July 26, 2016

The claimant, Samuel Collingwood Smith, was a former borough councillor in Welwyn, Hatfield.  The defendants were users and operators of the website EncyclopediaDramatica.se (ED).  ED was a satirical website that used the Wiki software.  The site was controversial and took steps to anonymise itself.  This enabled the site administrators to hide the country in which the site operated from and the real IP address of the servers.  Editors and staff used pseudonyms.

For some time, the site had published articles about Mr Smith calling him a “zealot” in child protection matters.  Mr Smith operated a blog that, from time to time, dealt with child protection matters.  Mr Smith said that the original publications about him were satirical, but not objectionable.

However, between 10 and 12 May 2016 users/operators of the site known as “KiwiDynastia” and “LikeICare” (an administrator) amended various articles to state that Mr Smith was a paedophile and a child rapist.  The website was accessible in the UK and had been viewed here.  Mr Justice Green said that, in his view, the allegations (which Mr Smith denied) were “vile”. 

Having pursued the online Wiki complaints procedure (and having been told by the website administrators to “F*** Off”), Mr Smith responded by serving a notice pursuant to s 5 of the Defamation Act 2013 and posting a letter before claim online.

Matters proceeded against the second defendant, “KiwiDynastia”, whose real identity was unknown.  Mr Smith applied for default and summary judgment against KiwiDynastia.

Green J noted that a court can provide protective injunctive relief against persons unknown (Bloomsbury Publishing Group Plc v News Group Newspapers Limited [2003] 1 WLR 1633).  It is necessary, however, for the person unknown to be capable of identification by description in such a way as to identify with sufficient certainty those who are included within the order and those who are not.

Green J was satisfied that service of proceedings and the application had been effected and brought to the attention of the relevant people since the administrators of the site had not only responded to pre-action documents, but had also published the same on the internet site itself.

None of the defendants had sought to file an acknowledgement of service or a defence by the deadline, nor had they formally responded in any way, shape or form to the threat of litigation.  “Their heads are well below the parapet”, Green J said.

In Green J’s view, it was both “right and proper” to dispose of the application in the absence of the defendants.  Green J also observed that he had to consider s 12(2) of the Human Rights Act 1998 because the order sought against KiwiDynastia involved relief, which if granted, could effect the exercise of the right to freedom of speech.  Green J found that all of the defendants had been notified and had had an adequate period of time in which to respond.  The failure of the defendants to respond was simply that they wished to remain anonymous and were, in effect, “hiding”.  Therefore, the court had jurisdiction to proceed.  “If I were to refrain from considering whether I should grant relief I would be allowing the Court’s process and jurisdiction to be suborned by an act of mute defiance. In my view, I should proceed to address the application to avoid delay, further costs and therefore injustice”, Green J said.

Overall, Green J was satisfied that the conditions for obtaining judgment in default had been met.

As for summary relief under the Defamation Act, Green J found that there was no doubt but that Mr Smith’s reputation had been “substantially and deleteriously harmed” by the publication of the material concerned and that this had been precisely the intention.  Green J found therefore that it was appropriate to make an order for judgment for damages.  He noted that, pursuant to s 9(1)(c) of the Defamation Act, damages not exceeding £10,000 may be ordered by way of summary relief.  Given the popularity of the website and the “vile and offensive publications” thereon, and the need for vindication, Green J found that it was appropriate to make an order in the sum of £10,000, with liberty for KiwiDynastia to apply within 14 days.

Finally, Green J also considered it appropriate to grant the injunctive relief sought.  (Samuel Collingwood Smith v Unknown Defendant, Pseudonym “LikeIcare” [2016] EWHC 1775 (QB) — to read the judgment in full, click here).