Case Law: McGrath v Dawkins – creationism, atheism and internet forums, where libel law should fear to tread

18 04 2012

The full judgment in the libel case of McGrath v Dawkins which was handed down on 30 March 2012 is now available ([2012] EWHC B3 (QB)).   The claims was brought against an atheist blogger in respect of reviews on Amazon.co.uk and on an internet forum said to be run by a UK body, the Richard Dawkins Foundation for Reason and Science.  It has attracted widespread comment on the internet as an example of an abusive libel action (see for example, this post on the Ministry of Truth blog).

Background

The Claimant, Chris McGrath, wrote a book entitled  ‘The Attempted Murder of God: Hidden Science You Really Need to Know” under the pen name “Scrooby” which appeared to argue that modern science proved the existence of God (although Mr McGrath later contended that it was, in fact, a parody).  In order to generate publicity for his book Mr McGrath posted a review of a book by Professor Stephen Hawking on Amazon.co.uk which gave details of his own book.

This “review” generated a long thread of comments many of which were critical of “Scrooby”.  Mr McGrath participated in this thread using a number of different identities – of the 60 posts on the thread 19 were by Mr McGrath using various identities (Judgment [5]).

The Fourth Defendant, Vaughan Jones, was one of the most active participants in this thread.  Mr Jones is an atheist blogger and tweeter (@vaughanjones82).  The Judge described Mr Jones’ contribution to the debate in these terms

“in addition to expressing his own opinions on the topic, and his criticisms of Scrooby’s views (of which in general C does not complain), Mr Jones went further in two main respects: by investigating and “exposing” C personally as the real author of the book, and criticising him and his company with such words as “fraud” and “phony”; and by characterising C as a “creationist” … (Mr Jones caused C particular and understandable distress by naming C’s two young children in a pejorative context, which he now accepts he should not have done.)” [7]

In September 2010 Mr Jones opened what the Judge described as “a second front” by commencing a thread on the website richarddawkins.net.  The Judge described what happened in the following terms

“Mr Jones submitted an originating article entitled “Dare to criticise a creationist? Be prepared to be sued…” in which he gave his version of his ongoing exchange with C/Scrooby on the Amazon website. This was approved by one of the moderators (there is an issue as to which) on Sunday 12 September 2010. There followed over the next four days until 16 September 2010 a thread of some 40 comments in response to Mr Jones’s original entry, including his own further contributions” [11]

On 1 April 2011 Mr McGrath and his company issued proceedings against Professor Dawkins, the Richard Dawkins Foundation for Reason and Science, Amazon and Mr Jones.

All the Defendants sought the dismissal of the claims on various grounds including that they were an abuse of the process bearing in mind the allegations made, the extent of the publication within the jurisdiction and the extent to which the defamatory meanings were true even on the Claimants’ account.

Judgment

After dealing with the background (Judgment [1] to [15]), the Judge dealt with four general issues: responsibility for publication, meaning, damage and abuse of the process.

As to responsibility for publication: Professor Dawkins and his UK Foundation argued that, on the facts, they were not publishers, Amazon relied on section 1 of the Defamation Act 1996 and reg. 19 Electronic Commerce Regulations 2002 (the “hosting” defence).

The UK Foundation contended that it was not responsible for the publication of the forum on which the material was published which was part of a similar but distinct US website, operated by a different entity.  However, its summary judgment application failed because of a hyperlink from the UK site to the US forum.  The Judge held that

“The law on liability for hyperlinks is in a state of some uncertainty at present. Even if the general English rule were to be as recently held in Canada, that a mere hyperlink does not render the operator of the linking website liable for the content of the linked site, the decision may well be a fact-sensitive one, especially when, as here, the two websites are very closely associated, the link is hidden, and the point of contact is the “Home” button which is normally regarded as taking you to the central hub of the same website you are already on. I therefore conclude that I am not satisfied at this stage that the 2nd Defendant was not answerable for the .net forum at the material time, and that it is a question fit for trial”. [26]

In relation to Professor Dawkins, because it was not entirely clear whether he had authorised Mr Jones’ original publication on the forum, his application for summary judgment was also refused [28].

