England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th March 2012

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 1^st 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 C's case is that the book is not to be taken at face value but is intended as a satirical parody of various aspects of modern life such as conspiracy theories and deception. In view of this assertion it would not be appropriate at this stage of the proceedings for the Court to assume that C's own intellectual position is necessarily the same in all respects as the book's. He has pleaded that he is a Roman Catholic by upbringing, though non-practising, a believer in God, but not a "Creationist" at least in the narrow sense of that term; he accepts evolutionary biology as an indisputable fact, but is not certain as to the truth or otherwise of the account of creation in Genesis. See his Part 18 Response dated 25 July 2011.)

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 3^rd Defendant. That website is of course primarily a commercial vehicle, written and presented by the 3^rd 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. Hawking's book was likely to attract far more interest among readers than C's, but at least some of those readers might also be interested in C's 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 the internet. On 9 September 2010 he posted a purported review of the Hawking book, signed by "Scrooby", which began by giving the details of C's own book, and then went on to claim that C's book "answered all doubts raised in [Hawking's] 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 Hawking's 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 Scrooby's 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 his company with such words as "fraud" and "phony"; and by characterising C as a "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 C's two young children in a pejorative context, which he now accepts he should not have done.) Many of C's contributions to Thread C were in reply to Mr Jones's 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 in various 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 give…My Trustees and I have set up the Richard Dawkins Foundation for Reason and Science. It is actually two sister foundations of the same name, one legally constituted in Britain and the other legally incorporated in the United States."

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 2^nd 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 website's 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 in response to Mr Jones's original entry, including his own further contributions.
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 Jones's words but also included those of others, a point that should be borne in mind when considering the extent of Mr Jones's personal liability for matter published on the Dawkins website.

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 that led 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 and his UK Foundation on factual grounds, and Amazon on the basis of the statutory defences provided by s. 1 of the Defamation Act 1996 and reg. 19 Electronic Commerce Regulations 2002 (SI 2002/2013).

b. Defamatory Meaning. I am asked by each Defendant to rule on whether and to what extent the words complained of against them are capable of bearing the meanings attributed to them by the Particulars of Claim or any and if so what meaning defamatory of the Claimants or either of them.

c. Damage. Objection is taken on legal grounds to the pleaded claims for aggravated and exemplary damages, and more generally to the Claimants' apparent attempt to bring in a wider claim for commercial losses from a separate business venture.

d. Abuse of Process. In summary I am asked to rule on whether so much of the claim as may survive the above objections is "a game worth the candle" in comparison with the cost and court time likely to be expended in determining it.

(In addition the Defendants object to various aspects of the manner in which the case is pleaded; but since C is a litigant in person I would normally give him the opportunity to put that right by amendment, unless the flaw was a fatal and incurable one.)

A. RESPONSIBILITY FOR PUBLICATION
16. The 2^nd Defendant. As stated, the 2^nd 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 company's 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 2^nd Defendant to satisfy me of this, and I should refuse the application if the evidence it puts before me is not convincing, and/or if I consider that there is a real prospect that (following pleading, disclosure and trial) the Claimants may ultimately succeed on this issue.

17. C's 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 2^nd Defendants from England (for various reasons considered more fully below).

d. The 3^rd 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 Mr McGrath. He points in particular to Mr Jones's claim in his evidence to the Court to have consulted C's LinkedIn entry before commencing his campaign, and states that this must be false because he together with the Claimant company did not join LinkedIn until later. C also refers to other serious matters which if true might affect Mr Jones's credibility, But:

a. These matters are disputed in various respects and the stage to determine them has not yet been reached.

b. Mr Jones's credibility would be relevant, if the Court had to decide a disputed issue of fact which turned in whole or part on his evidence. As it happens, I do not think any such issue arises at this stage; but if it did, then on a summary judgment application I would have to assume that that dispute had been resolved in C's favour, so it would not yet be necessary to assess Mr Jones's credibility.

c. On the present issue of the 2^nd Defendant's responsibility, Mr Jones has no relevant evidence to give. C's point is that the other Defendants' reliance on him diminishes their own credibility in respect of other matters unconnected with Mr Jones. I am not very impressed with this point, the connection between Mr Jones and the other Defendants being a tenuous one, and their reliance on his disputed evidence of fact being very limited. But in any event, as above stated, if I found myself having to consider their credibility at this stage, I would be bound to assume the disputed matter in C's favour.

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

19. I turn now to C's substantive objections to the 2^nd Defendant's 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 and can be switched from country to country to suit their convenience;

b. that one proof of this, or clue to the reality, is that the first posting on the website bears a UK time of 11.18 am (the time when the moderator approved it) – if this is an American website, why does it use UK time?

c. and that in her evidence Ms Kirby effectively admits liability by saying that the 2^nd 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 1^st and 2^nd Defendants' assertion that there is no hyperlink from the UK to the US website, but only the other way.

(In considering the applications, I remind myself that it is not, at this stage, for C to prove that his points are good; it is for the Defendants to prove that they are bound to fail, as being false or irrelevant, and that C has no real prospect of establishing at trial that the 1^st and/or 2^nd 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 Dawkins's 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 court's 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).
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 A's 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 Defendant's 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 2^nd 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 2^nd Defendant asserts, and even at the interim stage I am satisfied that he will not be able to prove otherwise.
24. As to Ms Kirby's 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 2^nd 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 2^nd 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 to each 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 2^nd Defendant's evidence; at the hearing I was assured that the link ran from the US to the UK website but not vice versa, and this appeared to be true so 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 2^nd Defendant's original evidence and submissions.

