McGrath vs Jones

8/2/2019 McGrath vs Jones

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IN THE HIGH COURT OF JUSTICE Claim No HQ11D 01227

QUEENS BENCH DIVISION

HHJ MOLONEY QC (sitting as a Judge of the High Court)

BETWEEN1. CHRISTOPHER ANTHONY MCGRATH2. MCG PRODUCTIONS LIMITED Claimants

And

1. PROFESSOR RICHARD DAWKINS2. THE RICHARD DAWKINS FOUNDATION FOR REASON AND SCIENCE3. AMAZON EU SARL (trading as Amazon.co.uk)4. VAUGHAN JOHN JONES Defendants

JUDGMENT

INTRODUCTION AND CHRONOLOGY

1. This judgment relates to a series of interim applications made by the several

Defendants to an internet libel action brought by the 1st Claimant Mr McGrath (C) and

his company (MCG). (Except where a distinction needs to be drawn, any references

below to C should be taken as covering his company too.) What follows is a summary

of the agreed or otherwise indisputable facts which form the background to the

issues arising under the applications.

2. C is the author of a book entitled The Attempted Murder of God: Hidden Science

You Really Need To Know, which was published by MCG in 2010 under the pen-

name Scrooby. None of the parties referred me to the book itself or any part of it in

evidence during this hearing, but it purports to be a contribution to the current

debate on religion versus science, whose purpose is to argue that modern science,

properly understood, does not refute the existence of God but proves it.

(I say purports because Cs 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 Cs own

intellectual position is necessarily the same in all respects as the books. 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.)


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3. Also published in 2010 was another book on the same general topic, but taking

the opposite side, The Grand Design: New Answers to the Ultimate Questions of

Life by the very well-known scientist Professor Stephen Hawking and Leonard

Mlodinow. Like most books nowadays, both were available for purchase through the

Amazon UK website run by the 3rd Defendant. That website is of course primarily a

commercial vehicle, written and presented by the 3rd Defendant itself for marketing

books and other products. However, it also includes an online public-access facility,

through which any member of the public may publish their own review of a book for

sale on the site, and others may post comments on that review, or on previous

comments, so creating a thread which may be read by any internet user worldwide.

4. Obviously Prof. Hawkings book was likely to attract far more interest among

readers than Cs, but at least some of those readers might also be interested in Cs

book if it came to their attention. C therefore decided to adopt a marketing tactic

which some might consider questionable but which he says is not unusual on theinternet. On 9 September 2010 he posted a purported review of the Hawking book,

signed by Scrooby, which began by giving the details of Cs own book, and then

went on to claim that Cs book answered all doubts raised in [Hawkings] book and

was an antidote to this misguided book.

5. Not surprisingly this review generated a long thread of comments (Thread C),

many critical of Scrooby for trying to take advantage of Prof Hawkings established

reputation to sell his own book. C participated fully in this thread, using several

identities: those of Scrooby and of MCG as was proper, but also those of Reviewer

and C. Sheridan who purported to be third party contributors. In total, of the 60

comments on the thread, 19 were from C in one persona or another, including the

two last and longest which were posted by him on 13 September 2010.

6. The most active and hostile of the other participants in this thread was the 4 th

Defendant, Mr Jones, who describes himself as a person with an interest in public

affairs who writes on scepticism, religious encroachment on public life, civic

religious matters and educational topics such as enforced collective worship. In the

science/religion debate, he is unequivocally in the camp of the scientific atheists.

The great majority of the words complained of in this action were written by him, in

the form of postings on the Amazon website (mostly Thread C, but also on some

other threads generated by other reviews) and on the Dawkins website referred to

below. Some of the words complained of on the Dawkins website were written (in

response to Mr Jones) by other contributors, who are not sued personally.

7. I shall consider the various words complained of in detail later on. For present

purposes it is sufficient to say that in addition to expressing his own opinions on the

topic, and his criticisms of Scroobys views (of which in general C does not

complain), Mr Jones went further in two main respects: by investigating and

exposing C personally as the real author of the book, and criticising him and hiscompany with such words as fraud and phony ; and by characterising C as a


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creationist, to which C strongly objects for reasons to be considered below in

relation to defamatory meaning. (Mr Jones caused C particular and understandable

distress by naming Cs two young children in a pejorative context, which he now

accepts he should not have done.) Many of Cs contributions to Thread C were in

reply to Mr Joness contributions, and vice versa.

8. As stated, this heated debate between C and Mr Jones on Amazon took place

between 9 and 13 September 2010. On 12 September 2010, Mr Jones opened a

second front by commencing a thread on the website richarddawkins.net. The

background here differs in important respects from that of the Amazon website.

