Wednesday, January 28, 2009

Carrie v Tolkien

The Carrie v Tolkien blog defamation case ruling is now online at BALII. A Christopher Carrie has apparently written a book claiming a Catholic priest who was a member of the Tolkien family (JRR's son, John, now deceased) abused him. He set up a blog under a pseudonym promoting the book. Royd Tolkien (JRR's great grandson) posted comments on the blog identifying Mr Carrie as the author of the book he was praising and saying he (Carrie) was a fraudster with a criminal record (see para 10 of the judgment for the precise details). Carrie sued for defamation but left the comments on the blog. And as Justice Eady says in the decision (also para 10)
"It is interesting to note that at the foot of this posting there appears the comment "the blog owner changed this comment on 2007-03-09 12:05". This appears to be recording the fact that the Claimant deleted the address which had appeared in the original posting, and tends to confirm his capacity to control the website."
And so the ruling goes on, not surprisingly ending with a verdict in favour of Mr Tolkien.
  1. ...there is no realistic prospect of any jury, being properly directed, coming to a conclusion other than that the Claimant consented to and acquiesced in all such subsequent publications. That is in my judgment plainly correct. That leaves the Defendant to address the relatively brief period on 24 February 2007 before the Claimant discovered the posting. There is some doubt, on the Claimant's own evidence, as to when this was. There would appear to be a maximum period of 4 hours and 19 minutes. It is the Defendant's submission that there is no realistic prospect of establishing that any publication at all took place during that window of opportunity.
  2. It would appear to be established that there is no presumption in law to the effect that placing material on the Internet leads automatically to a substantial publication: see e.g. Al Amoudi v Brisard [2001] 1 WLR 113. It is necessary to plead and establish any publication relied upon. There must be some evidence on which an inference can be drawn in relation to that very short period of time.
  3. It will not suffice merely to plead that the posting has been accessed "by a large but unquantifiable number of readers". There must be some solid basis for the inference. That form of pleading is no more than bare assertion.
  4. It may very well be that the Claimant could gain access to the records of visitors to his website. Be that as it may, he has not done so. Without evidence of substantial publication it is submitted that there is no basis for concluding that there was, over the short period in question, the commission of a real and substantial tort such as to justify the deployment of the court's resources...
  5. In the light of my conclusions on these first two matters, the question of exercising a discretion does not arise. Had it done so, I would have declined in any event to exercise my discretion in the Claimant's favour because the claim has no realistic prospect of success for the reasons I have already given.

I can't see how this one could possibly have come out any other way. It is a bit unfortunate that it ever got as far as the courtroom really but the decision is relatively short and well worth a read for the legal geeks out there and is delivered in Mr Justice Eady's, as ever, accessible style.

Update: Outlaw has an accessible report on the case for those less inclined towards reading legalise. Thanks to Glyn via ORG for the pointer.

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