(The 2^nd 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 2^nd 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 Defendant's application fails.
27. The 1^st 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 4^th Defendant's 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 appear on the balance of probabilities that Prof. Dawkins is not personally liable. At present C has no direct evidence to refute it. But this litigation is at the earliest possible stage. The 1^st and 2^nd 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. Dawkins's 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 3^rd Defendant. Amazon is of a different nature from the campaigning and polemic 1^st and 2^nd Defendants, as their different websites show. For this reason, Amazon's case on liability for publication is also different. It accepts that the words complained 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 was unlawful; or

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, Amazon's 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 C's 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 Amazon's Notice and Takedown Procedure.

c. The Notice and Takedown Procedure forms part of Amazon's general Conditions of Use and Sale, to which there is a link on every webpage. Condition 8 reads as follows:

"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 Amazon's legal department in Slough. That pro forma is in the form of a witness statement, but with content not dissimilar to a defamation protocol letter before action. The complainant is invited to provide:

i. name, address and occupation;

ii. details of the location of the defamatory words, including the web page address;

iii. the exact words complained of;

iv. the reason the words are defamatory;

v. the reasons they are untrue, and what the true position is.

e. Upon receipt, this would be considered by Amazon's lawyers and dealt with as they considered appropriate, no doubt often by way of taking down the offending item.

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 Amazon's notice:

a. On 17 September 2010 he emailed Amazon's Technical Support address complaining about the 4^th Defendant's postings, which he described as "abusive" and "slandering", referring in particular to a "vendetta" and to being called a "liar". He named the 4^th Defendant and gave his email address, but did not give specific details of the location of the words complained of (though he did refer to "the thread under The Grand Design by Stephen Hawking"). He asked for Mr Jones's comments to be removed and his account to be considered for suspension or deletion.

Technical Support replied the next day saying that they were unable to take any action – they did not forward the email to the legal department or give C any help or advice as to how to pursue the matter. When on 20 September he asked them to pass it on to the appropriate department he received no reply, though this appears to be because he did not use the suggested address.

b. On 30 September 2010 C did make effective contact with the legal department (understandably copying his email to the CEO of Amazon in the USA and to other departments in the hope of ensuring a response). The material parts of this email are as follows:

" 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 person's comments and reviews against the book The Attempted Murder of God: Hidden Science You Really Need to Know as inappropriate as they attack the author and company in a libellous and defamatory manner. To date Amazon.co.uk has done nothing about it. Please remove immediately all comments by this gentleman in relation to the book, the company and the author and submit for removal all Google cache entries. By allowing these comments on Amazon.co.uk, Amazon.co.uk also becomes implicated in the legal action."

This was promptly acknowledged the same day by Mr Collins, then head of legal, who then procured the removal of the particular review identified in C's email; it was taken down before midnight on 30 September 2010, and C so informed.

c. Also removed that night were 14 comments by the 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 4^th Defendant remained on the website were eventually removed on 11 and 12 July 2011.

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 defendant's conduct and state of knowledge (and consequent responsibility) in relation to the particular publication complained of, prior to complaint;

c. the defendant's response upon being informed of the defamation – is it sufficient?

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 a result of that storage?

S.1 of the 1996 Act sets a negative test:

- D must not be the author, editor or publisher of the statement; but a person will not be considered the author, editor or publisher if (to give the most applicable statutory example) he is only involved in operating or providing any system or service by means of which the statement is made available in electronic form.

So far as the Reg. 19 test is concerned, it is clear that the service Amazon provides to its users, of storing their reviews and comments for reading by others, falls within that definition.

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 the public the books originating from the publishers; see s. 1(3)a. "Issuing" refers to the former process, not the latter one.

Amazon's primary business (for present purposes) is of course that of an online bookseller rather than a publisher. That is where its revenue comes from, not from the operation of the website (which is free to users). Ancillary to its business, a traditional bookseller might well issue free publications of its own such as catalogues and advertisements, but nobody would therefore describe its business as that of a publisher. In the same way, it follows that even though Amazon may well be the "publisher" of the website and its user-generated content, in the broad sense in which that term is used in defamation law, and may well do so in the course of its business (i.e. as a means to its primary purpose of retailing the products of others) it is nevertheless plainly not a "commercial" publisher within the definition of s.1(2).

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 equivalent responsibility for the content of the statement or the decision to publish it" under 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, Amazon's 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 of Duncan and Neill (3^rd 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 C's 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 Amazon's website there is no reason to suppose that anyone in Amazon was actually aware of these postings, let alone of their possible unlawfulness, prior to C's complaints. C does not put forward any case for such actual prior knowledge.

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. 19's "unlawful") is significant here, because subject to the question of legal innuendo it would be apparent to Amazon upon a first reading whether the words were defamatory, i.e. injurious to reputation. The word "unlawful" in Reg. 19 has been held to import the further requirement that the defendant should also "know something of the strength or weakness of available defences"; see Bunt v. Tilley [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 the automatic 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.

This provision of Reg. 19 is amplified by Reg. 22, which provides that in determining actual knowledge a court shall take into account all the circumstances, and in particular:

"whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)c" [which requires the provider to make available to the recipient rapid and effective contact details including its e-mail address]

"and the extent to which any notice includes-

i. the name and address of the sender of the notice;

ii. details of the location of the information in question; and

iii. details of the unlawful nature of the activity or information in question".

(C does not accept that Amazon's Notice and Takedown Procedure, detailed above, complies with Reg. 22; but assuming that to be correct, a breach of Reg. 6 would not of itself invalidate a Reg. 19 defence.)

Amazon's case is that in his communications with it C never even clearly specified the location of the postings of which he now complains, let alone set out facts and matters that would show them to be untrue or unfair. As to location, I am not persuaded of the merits of this point. Although C did not give URL addresses for each and every posting, he did specify Mr Jones's own username, and the topic (Scrooby's book) to which the objectionable statements related. Amazon's website includes the facility to look up all other reviews from any reviewer, and as stated it had no difficulty in immediately identifying and removing 14 of Mr Jones's comments about C.

It remains true, however, that not everything the 4^th 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 Amazon's liability for all the publications complained of against it, and the claim against the 3^rd Defendant must be struck out.

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

B. DEFAMATORY MEANING
49. 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.
50. 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 naïve 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.
51. 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 concept of "vulgar abuse", which is often relevant now in chatroom or forum internet cases. This is an application of the familiar principle that there is a distinction between the literal meaning of words and their natural and ordinary one; apparently serious words may in their context be so plainly outrageous that they are clearly not intended or understood literally, and may even become devoid of content and not defamatory at all.

Also relevant is the doctrine of "bane and antidote" by which replies and rebuttals can not merely act as mitigation but actually dilute or even eliminate the defamatory meaning, provided they are contained within the same publication.