In relation to Amazon, its application for summary judgment under section 1 was unsuccessful [44].  It was, however, entitled to rely on the defence under regulation 19.  The Claimants had not clearly specified the location of the postings of which they complained and had not disclosed facts or circumstances making it apparent that the postings were unlawful ([47] and [48]).   As a result, the claim against Amazon was struck out.

The second issue concerned the defamatory meaning of the allegations made.  In relation to the comments published by Mr Jones on Amazon, the Judge that Mr McGrath had a sufficient case that it is capable of bearing the following meanings defamatory of him personally:

“a. that he has behaved unethically by trying to piggy-back off the success of others (Comment 20);

b. that he is an intellectual fraud because he fakes reviews, seeks to generate fake interest, piggy-backs off the success of others and is for these reasons intellectually dishonest (Comments 20, 35,);

c. that he has acted improperly by contacting one of Mr Jones’s Facebook friends and seeking to coerce personal information about Mr Jones from them (Comments 30 and 35);

d. that he has falsely represented to the Police that he is an employee of the 2nd Claimant company when he is not (Comment 41, read in the context of Comment 37 in particular);

e.(i). that the scientific views in his book are ridiculous;

e.(ii). so is his claim to have written his book as a parody when he believed that he was dying (Comment 44)” [62].

Although the words complained of were capable of bearing the meaning that Mr McGrath was  “a creationist, a dogmatist, a Christian, a Catholic, and a person who seeks God through one religion only”  these allegations were not capable of being defamatory as they were “known to be shared by many well-respected members of society” [63].

The Judge went on to hold that other threads made the following allegations about Mr McGrath:

f. that he is a liar who falsely claims not to mock non-believers, when in fact he is so hostile to Mr Jones’s atheist beliefs that for that reason he threatened him with police and legal action.

g. that he has improperly sought to gain commercial advantage for himself by piggy-backing on the work of a disabled person; and

h. that this conduct can fairly be described as desperate, sick and depraved.

i. that he is a charlatan because he makes unfounded threats of legal action. [67]

A number of other defamatory allegations derived from the material published on the Dawkins Foundation forum about Mr McGrath

“j. that he had abused his right to review the Hawking book, by using the review to promote his own book;

k. that he had falsely claimed to have scientific proof in his book for the existence of God, when in fact no scientific sources are relied on;

l. that he had failed his university course in film studies; I reject unhesitatingly the 1st, 2nd and 4th Defendants’ contention that it is not capable of being defamatory to say that someone has failed his degree. …

m. that he was failing financially in business;

n. that he had engaged in a pretence by reviewing his own work.

The Second Claimant,

o. that it was failing financially in business” [72]

On the third issue, the Judge struck out the claim for exemplary damages on the basis that it was misconceived and bound to fail [85].

The final issue was abuse of process.   The Judge indicated that he would not strike the claim out as an abuse solely on the basis of the small number of readers.  Furthermore, the allegations made were not so trivial as to merit striking out.  The Court had, however, to look at “the extent of the marginal damage to C’s reputation caused by the words complained of, in the light of what C has himself published or otherwise admitted” [92].

The Judge concluded that certain matters were clear beyond argument:

“i. C did seek to promote sales of his own book by means of false reviews, purporting to be the favourable reaction of real independent readers when in fact he had written them himself.

ii. He did seek to take advantage of the reputation of Prof Hawking (a disabled man) to promote his own book, by inserting a puff for his book into the Amazon site for the Hawking book under the false guise of a review of that book.

iii. He did participate in the online Amazon debates using false identities purporting to be real people agreeing with and defending him, when in fact they were just his aliases.

iv. The book is published by his own company, which is a very small business that has only published his book and has no independent premises of its own.

v. The book contains no scientific source references to back up its purported scientific contentions.(This is admitted by C at para. 72.2 of his submission dated 8 November 2011, in which he refers approvingly to his own Yahoo review of his book, again pretending to be independent.) [92]

This meant that in relation to meanings a., b., e (i), g., h., j., k., n., and o., the respective Defendants were “overwhelmingly likely to succeed in defending it on the basis of justification and/or fair comment/honest opinion” [93].   The Judge also took into account the fact of “right of reply” – Mr McGrath had the full opportunity (which he frequently took) of participating in the debate.  Furthermore, damages were likely to be minimal and out of all proportion to costs.