9. Professor Richard Dawkins (the 1st Defendant) is of course a very well-known

scientist whose main professional field is biological evolution. In addition he is not

merely a scientific atheist but also (which does not always follow) an active opponent

of traditional revealed religion, which he views as positively false and as harmful invarious respects. In a 2006 web article put in evidence by C (Bundle1/tab2/page 43)

Prof Dawkins stated his manifesto:

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 giveMy 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 theUnited States.

10. The website richarddawkins.net bears the heading of the Richard Dawkins

Foundation for Reason and Science and includes an online discussion forum, largely

it would appear for people like Mr Jones who share the views and aims proclaimed by

Prof. Dawkins. There is a live issue considered below as to whether that website is

operated by the 2nd Defendant, which is a UK company, or by its similarly-named

USA sister, which has not been sued. Whichever corporation is responsible for it, the

websites rule is that no new thread can be opened on the forum without the

originating posting first being read and approved for publication by one of its four

moderators, who included Prof. Dawkins. Once the thread has been opened in this

way, the moderators play no further part, and any later responses will be published

without their intervention or approval.

11. Mr Jones submitted an originating article entitled Dare to criticise a creationist?

Be prepared to be sued in which he gave his version of his ongoing exchange with

C/Scrooby on the Amazon website. This was approved by one of the moderators

(there is an issue as to which) on Sunday 12 September 2010. There followed over

the next four days until 16 September 2010 a thread of some 40 comments inresponse to Mr Joness original entry, including his own further contributions.


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12. The Dawkins thread differs from the Amazon ones in several material respects,

reflecting perhaps the different characteristics of the two websites:

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 Joness words but also

included those of others, a point that should be borne in mind when considering the

extent ofMr Joness personal liability for matter published on the Dawkins website.

13. From an early stage, C protested in the course of the Amazon debate that Mr

Jones had gone too far, and threatened legal action; indeed, it was these threats thatled Mr Jones to open the Dawkins thread, as the title of his opening contribution

shows. The Dawkins thread was taken down on 19 September 2010 following

complaint from C. The position in relation to the Amazon thread is more

complicated, and will be considered in more detail below in relation to the statutory

defences available to ISPs; but it is clear that C tried to have the threads taken down

and that many items were removed by Amazon on 30 September 2010; others

remained in place until proceedings were served in July 2011.

14. On 1 April 2011 C issued his claim form. The original Particulars of Claim ran to

some 61 pages (in fairness, the threads containing the words complained of are

themselves long and complex) and at the Masters suggestion a more compact

version running to some 15 pages was served on 4 July 2011. Unlike the other

Defendants, Mr Jones has served a Defence (short and unparticularised), but

essentially his position is the same as the other Defendants, namely that the claim is

fatally flawed in many respects and should be dismissed summarily. The Defendants

have served a series of applications, all of which were listed before me for hearing

together. C, who is in person, thus found himself facing a formidable body of

opponents and arguments to which it was naturally difficult for him to respond

orally. Fortunately he had anticipated this by preparing very lengthy but well-

researched written submissions in answer, and it became clear early in the hearing

that the fairest course was for me to reserve judgment and consider those

submissions alongside the oral and written submissions advanced by counsel.

15. The applications before me fall into several different categories, which I shall

deal with in the following order:

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 andhis UK Foundation on factual grounds, and Amazon on the basis of the statutory


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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.)

A. RESPONSIBILITY FOR PUBLICATION

16. The 2nd Defendant. As stated, the 2nd Defendant, (the UK company), is

incorporated in England, and has a sister corporation with a similar name (but for

the word Limited) incorporated in the USA. The words complained of were

published on the website richarddawkins.net, for which C says the UK company is

responsible. The UK companys case is principally set out in the Witness Statements

of Prof. Dawkins and of Paula Kirby (who is a consultant manager/administrator for

the UK company), and may be summarised as follows:

- 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 ultimatelysucceed on this issue.


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17. Cs case on this issue is set out very fully in his general written response dated 8

November 2011 (which repeats and consolidates arguments also made in his earlier

submissions dated 17 and 30 September 2011, which I have also taken into

account). He begins with four main points, the second and third of which are directly

relevant to this particular application:

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 1 st and 2nd Defendants from

England (for various reasons considered more fully below).

d. The 3rd Defendant Amazon has also failed to prove its case.

18. I should first deal with the contention that Mr Jones is a proven liar, because it is

a matter of great significance to C. He points in particular to Mr Joness claim in hisevidence to the Court to have consulted Cs LinkedIn entry before commencing his

campaign, and states that this must be false because he did not join LinkedIn until

later. C also refers to other serious matters which if true might affect Mr Joness

credibility, But:

a. These matters are disputed in various respects and the stage to determine them

has not yet been reached.

b. Mr Joness 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 Cs favour,

so it would not yet be necessary to assess Mr Joness credibility.

c. On the present issue of the 2nd Defendants responsibility, Mr Jones has no

relevant evidence to give. Cs 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 Cs favour.