52. 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.

53. 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 4^th Defendant's Amazon contributions in chronological order without much regard to which threads they appeared in. Helpfully, the 3^rd 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.
54. 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 C's 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 4^th Defendant joins in, including the following words complained of:

- McG Publications is indeed a "publishing" company in the same way that my shed is a large scale production factory churning out hundreds of guitars every year.

- I think that it's really his own company.

- Don't take my word for it, do the investigation for yourself….Companies House is a useful resource too especially when you consider that McG Productions (and Publishers) are actually a residentially based business; i.e. it's a home setup and not what you would realistically call an enterprise. It's essentially an ego trip for Scrooby.

C replied at length in Comment 14, and added Comment 15 on a different point. They then exchanged Comments 16 and 17, and Mr Jones added 18, which includes the following words complained of:

- The problem I have is when a small publisher is set up for a specific purpose- creationist dogma.

- (1) McG Productions has a "publishing arm" run out of a residential address (despite your denial to the contrary because if you publish the business address on your website and Companies House, a cursory Google Earth search on the address reveals residential addresses….A publishing company that promotes 1 author in 9 months of operation is not a company that is destined to make money.

C replied at length in Comment 19, and the 4^th Defendant in Comment 20, which includes the following words complained of:

-someone with a creationist mindset and also one so close minded that they restrict their search for god under the guise of one religion.

- I cannot stand those who try to piggy back off the success of others.

- I do not need to hide behind phony publishing companies operating from a back bedroom to try to give myself some credibility. Your attempt to piggy back on Hawking et al shows the desperation of your creed…

- Now hide behind your pseudonym Chris, hide behind your phony publishing company, hide in your back bedroom.

- I've proven that you are a fraud. (The surrounding words, not complained of, are of particular importance as context given the usual significance of the word "fraud". They are: "You FAKE reviews on other sites, you SET UP accounts to generate FAKE interest, you piggy-back on the success of others-it doesn't get any more INTELLECTUALLY DISHONEST than that".)

Their exchange continued in Comments 21, 22, 24, 25, 26, 27 and 28, (comments 23 and 29 were from other users). In Comment 25 Mr Jones did, very regrettably, name C's two young children (whose names he had found elsewhere on the web) saying that he felt sorry they would be subjected to their father's "bullsh*t for some time; not surprisingly this distressed C further.

Comment 30 contained the following words complained of:

- he has stooped to the level of contacting someone on facebook to ask about me and try to find out some personal information.

In Comment 31, C threatened the author of Comment 29 (LH) with defamation action. The 4^th Defendant's Comment 32 included the following words complained of:

- You can cite defamation as much as you like but there is such a legal privilege as "fair comment".

In Comment 33, C set out his complaint to the police against Mr Jones for naming his children, and told him he would be contacted by solicitors. Comment 34 was from LH. In Comment 35, Mr Jones replied to Comment 33, including the following words complained of:

- Content is hostile? What, showing you up to be a fraud?

- …actual attempts to coerce information from other people about me…

He also added Comment 36; C replied with Comment 37. Comment 38 was from LH and 39 and 40 from Mr Jones again. At 41, he included the following words complained of (referring to a statement of C's in his letter to the police that MCG was protecting its employees and their children):

- Are you an employee then Chris? Looks like you are falsely representing your position here…

Perhaps surprisingly in view of the accusations of fakery, C chose to reply to this (at 42) with a long posting under his other alias of "Reviewer", purporting to be an independent reader of the book and urging Mr Jones "in all candour and kindness" not to post a single word more. At 43, a real third party urged them to stop "poking each other". At Comment 44 the 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 Jones's "deceits and slanders will not look good in court" and accusing him of "hypocrisy, small-mindedness, ill-placed vanity, intellectual dishonesty" and "psychological and emotional disturbance". The thread continued with further contributions from Mr Jones (46, 49, 53, 55, 57), C or his aliases (47, 51, 59 and 60), and third parties (48, 50, 52, 54, 56, 58). The last two comments, on 13 September 2010, were effectively one very long 6-page posting by C, dealing mainly with the intellectual side of the debate and in particular the question of parody.

55. 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 book's thesis in an intelligent and polite manner. At Comment 10, C (as Scrooby) intervened with a long plug for his own book, beginning "Here's just a taster of why Hawking's book is nonsense and why he knows God exists; the rest is in "The Attempted Murder of God". (This is of 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 4^th Defendant entered the fray; the whole Comment is complained of.

- Scrooby has already been outed as a chancer. I can't believe he is still pimping his book out to all and sundry. I wrote a review on his book and received threats of police and legal action…ridiculous. The guy is a delusional crackpot.

At Comments 16, 17 and 18, the original debaters ignored this and continued their discussion. C joined in at Comment 19, ignoring Comment 15 and saying he would never mock people for their non-belief. Mr Jones responded to that at Comment 20 (17 September 2010) including the following words complained of:

- "I would never mock people for their non-belief". Liar. Simple as that. In fact Chris was so incensed with my critique of his book and for my Atheist belief that he complained to Thames Valley Police and threatened legal action….You're an embarrassment to the human race and you were found out.

The thread appears to have ended there.

56. 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? You've piggybacked your book on the back of Stephen Hawking's work; a chronically disabled guy…

- Are you really that sick and depraved to have to resort to this sort of behaviour?

- I feel sorry for your kids who it seems will be subjected to your bullsh*t for some time to come.

C replied with Comments 4 and 5, threatening police action; Mr Jones in turn posted Comments 6 and 7. This was on September 11^th; the thread then lay dormant until 9 July 2011 when Mr Jones added Comment 8, reporting that libel proceedings had been issued.

57. Amazon; Thread H. Again, this thread begins with a review of Scrooby's book, posted by a third party C.J. Cook, and summarised by its headline " * Don't 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 4^th Defendant and Cook were the only contributors, and at Comment 5 on 4 October 2010 Mr Jones posted the following words complained of:

- 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.

58. 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 claimant's 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 4^th Defendant's words on the 3^rd Defendant's website; I have sought to group them according to two broad subject areas.