The Foundation offered a limited undertaking which was accepted by the Judge.  However, in the light of Mr Jones’ “intellectual and personal hostility” towards Mr McGrath although the claims for damages were struck out the Judge was prepared to allow the action against him to continue “for the purpose of injunctive relief against republication” of certain of the allegations unless an undertaking not to repeat was offered.   Mr Jones offered the undertaking and, as a result, the action was struck out.

Comment

The first point to be made about this action is that it appears, in the end, to have achieved a sensible outcome.  Many of the claimants’ complaints were dismissed by the judge.  It was found that, in relation to a number of others, the defences of justification and fair comment were bound to succeed.   The other allegations were the subject of undertakings not to repeat by the Defendants.   The judgment contains yet further confirmation that the law provides a high degree of protection for those who simply “host” discussion forums.

But the legal analysis of the judgment is the least interesting aspect of this unfortunate case which involved a huge and disproportionate waste of costs and court time.  Neither of the main protagonists comes out of the case unscathed.  On the one hand, Mr McGrath was using Amazon reviews, under a variety of false identities, to promote his own book.  On the other hand, Mr Jones seems to have gone beyond the ordinary limits of debate in attacking Mr McGrath – both on Amazon and on the Dawkins website.   But although deceptive and discourteous conduct may attract social disapproval the use of libel law in this kind of context is obviously inappropriate and manifestly disproportionate.  Doubtless Mr McGrath was very upset by some of things which were said about him but a full blown libel action is hardly the way to deal with issues of this kind.

The implications for the “libel reform” debate are much less clear.   It is difficult to see how any proposed reform of the law of libel could prevent a claim of this kind being brought.  If, for example, the law took the approach of the Canadian court in Baglow v Smith (see our post here) – to the effect that “public conversations” on such a forum cannot be defamatory – there would, inevitably, still be room for argument.  A determined claimant who was complaining about forum comments would doubtless seek to argue that, in the context, they were defamatory.  The result would be a full blown summary judgment application of the kind that HHJ Moloney had to deal with in this case.  Similar problems would arise in relation to other proposed reforms – for example, a substantial harm test would have to be applied to the detail of the allegations, resulting in a similar hearing.

Two other partial solutions suggest themselves.  Firstly, more effective “complaint and take down” procedures.  It seems that, if the postings complained of this in this case had been subject to closer scrutiny by the host then many of them would have been taken down at early stage.  This might have avoided the escalation which took place.   Second, a strong requirement for early mediation.  Mediation might, in at least some cases, enable parties to avoid the libel courts altogether.

Although, in the final analysis, it is necessary to have a court system to resolve disputes this case illustrates how it is in everyone’s interests to devise mechanisms and procedures to make litigation a matter of last resort.   Rows about bad tempered and discourteous internet comments are not the proper subject matter of High Court litigation.

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11 responses

18 04 2012
Catherine Rowlands (@cjr1968)

You say that meaning “o” was likely to be substantiated but you have not actually set out meaning “o”. I’d love to know what that was given the Judge’s findings that Scrooby was likely to be found to be a liar, an intellectual fraud, ridiculous and unethical!

18 04 2012
INFORRM

Meaning “o” related the Second Claimant. We have now added it.

18 04 2012
McG Productions Ltd And Mr C McGrath

Kindly remove your analysis. This is Crown Copyright, the full context is key and yours is a serious distortion of the judgement that yet again seeks to defame the Claimants. This matter is going to appeal and we would ask that such analysis cease while legal action continues.Let the judgement speak for itself, meanwhile.

18 04 2012
INFORRM

Please let us know if you believe that any part of the commentary fails accurately to report the contents of the judgment.

18 04 2012
Unity (@Unity_MoT)

I guess we can add copyright law to the list of things that McGrath doesn’t understand.

Seriously, the best thing to do with the guy is refer his to Arkell vs Pressdram.