It follows that I do not consider this question relevant to the present application.

19. I turn now to Cs substantive objections to the 2ndDefendants case, which are

relevant and important. He accepts that what he calls the heavy machinery of the

.net website is located in the USA (i.e. the hosting servers and the ICANN

registration) but contends:

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 andcan be switched from country to country to suit their convenience;


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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 attrial that the 1st and/or 2nd Defendants are answerable in law for any of the

publications complained of.)

20. In respect of point (a), artificiality, in a popular sense C is of course quite right,

as Professor Dawkinss manifesto quoted above itself suggests. It would be perfectly

fair and understandable to speak broadly of a single Dawkins movement or school of

thought, centring on him in England, and manifesting itself in, for example, the two

websites. But for the purposes of tort litigation, every act complained of must be or

be shown to be attributable to one or more legal persons, either natural (a human

being) or artificial (some form of corporate body). And, so far as corporations are

concerned, English law permits limited liability; that is, if an act is performed by a

corporation, the shareholders or other human beings behind it are not thereby

personally liable for that act (except that their investment is at risk), and the staff or

management are liable only in respect of their direct personal participation in that

act.

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.

21. At this point I should deal briefly with a related point taken by C. He refers to the

established UK legal doctrine that an internet libel is treated as having been

published where it is downloaded and read, so that for example the American

publisher of an American website is subject to the English courts libel jurisdiction

insofar as people here access it. This is correct; but it does not mean that the English

associates of that American publisher are also liable (unless of course they played a

sufficient part in the particular publication complained of).


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22. A similar source of confusion lies in the common or overlapping management of

the two companies. At the material time, Prof. Dawkins among others was a director

of both companies, and an administrator of the .net website. On his own case, he

discharged some of his functions in respect of the US company and charity from the

UK by email and internet, most relevantly the moderating of the US website. C points

to this as proof that the distinction between the US and the UK arms of the

Foundation is an imaginary one.

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 As behalf(and may well

be personally liable for it) is also the guiding mind of B.

23. It follows that the time-zone question is not likely to be decisive, or even of

great weight, in deciding if the .net website is owned or operated by the US

company; if its management were largely UK-based, they might perfectly well choose

to use UK time even on a US website. But in fact, the 2 nd Defendants case is

different. It is that the website has no specific time zone of its own; each posting is

logged at the time of entry, but that time is displayed to any given reader in his own

local time (e.g. a UK user posts at midday on 1 April, UK time; whenever a New York

user looks at that posting, it will bear the time of 7am New York time, assuming his

own computer uses that time). During the hearing, I gave the 2nd Defendant leave to

file additional evidence corroborating this, which they did, and in consequence

allowed C to file evidence and submissions after the hearing in reply to that fresh

evidence, as he too has done. (His submissions also went beyond that, as further

considered below.) His evidence on this point does not refute or cast serious doubt

on the clear evidence that the timing system is as the 2nd Defendant asserts, and

even at the interim stage I am satisfied that he will not be able to prove otherwise.

24. As to Ms Kirbys alleged admission, at para. 12 of her Witness Statement dated

12 October 2011, I have considered it in its context. What she is plainly there saying

is that because, for reasons of English law, the 2nd Defendant wishes to have prior

sight of all material posted on the British website, it has chosen not to have a

discussion board (which might permit direct postings). It is clear to me that this is

not an admission in the terms claimed by C but rather the reverse.

25. Were it not for the hyperlink question, I would therefore conclude on this issue

that the 2nd Defendant had satisfied me that it plainly bore no responsibility for the

US website or its contents. However, C has maintained from his first submissions

that the websites link toeach other and there is no clear distinction for users (para.

9f, submission of 17 September 2011). So far as I can see, this is not dealt with

expressly in the 2ndDefendants evidence; at the hearing I was assured that the linkran from the US to the UK website but not vice versa, and this appeared to be true so


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far as any express hyperlink was concerned. In his 18 November 2011 response

following the hearing, Mr McGrath went a little beyond my limited permission to

make further submissions by stating at para. 3 that: this is demonstrably untrue;

simply click the home button on the UK .org website and one is taken to the US

.net site where the comments section is clearly visible. I have done so, on several

occasions and with several different devices, and he appears to be correct. One goes

straight into the .net site, and indeed to the index to its .net forum, without even

being notified (whether by the usual click hyperlink or otherwise) that one is

changing websites. This is a short point, but of considerable importance, and

apparently inconsistent with the 2nd Defendants original evidence and submissions.