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 2^nd Claimant was set up for the sole purpose of realising the failed writing and publishing ambitions of the 1^st 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 2^nd Claimant company is run by a man with the bad personal characteristics of the 1^st Claimant (see below).

b. Personal dishonesty or misconduct of the 1^st 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.

59. 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, whose readership even of reviews of specialist books is drawn from the general population (albeit readers who are likely to have some prior interest in the book under review or its author or subject) he has laid no groundwork for the proposition that some of those readers are possessed of any special knowledge or information which would lead them to understand the word "creationist" differently from the public at large, let alone in the strongly pejorative sense set out above. So in relation to the Amazon website, I am satisfied that there is no case for any true innuendo meaning of the kind sought to be relied on, and that it should be struck out.

(I should add that it is arguable that, even in general use, the word "creationist" has now developed a more specific natural and ordinary meaning than the literal one set out above, such as "a fundamentalist Christian who believes in the literal truth of the biblical account of creation and rejects Darwin's theory of natural selection"; but that again is a perfectly respectable and widely-held belief, and not one the holding of which would lower a person's reputation in the estimation of reasonable people or have a tendency to do so.)

60. 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.

61. 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 1^st 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):

a. that he has behaved unethically by trying to piggy-back off the success of others (Comment 20);

b. that he is an intellectual fraud because he fakes reviews, seeks to generate fake interest, piggy-backs off the success of others and is for these reasons intellectually dishonest (Comments 20, 35,);

c. that he has acted improperly by contacting one of Mr Jones's Facebook friends and seeking to coerce personal information about Mr Jones from them (Comments 30 and 35);

d. that he has falsely represented to the Police that he is an employee of the 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).

62. 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 4^th Defendant expresses himself on these points, I am satisfied that no jury properly directed could conclude that it was defamatory of the 1^st 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.)

63. In relation to the 2^nd Claimant company, and the 1^st 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 McGrath's home;

iii. that it was set up by Mr McGrath for the sole purpose of giving credibility to his creationist book;

iv. that for this reason it is not destined to make any money;

v. and that also for this reason it is phony.

(See particularly Comments 13, 18, and 20.)

64. However, I do not consider that meanings i-iv are capable of being defamatory of either Claimant. I accept the 3^rd and 4^th Defendants' contentions that these matters, taken separately or together, do not impute any misconduct, nor would they tend to injure the Claimants' reputation or standing in business. There is nothing wrong with 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.

65. I should also deal specifically with Comment 32, in which Mr Jones responded to C's 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 their knowledge 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 1^st 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 2^nd 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 1^st Claimant only:

f. that he is a liar who falsely claims not to mock non-believers, when in fact he is so hostile to Mr Jones's atheist beliefs that for that reason he threatened him with police and legal action.

Thread G For the reasons above stated, the allegation in Comment 3 that the book has been published from a bedroom is not capable of being defamatory of either Claimant. The Comment does however bear the following meanings defamatory of the 1^st Claimant:

g. that he has improperly sought to gain commercial advantage for himself by piggy-backing on the work of a disabled person; and

h. that this conduct can fairly be described as desperate, sick and depraved.

The remark about C's children cannot add anything but emphasis to the above stings. In that sense it is vulgar abuse, but it remains a proper subject of complaint as part of the passage complained of and as being relevant to damage.

(I should add, since it is a point of some importance to C, that although he complained of the words which referred to the well-known fact that Prof. Hawking suffers from a very serious physical disability, he did not refer to that disability in his pleaded meaning, because he respects the fact that Prof. Hawking does not seek to take any advantage of his disability. I understand this; but the defamatory implication here, which I consider it plain that right-thinking people would or might share, is that it is particularly wrong for others to take improper advantage of the work of a disabled person.)

Thread H A special feature of this thread is that, unlike the others, it consists solely of exchanges between Mr Jones and one other contributor, C.J. Cook, who appears to be familiar with the dispute from other threads ; it does not contain as much contextual material as the others, and therefore its words are much more easily taken at face value by a reader.

Comment 5 is plainly capable of bearing a defamatory meaning about the 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 4^th 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 2^nd Claimant is a vehicle used by the 1^st 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 4^th 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).
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 Mlodinow…is being sold on Amazon.

- One such person decided, rather than actually read the book, to instead pimp their own book called "The Attempted Murder of God: Hidden Science You really Need to Know" by author Scrooby…clearly a pseudonym.

-Anyway, I'm a Historian by degree and tend to look at books in a different way. For instance I will not only read the book but I'll research the author, the publisher, the sources, and look for behavioural patterns to ascertain the writer's intentions, motives and bias. I did exactly the same for Scrooby that I do for any author/publisher… the most pertinent facts are: …

2. The McG Publishing company and McG Publications are run out of a bedroom somewhere…

3. The company was set up to bring out the author Scrooby who is in fact Chris McGrath…

4. Chris McGrath has claimed that he has scientific proof for the evidence of god, however this does not appear in the book. There are also zero scientific sources in the book from any peer reviewed scientist or indeed any scientist for that matter.

5. Indeed Chris McGrath is not a scientist … he is in fact a failed film student from Bournemouth University…

- Anyway, this guy has now claimed he is informing the police and taking legal action for my criticisms of his work…

- I've never heard of legal action being taken where you take apart a creationist's case.

- TAGGED: CREATIONISM, DISHONESTY, FLEAS, IRRATIONALITY, LAW, STEPHEN HAWKING, WINGNUTS. (These tag-words appear alongside the article and can be used to link it to other articles on the website similarly tagged. The tags were apparently selected by Mr Jones from a list available on the website.)

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 1^st and 2^nd 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 you're dealing with doesn't even have any connections with other nutters. When we (I) was hit by the nutters we had good reason to believe that the shooting match was organised by at least two well known creationist organisations (one with an annual budget of millions); the front man also did a runner afterwards (to Kenya).

Comment 2- I forgot to add, please continue to kick Scooby in the goolies and that is how he is treating you. [Only the italicised words are complained of.]

Comment 11- McGrath appears to have a wife and family to support out of the proceeds of sale of his one and only book. That's the real measure of his desperation. He's set up a business and is screwing up at the first stage… Better off on the dole. [Just sit back and] let him hang himself.

Comment 15- Small point – a company is a "person" in law. It has human rights. It can sue for libel. But this clown won't get anywhere.