19 04 2012
Paul

Now I always thought that a Judgment handed down in an open court such as this was a “public document”. I must have missed something at law school, thanks for the enlightenment Mr McGrath

22 04 2012
Bob's good eye

Article here about the cost of some research into religious and equality disputes in the courtroom.

http://www.lawgazette.co.uk/blogs/blogs/news-blogs/stating-obvious#comment-15642

26 04 2012
Chloe

Mr McGrath is being censorious, and it is not warranted. Especially as he has published a link on his own (legion) websites to the ‘Crown Copyright’ judgment on Baiili, and has also posted several massive diatribes of his own ‘analysis’ of the judgment. Methinks he wants his cake, and wants to eat it too; he doth protest too loudly.

If he ever had a case – and to be fair, he may have had a case at a very low level – he has confused matters by jumbling his rampant prejudice and mouth-frothing detestation of Jones with facts of law. None of his rantings is presented with legal clarity. His ill-thought-out and rather disingenuous legal arguments have shown him to be totally lacking in understanding of some basic laws, and the importance of case law. Most judges now – even giving him vast latitude as an LiP – would laugh him out of court. I believe he is being extended legal courtesies beyond what is warranted.

Of course he has the right to challenge the refusal to appeal. But he cannot expect to publish his own theories (and, frankly, libels about everyone he believes is prejudiced against him in this case – including the judge) without also expecting others to comment on a case whose outcome is in the public domain.

He also seems to believe that he can with impunity name-call, possibly libel and insult the courts, the judge, the defendants and Jones’s supporters – whom he cannot possibly know – via his ‘Scrooby’ Twitter account, on the basis that it is ‘satire’, ‘parody’, ‘comedy’ and that ‘Scrooby’ is not real. In the same way that McGrath continues to label and libel Jones’s supporters by accusing them of being BNP sympathisers, so I could, in a parity argument (and should I wish to), accuse McGrath of being a paedophile sympathiser by dint of his support for the Catholic church. At least there is proof of paedophilia in the Catholic church, while a proper reading in context of Jones’s alleged BNP postings simply shows the devious, manipulative and untruthful way McGrath has presented selected items. Jones was absolutely, and clearly, arguing on an historical and political basis, on the premise that he might not agree with what those like the BNP might say, but he would not disengage from debate with them, and may even occasionally find common ground. McGrath’s apparent belief that everything in the BNP’s manifesto is racism-based is equally clearly idiotic. For example, is the BBC a racist sympathiser because it lets Nick Griffin appear on Question Time? According to McGrath’s system of beliefs, it appears it would be.

Indeed, ‘context’ is something that McGrath is very keen to stress about his own writings – he needs to look in the mirror.

Anyway, it is clear that assertions of tacit BNP support by McGrath about Jones’s supporters (which he HAS made publicly), and tacit support by McGrath of paedophilia by me (which I have not actually made), respectively are and would be both absurd and unwarranted. That’s why the judge has ignored McGrath’s unfounded accusations about Jones.

McGrath has only being using Jones’s unfounded BNP links to show ‘malice’ in any alleged libel. Again, he totally misunderstands the legal definition of malice in libel. It is not about whether a person is generally malicious or prone to doing bad things – it relates to solely whether the alleged libel was made when the facts were KNOWN to be different. Again, McGrath needs a lesson in basic law.

McGrath also continues to assert that he has been proven to have been libelled. This is not true. No judgment regarding any alleged libels has been made, The judge’s decision was made for the ‘overriding objective’, and he decided that whatever the outcome of any possible trial might be, it was not ‘worth the candle’, one issue against being McGrath’s possibly unethical behaviour as a ‘publisher’ in the case, by writing fake reviews of his own book. One (hopefully genuine) reviewer on Waterstone’s website has complained that he bought the book because of such a fake review. Some might say that borders on false representation for pecuniary gain, or worse.

He also continues to assert that Jones is a ‘proven liar’. Again, no such thing has been proven or accepted. The judge rejected the issue as ‘irrelevant’.

I believe McGrath will seek permission to appeal and thereby possibly attempt to suspend any future enforcement action (assuming he does not pay within the stipulated three months) against the £75,000 interim costs award. Again, that is his right, but looking at the arguments he is posting on his websites, I believe the paucity of his legal submissions (unless he gets some serious legal help) will result in him putting himself and his family through even more pain, and racking up even more costs.