(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.)

26. The law on liability for hyperlinks is in a state of some uncertainty at present.

Even if the general English rule were to be as recently held in Canada, that a mere

hyperlink does not render the operator of the linking website liable for the content of

the linked site, the decision may well be a fact-sensitive one, especially when, as

here, the two websites are very closely associated, the link is hidden, and the point

of contact is the Home button which is normally regarded as taking you to the

central hub of the same website you are already on. I therefore conclude that I am

not satisfied at this stage that the 2nd Defendant was not answerable for the .net

forum at the material time, and that it is a question fit for trial. This part of the 2 nd

Defendants application fails.

27. The 1st Defendant. As above stated, an individual will not normally be held liable

for a libel published by a company with which he is connected, unless he himself

played a sufficient part in the particular publication to render himself personally

liable for it. The case against Prof. Dawkins was originally put on the basis of his

general responsibility for the website, and as such would have failed for that reason.

However, in his evidence he has very frankly admitted that he was, at the material

time, one of the four administrators of the US website, any one of whom might have

read the 4th Defendants original posting and authorised its publication on the

website (thus exposing themself to personal liability for that item). There is said to

be no record of who approves a particular item. He does not remember reading this

item, and if, as appears to be the case, it was approved at 11.18 on a Sunday

morning UK time, the likelihood is that he did not because his usual practice is to

visit his parents at about that time. (Ms Kirby adds that neither she nor the other two

administrators can say whether they did so.)

28. It appears to me that this is a classic instance of a disputed issue of fact which

cannot properly be dealt with on an application such as the present. It is true that, if

the above evidence is correct (and C is not obliged to accept it), then it would appearon the balance of probabilities that Prof. Dawkins is not personally liable. At present


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C has no direct evidence to refute it. But this litigation is at the earliest possible

stage. The 1st and 2nd Defendants have not even filed a Defence. There has been no

disclosure, for example of the diaries or emails of Prof. Dawkins and his colleagues

for the relevant day which might affect, one way or another, the probabilities as to

who approved this item. Two of the four candidates have not served witness

statements, and none has been cross-examined. Following some or all of these

processes, it is entirely possible that Prof. Dawkinss present recollection may at trial

prove likely to be in error. I therefore refuse this part of the application by the 1 st

Defendant, so far as it relates to the original posting which he may actually have

approved for publication; in relation to the later contributions, no case is made out

against him personally.

29. The 3rd Defendant. Amazon is of a different nature from the campaigning and

polemic 1st and 2nd Defendants, as their different websites show. For this reason,

Amazons case on liability for publication is also different. It accepts that the wordscomplained of appeared on a website which it operates. But it relies on the two

overlapping statutory defences which have come into existence to update for the

internet age the common law defence of innocent dissemination, traditionally

available to newsagents and others who distribute libellous books and papers

without knowledge of their offending content. These are s.1 of the Defamation Act

1996 and Reg. 19 of the Electronic Commerce Regulations 2002, SI 2002/2013 (in

turn based on an EU directive).

30. Section 1(1) of the 1996 Act is as follows:

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.

31. Reg. 19, which is usually regarded as somewhat more liberal, states:

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 wasunlawful; or


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ii. upon obtaining such knowledge or awareness, acts expeditiously to remove or

disable access to the information,

and

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.

32. Amazon seeks to strike out the claim against it on the ground that it is bound to

succeed in one or both of these defences. I caution myself that they are fact-based

and that I must not do so if there is any real possibility that a crucial fact may not be

established at trial, or that other facts may emerge which rebut the defence. Subject

to that, Amazons evidence on the two crucial areas of fact (its general pre-

publication processes and its post-publication responses) was not credibly

challenged by any of Cs evidence and may be summarised as follows.

33. As to pre-publication processes, the Amazon website is of course of enormous

size, since reviews and comments on any of the thousands of books and other

products it sells may be posted by any customer. Its user guidelines forbid

defamatory material, and it can blacklist offending users. The principal active

precaution taken is the use of an automatic filter excluding reviews or comments

which either contain certain forbidden words or are submitted by blacklisted users.

None of the postings complained of failed either of these tests, so they were

displayed without any human intervention. (Reviews, but not comments, which

contain the forbidden words are then submitted for manual, i.e. human, review

before the final decision to exclude is taken. There was a dispute between C and

Amazon about the distinction between reviews and comments, but it is largely of

academic interest because there is no reason to suppose that any manual review

took place here, the forbidden words not having been used .) I do not understand C

to be saying that Amazon was at fault so far as the selection of filtering criteria is

concerned.