Comment 17- The usual wingnut drivel.

Comment 20- The fundamentalist who knows he's right. You could for a few pounds get details of his company's assets and directors from Companies House….Try to do this in a way that makes HIM do all the work. Don't give an unnecessary detail or justification. Let him write and ask again. Be mimalist [sic] in any letters to any third parties he tries to use and keep a folder of any letters.

Comment 27- Any fool can set up a publishing company and a pretty website and put a sample chapter on line. The danger is that creationism's army of useful idiots will be impressed by the free sample chapters and question no more (if they ever did). But then they're the sort of people who probably never get to the end of a book anyway because it hurts their brains.

Comment 28- A try-on by a disreputable idiot.

Comment 33 [From the 4^th Defendant]- Glad I'm not the only one who thinks he's a chancer.

Comment 40- This is a classic example of creationist thinking. CMcG …sets up a commercial organisation to make money and spread his confused ideas, also giving him apparent status as managing director…The big money creationists of like mind make a similar pretense of independense by reviewing each other's work. The posing as managing director of a non-entity company is similar. The big money outfits set up creationist "educational institutions".

71. The Dawkins Website; Natural and Ordinary Meanings. The meanings pleaded in respect of the original article and subsequent comments are similar to those alleged in the case of Amazon, but the distinction between the personal and business allegations is less clear-cut, and little attempt is made to attribute them to particular passages or comments. They are in summary as follows.

The Claimants are:

i. liars and swindlers of ill-repute;

ii. exhibiting cognitive deficiencies;

iii. morally corrupt Creationist writers and publishers;

iv. both deserving of the utmost ridicule;

v. (the 1^st Claimant only) deserving of physical violence to his genital area;

vi. people who will sue you if criticised;

vii. despicable self-publicists with cognitive deficiency;

viii. not a realistic business but a business which takes place in a bedroom and should not be traded with;

ix. not intellectually credible, all the science in their book being from their own imagination;

x. (the 1^st Claimant is) a failed film student, so failure attends all his enterprises and his business is not one with which to deal;

xi. anti-Atheist bigots, obstinately and intolerantly devoted to their own opinions and prejudices, and exhibiting intolerance and animosity towards atheists.

(Meanings vi-xi are described in the alternative as innuendoes, but this must refer to "false" innuendo because a case on "legal or true" innuendo is pleaded separately.)

72. Reading the Dawkins thread as a whole, while addressing myself particularly to the words actually complained of, my conclusion is that it is capable of bearing the following meanings, defamatory or potentially defamatory, of the Claimants. Unless otherwise specified, the 4^th Defendant shares responsibility for that meaning.

The 1^st Claimant

j. that he had abused his right to review the Hawking book, by using the review to promote his own book;

k. that he had falsely claimed to have scientific proof in his book for the existence of God, when in fact no scientific sources are relied on;

l. that he had failed his university course in film studies; I reject unhesitatingly the 1^st, 2^nd and 4^th Defendants' contention that it is not capable of being defamatory to say that someone has failed his degree.

(All the above are derived principally from the 4^th Defendant's originating review.)

m. that he was failing financially in business (Comment 11, not the 4^th Defendant's);

n. that he had engaged in a pretence by reviewing his own work (Comment 40, not the 4^th Defendant's).

The 2^nd Claimant

o. that it was failing financially in business (Comment 11, not the 4^th Defendant's).

73. As to the other passages and allegations complained of, I have already indicated why it is not capable of being defamatory of either Claimant to allege that the 2^nd Claimant company is "run out of a bedroom" or set up to publish one book, as alleged in the originating posting. The allegation in the review that he is informing the police and taking legal action is likewise not capable of bearing a defamatory meaning in this context, those being his rights. And the references to him as a creationist or fundamentalist are not capable of being defamatory in their natural and ordinary meaning; see [63] above.
74. The other comments complained of, though unpleasant, are plainly vulgar abuse which would carry no weight with an internet reader of this website:

- "nutter" (Comment 1);

- "please continue to kick him in the goolies [as that is how he is treating you]" (Comment 1);

- "Let him hang himself" (Comment 11) plainly in context not literally intended;

- "clown" (Comment 15);

- "the usual wingnut drivel" (Comment 17);

- "fool…idiots…hurts their brains" (Comment 27);

- "a try-on by a disreputable idiot" (Comment 28);

- "a chancer" (Comment 33).

75. For these reasons the pleaded natural and ordinary meanings relied on against the 1^st and 2^nd Defendants (and the 4^th Defendant insofar as he is the author of the passages giving rise to them) are again rhetorical and far-fetched, and they and the words complained are liable to be struck out except insofar as they are within the limits of [72] above.
76. The Dawkins Website; Legal Innuendo Meanings. A legal or true innuendo gives rise to a further cause of action, separate from that based on natural and ordinary meaning. As already stated, the Dawkins website (unlike Amazon's) is directed at a group of people with a well-defined special interest and indeed a definite intellectual position within it. It is therefore entirely possible that its readers, or many of them, may share specific knowledge or a specific jargon so that particular words or phrases convey something different to them than to the general reader, that is, a legal innuendo. In his Particulars of Claim, C refers for this purpose to the tags CREATIONISM, DISHONESTY, FLEAS, IRRATIONALITY, LAW, STEPHEN HAWKING and WINGNUTS annexed to the thread. He pleads (and it must be accepted at this stage of the case) that (to summarise):

a. Prof. Dawkins has adopted a quotation from W.B. Yeats about his imitators, "But was there ever dog that praised his fleas?" to belittle a theologian who wrote a book with the name "Dawkins" in the title, and his followers are well aware of this as a pejorative epithet for his critics;

b. the Dawkins website contains many harsh criticisms of creationists as "superstitious", "drooling morons", "the lunatic fringe of religious people" and so forth, and again its readers are familiar with this usage.

77. The question is whether a reasonable reader of the Dawkins website, familiar with these matters, would or might as a result attribute to the words "creationist" and "fundamentalist" or the other criticisms of the Claimants made on that website a defamatory meaning different from or stronger than that which would be applied by a reader of the same words without that knowledge. The legal innuendo meanings proposed by C at Para. 38 of the Particulars of Claim are as follows:

- "the Claimants are not merely as inhuman and repugnant as fleas, they are in fact fleas;

- they possess clear mental instability and intellectual feeblemindedness;

- they are lying fundamentalist creationists lacking moral and ethical integrity".