One enormous danger for McGrath seems to have slipped his mind, and it is a serious one. Should he win an appeal and the case go to trial, I believe there would be a raft of counter-claims and further claims against him for libel. That’s why I believe his actions are ill-thought-out and reckless, especially in the context of his family.

In such an event, I wonder if McGrath might invoke the Jameel case law himself as a defence? Any counter-claims and other actions would be just as trivial, unnecessary and unwarranted as this case, but what else could any defendant do in the face of such brazen accusations of being BNP sympathisers? That is a truly scary scenario, one of foolish escalation where only the lawyers come out smiling.

McGrath also appears to believe his Nike case is going well. Actually, it isn’t, in my opinion, having read the adjudications so far. The main points on which he might conceivably win any significant money from the claim have been thrown out. All he may be left with is a pyrrhic victory, if anything, and some relatively small compensation. Which should please him, irrespective of costs, as all along he has bleated about how his cases are more about ‘honour’ than money. Which is bollocks in my opinion.

Outwardly, McGrath appears to be a prize idiot, and utterly, utterly deluded to boot regarding his own importance in the world. Personally, I am starting to fear for his mental state. He has lost all perspective of the importance of himself and his case. He has created demons, like the perfectly legitimate libel reform campaign, that he thinks threaten the world – probably because, so far, their cause has defeated him. That’s like campaigning to ban aeroplanes because an airline once lost your bag.

McGrath claimed in court that his business was not going too well because of the libel case. Well, to pursue the case and effectively abandon his many businesses (some of which appear to have been inactive for a long, long time if the websites and his accounts are anything to go by) was his choice, and his alone. I do not believe this case alone rendered him incapable of being an entrepreneur, as he styles himself. I think he claimed in court about 1200 hours’ costs as an LiP – that equates to 30 weeks at eight hours a day, five days a week. That left a lot of other weeks for normal activities. I think that says a lot about how much this case may have affected his judgment.

McGrath set the course for this case with a rubbish publication, badly written and unethically promoted. Yes, I have read it. It is not satire. It is not parody. It is funny only in its awfulness. But he had a right to publish it, and others had a right to review it.

Jones did get overly personal and, in my view, inaccurate in some of his criticisms. Mistake.

But I believe the biggest mistake is McGrath’s failure to take the partly self-inflicted pile of shit on the chin and move on. It will cost him dearly for the rest of his life.

It has to stop somewhere. Now would be good.

(This is my interpretation, and mine alone, of events, some of which I have witnessed, and some of which I have read in McGrath’s and Jones’s accounts, and from other sources promoted by McGrath and Jones.)

11 02 2013
Law and Media Round Up – 11 February 2013 « Inforrm's Blog

[…] the claimant permission to appeal in the case of McGrath & Anr v. Dawkins & Ors.  We had a post on this interesting first instance decision about online forums on 18 April […]

30 07 2013
Jacques Oeuf

Oh dear. McGrath subsequently tried to sue The Independent newspaper regarding its reporting of his losing the case described above. He has just lost that libel claim, too. Some may say he has truly lost the plot… wonder who he”ll go after next?

His Twitter timeline has descended into an anti-Russian (Lebedev, owner of the Indie), anti-Libel Reform rant. His claim to be ‘non-political’ has gone out of the window as he appears to accuse everyone against his point of view of being cold war era Russian-style socialists.

Truly a sad spectacle. I feel for his family, but they should have stopped him long ago.

http://www.pressgazette.co.uk/author-fails-bid-sue-independent-libel-over-coverage-failed-libel-claim
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2013/2202.html&query=mcgrath+and+independent&method=boolean

20 11 2014
Gav S

Goodness me Chris, how much money are you going to waste futily trying to censor any criticism of you or your amusing book?

I really do pity your family, likely having to be considerably out of pocket simply because you dug yourself into a massive hole and didn’t know when to stop digging.

On the plus side, thank you for sending me 2 free copies of you book on top of the original one, 3 books were surprisingly useful getting campfires going on cold nights.

Regards, Gav Smith.

(The reviewer of your book that even you knew better than to take legal action against)

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