34. Post-publication, there are several steps open to a person who is aggrieved by a

review or comment.

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 Amazons Notice and

Takedown Procedure.

c. The Notice and Takedown Procedure forms part of Amazons general Conditions

of Use and Sale, to which there is a link on every webpage. Condition 8 reads asfollows:


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Defamation Claims

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 Amazons 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 Amazons lawyers and dealt with as

they considered appropriate, no doubt often by way of taking down the offending

item.

35. Of course, though the above procedures are provided by Amazon, there is no

legal obligation on the complainant to use them, and the court will consider any

communications in fact made in order to assess their terms and effect.

36. As above stated, C did report some items as inappropriate but that had no

effect. He did not use the Notice of Defamatory Content procedure, which in his

submissions he pejoratively described as snail mail since (presumably because

Amazon wants the reassurance of a signed document as a basis for taking action

which might be harmful to the other party) the pro forma cannot simply be emailed

direct to the legal department. He did take the following steps to bring his grievance

to Amazons notice:

a. On 17 September 2010 he emailed Amazons Technical Support address

complaining about the 4thDefendants 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 Joness 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 anyaction they did not forward the email to the legal department or give C any help or


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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:

http://www.amazon.co.uk/review/T3TIGPA68KMZEQ

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 persons 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 dateAmazon.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 Cs 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 4 th 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.
http://www.amazon.co.uk/review/T3TIGPA68KMZEQhttp://www.amazon.co.uk/review/T3TIGPA68KMZEQhttp://www.amazon.co.uk/review/T3TIGPA68KMZEQhttp://www.amazon.co.uk/review/T3TIGPA68KMZEQ


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37. The above account is based on contemporary documents and is not materially

disputed by C. It appears to me that there is no sufficient likelihood of a different

picture emerging at trial such as would render it inappropriate for me to assess the

merits of the proposed statutory defences on a summary judgment application.

Although the two defences differ in several material respects, the main factual

questions arising each case are broadly similar, and relate to:

a. the status of the defendant does he qualify for protection at all?

b. the defendants conduct and state of knowledge (and consequent responsibility) in

relation to the particular publication complained of, prior to complaint;

c. the defendants response upon being informed of the defamation is it sufficient?

38. As to whether the defendant qualifies for protection, Reg. 19 sets a positive test:

- 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 aresult 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.

39. So far as s.1(1)a of the 1996 Act is concerned, the position is made more

complex by the introduction of the concepts of editing and publishing, and by the

use of the word only in relation to the operation of the system or service.

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.

40. The first point is, in effect, that Amazon is a publisher within the definition of

s.1(2) of the Act, which is:

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


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the public the books originating from the publishers; see s. 1(3)a. Issuing refers to

the former process, not the latter one.

Amazons 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).

41. As to the second point, whether by adopting a policy of limited pre-publication

control Amazon has become an editor (i.e. a person having editorial or equivalentresponsibility for the content of the statement or the decision to publish itunder

s.1(2)), this is an illustration of the notorious Catch-22 under which an ISP seeking

to attract the statutory defence by taking reasonable care may find that it has instead

forfeited it by becoming an editor. In the present case, Amazon took no steps in

relation to the content of any of the statements, and no part in any decision to

publish it, except by way of the automatic process referred to above. (The manual

review was never triggered; had it been, the position might have been very different.)

So far as these publications were concerned, Amazons only role was as provider of

the system or service through which Mr Jones was able to publish them, and I

conclude that it is clear by virtue of s. 1(3)c that it was not an editor. (I note that this

is the cautious view of the editors ofDuncan and Neill (3rd edn. 2009) at 20.08).

42. It being established that Amazon is in principle entitled to rely on each of the

statutory defences, the next set of issues concerns its conduct and state of

knowledge prior to being informed of Cs complaints. Under Reg.19, the question is

again a simple one with a clear answer: Did Amazon have actual knowledge of

unlawful activity or information, and/or was it aware of facts or circumstances from

which it would have been apparent that the activity or information was unlawful?

A corporation can have actual knowledge only through a human representative, and

given the vast size and diverse nature of Amazons 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 Cs complaints. C does not put forward any case

for such actual prior knowledge.

43. The position under s.1 is again more onerous to the defendant. Even during the

pre-complaint period, it must show that it both took reasonable care in relation to

the publication and did not know and had no reason to believe that what it did

caused or contributed to the publication of a defamatory statement.

The use of the word defamatory (as opposed to Reg. 19s unlawful) is significanthere, because subject to the question of legal innuendo it would be apparent to


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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 [2007] 1 WLR 1243, per Eady J at

para. 72.