78. The fallacy in the Claimants' approach to legal innuendo meanings is that it disregards the fundamental rule that for defamation purposes words bear a single meaning, which is that of the reasonable, right-thinking reader. Knowledge of legal innuendo facts may lead a particular group of readers to a different meaning from that apparent to the general public; but it must remain a meaning which a reasonable person knowing those facts would perceive. For example, if A tells B, a racist, that X is black (or tells him something about X which when added to other information about X in his possession leads him to conclude that X is black), then the racist may draw various adverse inferences about X's character and think the less of him. But that would not be the conclusion of a reasonable or right-thinking person possessed of the same knowledge; so A's words would not become defamatory by reason of his hearer's unreasonable prejudices.

I do not of course mean to suggest by this analogy that the followers of Prof. Dawkins are to be compared with racists. But C does, broadly speaking, take that line. It is his case that the typical reader of the Dawkins website is so prejudiced against religious believers that, upon hearing that a person is a believer or a creationist, he will automatically assume that that person has the negative characteristics stated in the innuendo meaning set out at [77] above. This may not be true; but even if it is true, it is not enough to establish a legal innuendo meaning.

79. In respect of "fleas", no reasonable person, whatever their knowledge or belief-system, would think that the use of that word in connection with C conveyed the exaggerated meaning alleged; and in respect of "wingnuts" C does not appear to be suggesting that it conveys anything more than its dictionary meaning, which could not be an innuendo. For these reasons the innuendo claim fails against both the 1^st and 2^nd Defendants.
C. DAMAGES ISSUES
80. As a matter of law, the Defendants take objection to two aspects of C's claim for damages:

a. the contention that the 2^nd Claimant company is entitled to aggravated damages;

b. the contention that both Claimants are entitled to exemplary damages.

81. In respect of aggravated damages, the law is clear. Libel damages are intended to compensate for injury to reputation, to act as a public vindication, and to take account of the distress, hurt and humiliation which the libel has caused. (See John v. MGN [1997] QB 586, CA, cited in Duncan and Neill, supra, at 23.07.) Since a limited company has no feelings, it cannot recover aggravated damages; see Collins Stewart v. Financial Times [2006] EMLR 5, Gray J. This is a long-established principle, and C has produced no good reason to doubt its authority or its correctness. (He refers to "religious aggravation"; while disrespect to his religion might well cause aggravation to a human being, a company cannot have a religion.)
82. In respect of exemplary damages, C's arguments merit closer consideration. The two relevant situations in which exemplary damages may be claimed are:

a. oppressive, arbitrary or unconstitutional action by servants of the government;

b. the deliberate commission of a tort with the intention of gaining some advantage which will outweigh the compensation otherwise payable.

(See Duncan and Neill, supra, at 23.33.)

Much of C's pleading and argument on this issue goes to the alleged malice of the 1^st, 2^nd and 4^th Defendants (he accepts that Amazon's moral guilt is less); but malice alone, absent one of those elements, only gives rise to aggravated damages, not exemplary.

83. As to head (a), C argues that charities are bodies of a public nature, and often discharge public functions, so that the same principles should apply to their conduct as to that of governmental bodies. I remind myself that if this issue is in any way fact-sensitive it would not be appropriate to dismiss it at the outset, before even pleading and disclosure. However, I hold that it is plain and obvious that the facts that charities have to be registered with a public body, and do work of public benefit, do not of themselves give charities a public character, let alone a governmental one, in the sense that those concepts are used in relation to liability for exemplary damages.

I do see plenty of room, in a world where government delegates many of its established public functions to charities (in the spheres of housing or health-care for example), for an arguable exemplary claim against a charity if it was acting as an agent of government in committing the act complained of. That is because the purpose of this head is to provide a deterrent sanction against the abuse of public power, especially when that abuse is backed by the public purse and the individuals responsible are hard to call to account.

But there is no sense at all in which the 1^st and 2^nd Defendants (let alone the 3^rd or 4^th) are exercising public power when they criticise religion or advocate atheism. A charity of this sort is essentially a private vehicle by which its supporters can educate and inform the public about their standpoint, which very often, and perhaps particularly in this case, will be one which bears no relation to any governmental policy or interest. Such a charity has no power except the power of its ideas. I therefore conclude that it is plain and obvious that head (a) has no application to this case.

84. As to head (b), C again concentrates mostly on the 1^st and 2^nd Defendants, and contends that their policy is to further their cause, and raise funds to do so, by vilifying those who argue against them. Their response is, firstly, that the law requires that the tort be committed deliberately for financial gain. I am not satisfied that this is correct. The editors of Duncan and Neill, supra, carefully use the phrase "some advantage", though they indicate at 23.35 that it needs to be a "material" one. They quote an observation of Lord Wilberforce in Cassell v. Broome [1972] AC 1027 that he was far from convinced that Lord Devlin (in Rookes v. Barnard [1964] AC 1129) ever intended to limit punitive damages to cases where a profit motive was shown. I am not aware that the outer limits of "advantage" have yet been authoritatively defined so as to warrant striking out on this point alone.
85. The Defendants are on firmer ground with their other two objections:

a. that the anticipated advantage in question needs to be derived from the commission of the particular tort, not simply from a general course of business (see the authorities cited by Duncan and Neill at 23.35, note 7); and

b. that the defendant must both know or be reckless that his words are tortious (i.e. not merely defamatory but unlawful) and consciously decide to go ahead having calculated that the chance of advantage outweighs the chance of penalty.

Nowhere in his pleadings or arguments does C put forward a credible case, let alone any evidence, that either of these requirements is fulfilled in the case of any of the Defendants. It is difficult to envisage how the two website campaigns in question, criticising so little-known a target to so small an audience, could materially advance the cause of atheism or damage that of religion; and (unusually) the question of potential libel liability is actually discussed extensively in several of the threads complained of, including the first Dawkins website publication, but always from the standpoint that the publications are justified in the legal and/or popular senses rather than that "we know it's wrong but we can get away with it (and it's worth it even if we don't)".

