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UK Blogger Can?t Sue for Defamation for Posting on His Own Blog

By IBLS Editor

The UK High Court recently held that a claimant, who was criticized in the comments section of his own blog, cannot sue for defamation, since he could have deleted the comment but failed to do so. Carrie v. Tolkien [2009] EWHC 29 (QB) (15 Jan. 2009). The court noted that the plaintiff could have removed the offending comments posted on his own blog, which he saw four and a half hours after they first appeared.

Carrie was the author of a self-published book in which he claimed having been sexually abused by Father John Tolkien, the son of writer JRR Tolkien. Carrie created a blog in 2007 and published a post under a pseudonym promoting his Web site and his book. JRR Tolkien's great grandson, Royd Tolkien, posted a comment on the site claiming that Carrie was a fraud who was attempting to victimize the Tolkien family. Carrie wrote a denial of the comments but did not remove them.

A central issue in the case involved whether other readers had seen the remarks before Carrie became aware of them. The court relied on Al Amoudi v. Brisard [2001] 1 WLR 113. In Al Amoudi, comments were published online stating that the claimant had links to the financing of Osama Bin Laden's terrorist activities. There, the court held that the claimant must prove publication, i.e., that the material was accessed and downloaded by others. Under American law, the consent of another to the publication of defamatory matter concerning him is a complete defense to actions for defamation. Restatement (Second) of Torts sec. 583. For example, in LeBaron v. Minnesota Board of Public Defense, 499 N.W.2d 39, 42 (Minn. App. 1993), a former employee wrote to the state public defender charging improper termination. Deprecatory statements were made in a response letter that explained the reasons for the discharge; this letter was privileged.  Yet, the former employee"s letter amounted to consent to or acquiescence in the employer's otherwise potentially defamatory response.

In France, the Netherlands and Denmark, for example, libel is both a tort and a criminal offense. In Germany, defamation is principally based upon criminal law. There are three different concepts of defamation; insult, a slanderous statement which may be true, and intentional defamation known to be untrue. There is no need to prove publication; injury to feelings may be sufficient. Publication of the insult increases the injury, but it is not a required element of the offense. Civil law defamation developed from the Roman acto injuriarum, which focused on the intentional and unjustified hurting of another's feelings more than damage to public reputation. Nevertheless, consent is a defense, provided the defendant acted in good faith. Delay in removing a blog post may not amount to acquiescence if it was due to illness, or technical failure (for example if an Internet server was down). Consent may be vitiated if it was wrongly obtained by fraud or duress. That was not the case in Carrie v Tolkien.

Full post as published by IBLS Internet Law Blog on August 26, 2009 (boomark / email).