44. On the question of reasonable care, Amazon submits that its procedures as

summarised at [33] above meet that standard. The problem on an interim strike-out

application is that questions of reasonableness are generally fact-sensitive and will

vary from case to case. I note the provisional view of Eady J in Metropolitan

International Schools Ltd v. Designtechnica Corpn [2009] EWHC 1765 QB at para. 75

that it was difficult to comprehend how reasonable care could have been taken, when

the publication took place without any human input on the part of the defendant (in

that case a search engine rather than a website operator, but the point is a similar

one here). The counter-arguments are not difficult to envisage (for example, that theautomatic processes set a reasonable hurdle, or even that it might be reasonable in

the context of a vast website like this to take no pre-publication steps at all) but I

cannot say that the answer is obvious at this stage, so the attempt to strike out by

reference to s.1 must fail.

45. One specific point taken by C on reasonable care should however be dealt with.

The Act identifies the previous conduct or character of the author, editor or

publisher as being relevant to whether the distributor took reasonable care. C

points out that Amazon has in the past twice been found liable to Lord Trimble for

defamation, and that this indicates a bad character for libel, precluding it from

relying on the statutory defence. But it is the character of the author (Mr Jones), not

that of the distributor (Amazon), which is relevant for this purpose; if Amazon had

known him to have a bad record as a defamer, and still allowed him to use its pages

(as opposed to putting him on the blacklist) that would plainly be relevant to

reasonable care; but there is no evidence that it knew or ought to have known

anything about him. (In any event, with so vast a website, one or two such incidents

in the past are not likely to be of much assistance in deciding whether reasonable

care was taken in this case.)

46. Finally on s.1, if I had been satisfied as to reasonable care, there would have

been no difficulty in concluding that (pre-complaint) Amazon did not know, and had

no reason to believe, that what it did caused or contributed to the publication of a

defamatory statement.

47. The remaining issue is whether, for Reg. 19 purposes, Amazon:

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.


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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 Amazons 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.)

Amazons case is that in his communications with it C never even clearly specifiedthe 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 Joness own username, and the topic

(Scroobys book) to which the objectionable statements related. Amazons 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 Joness 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?

48. But even if he had done that (which, it is plain from his communications with

Amazon set out above, he did not) Reg. 19 demands more from a complainant, if the

defence is to be overcome. He must disclose facts or circumstances making it

apparent that the postings were unlawful. In fairness to Amazon, its pro forma

recognises this and invites such disclosure. But C did not use the pro forma, and

perhaps as a result did not address this requirement at all. If he omitted to put

forward a case on the merits, it would not be possible for Amazon to investigate or

adjudicate upon it, nor did the framers of Reg. 19 expect it to do so. For the above

reasons, I conclude that the Reg. 19 defence is bound to succeed in respect of

Amazons liability for all the publications complained of against it, and the claim

against the 3rd Defendant must be struck out.

(I will however go on to consider in the alternative its case on the other grounds

relied on.)


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B. DEFAMATORY MEANING

50. All four Defendants invite me to address the issue of meaning, and (bearing in

mind that the question what the words actually mean is for the jury which may hear

the trial of this action) to determine whether the words are capable of bearing the

meanings attributed to them by C, and if not then to define the gravest defamatory

meanings they are capable of bearing. The claims are pleaded both as natural and

ordinary meanings and as true or legal innuendoes, which require separate

consideration. If any of the words are not capable of being defamatory they should

be struck out. The less serious the defamatory meanings that survive, the stronger

will be the case for dismissing some or all of the remaining claims under Jameel

abuse of process principles.

51. The principles governing how to determine the meanings which words bear or

are capable of bearing are well known, having been set out by Neill LJ in Gillick v.

BBC [1996] EMLR 267 at 272-3 and applied in many cases since. The central one for

present purposes defines the characteristics of the hypothetical reasonable reader,

who: is not nave but not unduly suspicious; can read between the lines; reads in

implications more readily than a lawyer, and indulges in a certain amount of loose

thinking; but is not avid for scandal and does not select one bad meaning when

other non-defamatory ones are available. Also material to this case is the guidance

of the Court of Appeal in Jeynes v. News Magazines [2008] EWCA Civ 130 that the

characteristics of the publication itself need to be borne in mind, since the

hypothetical reasonable reader is taken to be representative of those who read that

publication.

52. Having determined what meanings the words are capable of bearing, it is then

necessary to determine in each case whether that meaning is capable of being a

defamatory one. There are various definitions of what is defamatory, the classic one

being that set out by the Court of Appeal in Skuse v. Granada [1996] EMLR 278 AT

286 and cited by the editors of Duncan and Neill (supra) at 4.01:

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 [2010] 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 conceptofvulgar abuse, which is often relevant now in chatroom or forum internet cases.