For these reasons, I conclude that it is already clear that these claims for exemplary damages are misconceived and bound to fail, and that they should therefore be struck out.

86. Finally on the subject of damages, it is relevant to the Jameel abuse of process arguments, about to be considered, to refer briefly to another matter pleaded by C under the damages heading. He refers to a potentially valuable trademark "20XII", apparently owned by the 1^st or 2^nd Claimant. But as I read the pleading, he is not contending that the value of that trademark or of the company's business in relation to it has actually been damaged as a direct result of these website publications. He fears that it may be, and therefore seeks an injunction; and he refers to the distraction which his involvement in this litigation is causing to the company's pursuit of that business. In the absence of a claim for special damage, it does not appear to me that that matter is one which adds much weight to C's case in respect of the Jameel issues.
D. ABUSE OF PROCESS
87. All four Defendants invite me to strike out the claim as an abuse of process, under the by now well-established principles first set out in Jameel v. Dow Jones [2005] QB 946, CA. If it can be shown that there has been no real and substantial tort in this jurisdiction, and/or that the Claimant has no prospect of obtaining any damages or other valuable relief proportionate to the resources likely to be expended on the trial, then the action may be struck out as an abuse of process. This is however a jurisdiction to be exercised with the greatest caution, since if misused it would deprive the Claimant of both his Article 6 right to a fair trial and his Article 8 right to protection of his reputation. As stated by Eady J in Kaschke v. Osler [2010] EWHC 1075 (QB) at para.22 "…the court must be vigilant to recognise the small minority of cases in which the legitimate object of vindication is not required or at least cannot be achieved without a wholly disproportionate interference with the rights of the defendants".
88. In support of the contention that this is such a case, the Defendants point me to the following factors:

a. the limited extent of publication (in the case of the Dawkins website but not the Amazon one);

b. the limited defamatory meanings (in the light of my rulings on that issue above);

c. the limited margin between the truth about the Claimants' activities, as admitted by them, and the defamatory stings of which they may properly complain;

d. the mitigating/extinguishing effect of the Claimants' own publications and responses on Amazon (but not on Dawkins);

e. in the light of all the above, the limited remedies which the Claimants may expect by contrast with the considerable anticipated costs of trial.

The Claimants of course maintain that there are triable issues on all of these points, and that they have a real and substantial case both for worthwhile damages and for an injunction restraining all the Defendants, but in particular the 1^st, 2^nd and 4^th, from repeating these or similar allegations in the future.

89. As to extent of publication within the jurisdiction, Amazon has not sought to rely on this ground whether by evidence or in submissions. It is clear from the threads themselves that a modest but appreciable number of people other than C and the 4^th Defendant either actually participated in the online debate or read it and posted their "vote" on whether they found it helpful; and that is likely to be the tip of the iceberg.
90. The 1^st and 2^nd Defendants have put in evidence about the extent of publication. Again, the debate itself had about 13 active participants (some or all of them likely to be within the jurisdiction). The 1^st and 2^nd Defendants' technical evidence is that between 147 and 303 devices within the jurisdiction downloaded at least some of the thread, though by the end the number was down to 45. The number of actual readers may have been less. This sets a lower limit for readership of the words complained of; but though it is relatively small I would not regard it as minimal, especially given the likelihood that most of those who read it shared C's interest in the science/religion debate, though probably not his views on it. (However, these Defendants also correctly observe that C has never alleged that any readers of their website have actually contacted him or had any connection with him; the same is true in respect of Amazon.)

C has put forward evidence that the world readership of the .net site as a whole is of the order of 200,000; while of course the number who read it in this country, and the number of those who read the particular discussion strand complained of, are likely to be much less, this casts doubt on the 1^st and 2^nd Defendant's figures. He also points out that in relation to any website publication of this sort one must allow for a considerable degree of foreseeable republication by users of the original website.

It follows that in respect of each website I should approach abuse of process on the basis that the number of readers of the words complained of is certainly not so small that the claim should be dismissed on that ground alone, and indeed may be a good deal larger than the Defendants contend. However, the points considered below are of similar force whether the number of readers is small or relatively large.

91. As to the gravity of the defamatory meanings, I refer to the meanings (underlined and lettered a-o) which I have found the words to be capable of bearing, as set out at [62] and [67] (Amazon) and [72] (Dawkins). Though not of the utmost gravity, nor as serious as C would contend, they are by no means trivial allegations.
92. However, an important issue in this case, as for example in Kaschke (supra), is the extent of the marginal damage to C's reputation caused by the words complained of, in the light of what C has himself published or otherwise admitted. Since this exercise involves predicting the likely prospects of success of defences which have not even been pleaded yet, it must be carried out with extreme caution, and based only on C's own admissions read as narrowly in his favour as is possible. Nevertheless certain matters are clear beyond argument:

i. C did seek to promote sales of his own book by means of false reviews, purporting to be the favourable reaction of real independent readers when in fact he had written them himself.

ii. He did seek to take advantage of the reputation of Prof Hawking (a disabled man) to promote his own book, by inserting a puff for his book into the Amazon site for the Hawking book under the false guise of a review of that book.

iii. He did participate in the online Amazon debates using false identities purporting to be real people agreeing with and defending him, when in fact they were just his aliases.

iv. The book is published by his own company, which is a very small business that has only published his book and has no independent premises of its own.

v. The book contains no scientific source references to back up its purported scientific contentions.(This is admitted by C at para. 72.2 of his submission dated 8 November 2011, in which he refers approvingly to his own Yahoo review of his book, again pretending to be independent.)

93. In the light of these very material admissions, it can already be stated with confidence that, in respect of each of the following potential defamatory meanings, a., b., e (i), g., h., j., k., n., and o., as set out above :

i. The respective Defendants answerable for that meaning are overwhelmingly likely to succeed in defending it on the basis of justification and/or fair comment/honest opinion.

