Richardson v Facebook [2015]

In Richardson v Facebook [2015] EWHC 3154 (QB) (02 November 2015) the Claimant sought very substantial pecuniary and non-pecuniary damages for libel in respect of a fake profile of her on facebook and a blog on Google, both of which she claimed were created by an imposter.The Claimant issued proceedings against Facebook and Google on the 9th January 2015. She claimed they were defamatory of her and breached her Article 8 rights under the ECHR, a right to respect for her private life.Both claims were dismissed by Master Kay QC on the 24th and 26th June 2015. The Claimant sought to appeal the orders made by him.

Mr Justice Warby, who noted the Claimant had now changed her name, examined and considered the main issues raised by the Claimant, who had also issued an application for permission to put forward new evidence on appeal.

He took into account the new evidence referred to in the Claimants applications which he said consisted of job advertisements placed by FBUK and Google UK after the hearing before Master Kay QC.

He made reference to a third set of proceedings, the Manchester Action, which, although not before him, were relevant by way of context and had been brought by the Claimant against Google Inc and Google UK. Permission to serve proceedings on Google Inc outside the jurisdiction was granted, which is when Google UK became aware of the proceedings. On the 14th October 2015 Notice of Discontinuance was received by Google UK but had not been served on Google Inc.

On the Facebook application, Master Kay’s order read “”3. The claim form and particulars of claim are stuck out and the claim is dismissed pursuant to CPR 3.4(2)(a), (b) and/or CPR 24.”

Mr Justice Warby considered whether there were any arguable grounds of appeal against Master Kay’s order and observed that the first and second grounds of appeal could be dealt with together.

The claimant suggests that she complied with the Master’s order of 9 February by sending amended particulars by post on 16 February; that she should have been given some leeway on the matter of party identity, having issued against ‘Facebook’ without realizing the implications of using an abbreviated version of the defendant’s name; and that the Master failed to consider properly or at all the exercise of his discretion”.

He considered Master Kay was correct. An application had not been made to amend the name of the Defendant, he believed the Claimant had acted unreasonably in not dealing with this matter. He did not consider that the Claimant’s written grounds of appeal dealt with the Master’s second and third procedural grounds. He saw some merit in her points noting she had not complained of the reliance placed on her failing to attend the hearing which Mr Justice Warby did not consider a reason to dismiss her claim.

He found the Claimant had failed to plead a reasonable case of legal responsibility against FBUK and the second decision correct, there was not a realistic prospect that the Court would find FBUK responsible for the publications.

He found two parts to the claim: Libel Claim and Article 8 claim.

In the Libel Claim, he considered the Master correct in finding there was not a basis for a libel claim as, in defamation claims, the burden falls on the Claimant to prove that the published article complained of is the responsibility of the Defendant. In this claim the draft statement did not say. The Manchester Action had demonstrated she was able to follow the procedures for claims against foreign companies. He considered the objective was for this claim to end.

The Claimant also contended that the Master had been wrong to dismiss the libel claim on the grounds of limitation. Mr Justice Warby noted this was raised by FBUK in their Skeleton Argument to the Master, based on “the “single publication rule” provided for by s 8 of the Defamation Act 2013, “where a person publishes and then republishes substantially the same statement, any cause of action is to be treated for limitation purposes as accruing at the date of the first publication”.

FBUK contended the January 2014 publication was the same as May 2013 with the limitation period ending in May 2014, 8 months before the claim was issued.

The Claimant argued the Master had not addressed her Article 8 claim. Mr Justice Warby acknowledged it was separate from the defamation issue. He did not agree the Master had not considered it as it had been pleaded in the draft Amended Particulars of Claim and the Skeleton Arguments.

Mr Justice Warby observed that in 3 and 5 of the grounds of appeal, the Claimant had argued that FBUK could be held responsible for the publication of the profile, therefore, liable for defamation within the Human Rights Act and with reference to the Google Spain case. He considered the Claimant needed permission to pursue this. As it had not been raised before the Master, there was no objection on that ground.

He noted the core of the argument was that the Google Spain case meant FBUK could be held responsible for the publication if Facebook Inc and subsidiaries are viewed as one economic unit which he thought misconceived. He did not consider the decision had any bearing on the law of responsibility in defamation or in settling a dispute as to a Defendant being in breach of Article 8 and the Human Rights Act 1998.

He continued

“It is therefore nothing to the point for the claimant to draw an analogy between the role of Google Spain within the Google corporate structure and that of FBUK within Facebook. At best, such an analogy would lead to the conclusion that data processing activities of Facebook Inc or, more likely, Facebook Ireland Ltd undertaken in England and Wales are carried out “in the context of” advertising and other activities by FBUK in this jurisdiction, so that they are subject to English data protection law. That would lend no support to the claimant’s case against FBUK”.

Mr Justice Warby considered the Google Action a more straightforward version of the Facebook claim where he noted the Blogpost had been around as early as October 2013 and which had come to the Claimant’s notice in January 2014.

Googles Solicitors wrote to the Claimant on the 26th January 2015 saying she had brought proceedings against the wrong entity and inviting her to withdraw her claim and if she did not then they would apply to strike out. She replied that she would not discontinue. On the 9th February 2015, Google UK issued an application to strike out or for summary judgment.

Master Kay QC on the 26th June 2015 heard the Claimants amendment application at the same time as Googles application which he dismissed granting Googles’ application, refusing permission to appeal.

Mr Justice Warby considered there to be four grounds of appeal with matters similar to those in the Facebook action.

Firstly, Mr Justice Warby examined the argument that the Master’s decision was not in keeping with the Data Protection Directive and Google Spain. He considered this was based on a misunderstanding of the Google Spain decision.

Secondly, the Master’s decision did not take into account the Claimant’s human rights under Articles 8 and 13 of the Convention. He considered the Master to be correct, there was no reason for a claim under the Human Rights Act against Google UK and no distinction between the position of Google and Facebook, each of them provided “a valued commercial service, for commercial motives” and neither one of them could be said to be performing a public function under s.6. of the 1998 Act.

Thirdly, the Master “wrongly relied on section 1(1) of the Defamation Act 2013 [sic] and should have exercised a discretion conferred by section 10(1) of the Defamation Act.” and further, “Failed to consider that pursuant to section 5(3)(a),(b) and (c) the respondent has no defence and acted unreasonably with regards from notification of the defamatory and confidential material published on Google Search [etc.]”.

Mr Justice Warby noted that a Claimant had to establish the Defendant was responsible for publication. In this matter, Google UK was not the publisher. He continued that the 1996 and 2013 Acts were immaterial and most likely why they were not relied upon by Google UK or Facebook.

The Claimant contended she had raised complex matters which the Master had not dealt with adequately. Mr Justice Warby disagreed, he observed that the Master had given great thought and deliberation to his decisions which he considered “unappealable” and the matter had been complicated by the Claimant before Master Kay, particularly on the applications. He found The Permission Issue decided against the Claimant.

With regard to the Reference Issue, Mr Justice Warby observed that the Claimants three applications were not dissimilar from the Facebook Action and dismissed them for the same reasons, “Accordingly, the Stay and Anonymity Issues fall away”.

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