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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.

53. A special feature of chatroom or forum publications is the way in which the

thread of words published on the site is continually evolving by the addition of new

comments. Depending when a particular reader views the thread, he may see some

or all of the eventual total number of comments. In theory this can have several

consequences for defamatory meaning and liability.

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.

54. Amazon: Words Complained Of. For the above reasons, the essential unit of

publication in these cases is the thread, which is equivalent in website terms to a

long article in a traditional newspaper, within which the words complained of appear.

Unfortunately, in the Particulars of Claim C has obscured this by pleading the 4th

Defendants Amazon contributions in chronological order without much regard to

which threads they appeared in. Helpfully, the 3rd Defendant in its submissions has

largely cured this defect by setting out each thread in full and highlighting the words

complained of. These schedules will be an appendix to this judgment, but I

summarise the essential points below.


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55. Thread C. This is the original and much the longest thread, eventually

comprising 60 comments running to some 60 typed pages. It begins on 9 September

with Cs purported review of the Hawking book, in fact a plug for his own. There

follow 12 comments in which C and third parties (one of them his alias C.Sheridan)

exchange views. At Comment 13, the 4th Defendant joins in, including the following

words complained of:

- McG Publications is indeed apublishingcompany in the same way that my shed is

a large scale production factory churning out hundreds of guitars every year.

-I think that its really his own company.

-Dont take my word for it, do the investigation for yourself.CompaniesHouse is a

useful resource too especially when you consider that McG Productions (and

Publishers) are actually a residentially based business; i.e. its a home setup and not

what you would realistically call an enterprise. Its 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 includesthe 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.

-Ive proventhat 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 doesnt 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 Cs two young children (whose names he had found elsewhere on the web)

saying that he felt sorry they would be subjected to their fathers bullsh*t for some

time; not surprisingly this distressed C further.

Comment 30 contained the following words complained of:


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- 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 4thDefendants 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 wordscomplained of (referring to a statement of Cs 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 4 th 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 Joness 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.

56. Amazon; Thread D. This thread also began with a review of the Hawking book,

but this time a bona fide review (by Emc2) posted on 9 September 2010. There

followed a series of 9 comments debating the books thesis in an intelligent and

polite manner. At Comment 10, C (as Scrooby) intervened with a long plug for his

own book, beginning Heres just a taster of why Hawkings book is nonsense andwhy he knows God exists; the rest is in The Attempted Murder of God. (This is of


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course a serious attack on the intellectual honesty of Prof. Hawking, and

demonstrates how far C was prepared to go to provoke a reaction that might help his

book.)

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 cant 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 actionridiculous. 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 hecomplained to Thames Valley Police and threatened legal action.Youre an

embarrassment to the human race and you were found out.

The thread appears to have ended there.

57. Amazon; Thread G. This thread begins with a review, not of the Hawking book

but of the Scrooby book itself. It was posted on 10 September 2010 by Lifesagame.

Its tone is clear from its headline: Complete garbage written by a moronic hack. It

was not written by Mr Jones, but (perhaps understandably) C thought it had been and

posted Comment 1, which attacked him and his views in no uncertain terms.

Lifesagame replied with Comment 2, and then Mr Jones with Comment 3 which

included the following words complained of, similar to some of Thread C:

- 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? Youve piggybacked your book on the back of Stephen Hawkings

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.

58. Amazon; Thread H. Again, this thread begins with a review of Scroobys book,

posted by a third party C.J. Cook, and summarised by its headline * Dont believe

the 5-star reviews. (Apparently C had opened other threads on his book with 5-star

reviews posted by himself under his aliases, as Cook pointed out.) The 4th Defendant

and Cook were the only contributors, and at Comment 5 on 4 October 2010 Mr Jones

posted the following words complained of:


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- 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.

59. Amazon; Pleaded Natural and Ordinary Meanings. Because of the way in which C

set out the words complained of, it is difficult to attribute his pleaded meanings to

the different threads as they should have been. However, the claimants pleaded

meanings are not binding on a court ruling on what meanings the words are capable

of bearing, except that they set an upper limit of gravity, and that the court will not

put forward a new meaning of its own, different in nature from those complained of.

It is therefore right to summarise the pleaded natural and ordinary meanings

attributed by the Particulars of Claim to the 4th Defendants words on the 3rd

Defendants website; I have sought to group them according to two broad subjectareas.

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.