(In reaching this conclusion so far as comment/opinion is concerned I bear in mind the live issue of malice, particularly against the 4^th Defendant, but also the rule that in this context "malice" refers only to the putting forward of an opinion which one does not genuinely hold; see Cheng v Paul [2001] EMLR 31. Given that Mr Jones is clearly a person who holds strong opinions of his own on the matters in question, and that in the light of the matters at [92] above there is a strong factual substratum on which his comments/opinions could be based, proving his malice in this strict sense would be a very challenging exercise. Although C has asserted his insincerity he has not indicated any facts or matters which point clearly towards it, as opposed to malice in the wider and more popular sense of hostility or spite.)

In addition, s. 5 of the Defamation Act 1952 would be likely to operate to improve the Defendants' prospects of success on liability even in respect of the remaining allegations of fact not directly covered by the admissions.

ii. If, contrary to (i) above, such defences should not succeed completely in respect of one or more of those allegations, the effect of the admitted facts and matters at [92] above would be to reduce the damages recoverable for them, probably to a very low or even nominal level.

94. In respect of the Amazon website, and the 4^th Defendant's contributions to it, a further important consideration arises, similar to that referred to by Eady J at para. 10 of Kaschke (supra) when he said:

"At all events, the publication of the "right of reply" is a relevant factor to take into account when assessing the application based on abuse of process."

In this case, we are not dealing merely with a reply by a claimant to allegations previously published by a defendant. As set out at [55] – [58] above, C actually began Amazon Thread C with his spurious review of the Hawking book, inserted himself and his own book into Thread D, and attacked the 4^th Defendant on Thread G before the latter had played any part in it. In each of these cases, but particularly Thread C, the Claimants participated fully in the debate on that thread and had full opportunity (which they frequently took) to answer the criticisms made by the 4^th Defendant and others. Only in Thread H did C play no part. This participation by C will not only have a substantial effect on any jury's assessment of the actual defamatory meaning of the words complained of (particularly where the 3^rd Defendant's liability is concerned), but it will certainly operate as a very substantial mitigation. It raises an obvious question: what real and substantial need does C have for a vindication through the courts, when he has already put his case to the original audience at the time of the original publication?

95. So far as remedy is concerned, the above considerations lead to the conclusion that if C recovers any damages they will be minimal by comparison with the very substantial costs of bringing the action to trial. For example, Amazon has put in bills suggesting that its costs for these applications alone already exceed £70,000; and the Claimants' pleadings and submissions are so voluminous and randomly organised as to suggest that the action will be a long and complicated one.
96. As to injunctive relief, there is no reason to suppose that the 1^st or 3^rd Defendants are likely to defame the Claimants in the future, at least not deliberately so as to be deterred by an injunction or liable in contempt for breaching it.

The position is by no means so clear where the 2^nd and 4^th Defendants are concerned. The 4^th Defendant's intellectual and personal hostility to the Claimants (not the same thing as malice vitiating comment/opinion) is apparent from his postings; and the .net forum (for which the 2^nd Defendant may well have been liable and might be again) is a natural home for attacks on those holding C's views, and is not fully moderated so as to exclude defamatory comments.

97. At this point, it may be helpful to set out again those defamatory allegations which I have found the words to be capable of bearing, and in respect of which there may not be a good substantive defence. (I ignore for this purpose the issues of the 3^rd Defendant's liability for publication, and the mitigating effect of C's published responses, since those are not relevant to the question of future repetition by the 2^nd or 4^th Defendants.) They are:

On the Amazon website:

c. that the 1^st Claimant acted improperly by contacting one of the 4^th Defendant's Facebook friends and seeking to coerce personal information about the 4^th Defendant from them;

d. that he falsely claimed to the police that he was an employee of the 2^nd Claimant when he was not;

e (ii). that his claim to have written the book as a parody when he was dying is ridiculous;

f. that he is a liar who falsely claims not to mock non-believers, when in fact he is so hostile to the 4^th Defendant's atheist views that for that reason he threatened him with police and legal action;

i. that he is a charlatan because he makes unfounded threats of legal action

On the Dawkins website:

l. that he had failed his university course in film studies.

98. As to the above allegation concerning the university course, both the 2^nd and 4^th Defendants have offered undertakings to the Court not to repeat that allegation, and in those circumstances no useful purpose would be served by pursuing the claim against either of them for injunctive relief in that respect. That is an end of the claim against the 2^nd Defendant.

The 4^th Defendant has not offered any undertakings in respect of the above allegations published by him on Amazon (for which the 3^rd Defendant is not liable). Further, it appears likely, given his apparent hostility to the 1^st Claimant, and the fact that he has recently made further internet publications concerning this case, that he wishes to continue his campaign of criticism of the 1^st Claimant (as may be his right).

In these circumstances, unless such undertakings are offered, his application for summary judgment will be allowed only in part, and the action will continue against him alone for the purpose of injunctive relief against republication of those allegations. [At the handing-down of judgment the 4^th Defendant indicated that he was reconsidering the question of undertakings and I have granted time for him and C to consider this further.]

99. My conclusions in relation to the abuse of process applications, in the light of all the above considerations taken together, are as follows:

a. The 2^nd Claimant company has no claim against any of the Defendants worth pursuing, and its claims should therefore all be struck out.

b. The 1^st Claimant's claim against the 3^rd Defendant (already dismissed by virtue of the reg.19 defence) should also be struck out as an abuse of process. In this decision I give particular weight to the 1^st Claimant's admissions and to his own active participation in most of the Amazon publications.

c. For the same reasons, the 1^st Claimant's claim against the 4^th Defendant for damages in respect of his Amazon publications should be struck out.

d. In respect of the Dawkins website publications, there is no credible claim for damages, proportionate to the costs of the action, against any of the 1^st, 2^nd and 4^th Defendants, particularly in the light of my rulings on meaning and the 1^st Claimant's admissions. The only surviving allegation is a relatively trivial one by comparison with what the Defendants will be able to prove against the Claimants.

e. The 1^st Claimant has no credible claim against the 1^st or 2^nd Defendant for injunctive relief either, and the claim against them should therefore be struck out (upon the limited undertaking by the 2^nd Defendant referred to above).

f. As indicated, the action will continue against the 4^th Defendant for the purpose of injunctive relief, to the extent indicated above, [subject to satisfactory undertakings being offered], the balance of the claim against him being struck out.

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