Cyber Bullying in UK Law

Mr Smith, the appellant, was successful some time before late 2005 in setting up an action group to recover compensation for investors in some fraudulently conducted company. Their disaffections were “posted” on the ADVFN Langbar bulletin boards, usually under a pseudonym or an avatar, whatever that means, the appellant's name being “Anonymous”.

It is his case that what he calls a hate campaign which amounts to cyber-bullying has been waged against him as the messages stacked up on this ethereal bulletin board. As they stacked up, so he suggests a profusion of defamatory statements were published about him. He says that some 267 defamatory statements had been made by 71 offenders, though some may be the same person using a different pseudonym.

That may be appropriate in the majority of libel actions, where it is necessary to countenance such interference in order to vindicate the rights of another person in respect of whom a real and substantial tort has occurred. But the court must be vigilant to recognise the small minority of cases where the legitimate objective of vindication is not required or, at least, cannot be achieved without a wholly disproportionate interference with the rights of the defendant(s).

Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject-matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or “give and take”.

When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a “thread” and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.

From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious.

Far from being asked to confer a power on themselves, the High Court was being asked to use its inherent jurisdiction to limit, circumscribe or sanction the use of power which the local authority already has by virtue of section 33(3)(b) CA 1989.