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60. Amazon; Legal Innuendo Meanings. At various points in the Particulars of Claim

C uses the term innuendo. Sometimes he uses it in the sense of a false innuendo,

that is, simply a natural and ordinary meaning, albeit one that is implicit in the words

and needs to be spelt out. But in one important respect his case (in respect of both

websites) goes further. It is his case that the word creationist has acquired a special

meaning in recent years, going beyond its literal and non-defamatory one of a

person who believes in the divine or supernatural creation of the universe, as

opposed to a purely natural cause. He says that it now means, at least to some

people, a person who is: a malicious liar, a fascist, homophobic, anti-western society

and a danger to the education of children.

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, whosereadership 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 Darwins 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 persons reputation in the estimation of reasonable people or

have a tendency to do so.)

61. I therefore turn to the two related questions:

- 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.

62. As to Thread C, applying the principles summarised above, and having read the

thread as a whole from the standpoint of the hypothetical reasonable reader, I find

that the 1st Claimant has a sufficient case that it is capable of bearing the following

meanings defamatory of him personally, and passing the Thornton level of

seriousness; (I indicate the particular sections of the words complained of that may

generate those meanings when considered in context):


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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 Joness 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 2 nd

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).

63. I also accept that Thread C is capable of bearing the meaning or meanings that

he is a creationist, a dogmatist, a Christian, a Catholic, and a person who seeks God

through one religion only (Comments 20 and 44); but, even allowing for the

opprobrious manner in which the 4th Defendant expresses himself on these points, I

am satisfied that no jury properly directed could conclude that it was defamatory of

the 1st Claimant to hold those views known to be shared by many well-respected

members of society, even if others including the 4 th Defendant vigorously disagree

with those views.

(This topic is further considered below in relation to innuendoes on the Dawkins

website.)

64. In relation to the 2nd Claimant company, and the 1st Claimant in his capacity as

its human principal, I accept that the words complained of are capable of bearing the

following meanings in relation to them:

i. that it is a very small company;

ii. that it has no separate premises but is run from Mr McGraths 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.)

65. However, I do not consider that meanings i-iv are capable of being defamatory of

either Claimant. I accept the 3rd and 4thDefendants contentions that these matters,

taken separately or together, do not impute any misconduct, nor would they tend toinjure the Claimants reputation or standing in business. There is nothing wrong with


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a business being small or unprofitable, or having a limited, even a propagandist,

purpose, or with it being run from home; and no reasonable jury would think so.

(The position would be different if it was suggested that the company had made

false claims to be larger and better established than was in fact the case; but that

allegation is not to be found in the words complained of.)

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.

66. I should also deal specifically with Comment 32, in which Mr Jones responded to

Cs threats of libel action by referring to fair comment. In the context of the stage

their debate had reached by that point, I do not consider that any reasonable reader

would think the less of C by reason of that observation, however limited theirknowledge of the law of libel. (Had he said he would rely on the defence of truth,

the position might perhaps have been different.)

66. It follows that on meaning grounds:

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.

67. Applying a similar approach to the other, shorter threads complained of, my

conclusions are as follows:

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 Joness 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:


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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 Cs 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 1 st

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 [66] above, except that in relation

to Thread H the company will also have a claim.

68. Dawkins Website; Words Complained Of. There is only one thread on the

Dawkins website; but not all the words complained of were written by the 4 th

Defendant. It begins with an article by the 4th Defendant, posted on 12 September

2010 and headlined Dare to criticise a creationist? Be prepared to be sued and

continues with 40 comments, taking up some 24 typed pages; again these should be

annexed to this judgment. Of the 40 comments, 11 are from Mr Jones, but only one

(Comment 33) is sued on. 10 other comments are sued on, from Roger J. Stanyard

(1, 2 and 11), Steve Hill (15, 17 and 27), Alan4discussion (20, 28 and 40), and Steve

Zara (23).


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69. In the original article, the following passages are complained of:

- Dare to criticise a creationist? Be prepared to be sued.

-The Grand Design by Stephen Hawking and Leonard Mlodinowis 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

Knowby author Scroobyclearly a pseudonym.

-Anyway, Im a Historian by degree and tend to look at books in a different way. For

instance I will not only read the book but Ill research the author, the publisher, the

sources, and look for behavioural patterns to ascertain the writers 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

somewhere3. 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

BournemouthUniversity

- Anyway, this guy has now claimed he is informing the police and taking legal

action for my criticisms of his work

- Ive never heard of legal action being taken where you take apart a creationists

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.)

70. In response to this article the following words complained of were posted, mostly

as part of longer comments. (Again, I am obliged to counsel for the 1st and 2nd

Defendants for disentangling them from the pleading and allocating them to their

respective sources.)

Comment 1- The police have long experience of receiving letters or whatever from

one-man-band religious nutters. The guy youre dealing with doesnt 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 gooliesand that

is how he is treating you. [Only the italicised words are complained of.]


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Comment 11- Mc

Documents

McGrath vs Jones