Fentiman's case
(1) The seriousness of the allegations, going to a core aspect of Mr Fentiman's reputation (factor [a] in John).
(2) The fact that Mr Marsh asserted the truth of the libels and has refused to retract or apologise, thereby increasing the need for an award of damages which vindicates Mr Fentiman's reputation (factor [c] in John).
(3) The fact that Mr Marsh's assertion of the truth of the libels in his Defence continued the injury to Mr Fentiman's feelings (factor [d] in John).
(4) The identity of the publishees, including in particular the publication to those of Mr Fentiman's employees, members of his PBCC congregations, and colleagues in the industry who believed the allegations.
(5) The propensity of the allegations in question to percolate.
(6) The tone of the Posts, including, in particular, the doctored photograph of Mr Fentiman in the Second Post with the super-imposed word "HACKER".
"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."