Case Law: ZAM v CFW, Court awards anonymity for victim of libellous “paedophile” allegations – Rosalind English

The permanent damage that internet publications can inflict is very much the focus of Tugendhat J’s assessment of damages in the case of ZAM v CFW & Anor [2013] EWHC 662 (QB), encapsulated in the memorable description he quoted in an earlier judgment: “what is to be found on the internet may become like a tattoo“.

Since the advent of internet search engines, information which in the past would have been forgotten (even if it had been received front page coverage) will today remain easily accessible indefinitely. So a libel claimant who has a judgment in his favour nevertheless risks having his name associated with the false allegations for an indefinite period.

This is just what had happened in the present case. The second defendant’s liability for libel had already been established. This hearing was to assess the appropriate level of damages for allegations he had published on the internet, in breach of restraining orders against him, suggesting the claimant was guilty of misappropriation of family funds and paedophilia.

Background facts

The claimant had worked in finance for over thirty years, holding senior positions in businesses engaged in the management of investors’ funds. He had also been the chairman of a board of school governors. His wife, and her sister, were the beneficiaries of substantial family trusts. The second defendant was not a beneficiary of the trusts, but, as the husband of the first defendant, he had benefited from the trusts indirectly. But after separation from his wife, he set out to achieve a financial gain from the trusts greater than that which his wife and children (and, it seems, he himself) would otherwise obtain. He had been engaged, in other words, in extortion or blackmail. What many blackmailers threaten to publish is essentially true information. But in this case the second defendant threatened to publish allegations which were “entirely false and without foundation” as the judge had decided on 30 July 2012. The second defendant made no appearance in this hearing, nor did he put forward any defence. As the judge noted, he had not taken the opportunity presented by these proceedings to set out any legal or factual basis for his allegations. If there had been any foundation for the sexual allegation, that too could also have been raised in this court as a defence to this claim.

However, the Second Defendant has never identified any details of the sexual allegation: he has identified no victim, and no place or date where the relevant acts might have been performed.

The issues before the court were whether the claimant should be granted permanent anonymity;  the extent to which first defendant (wife of the second defendant) could rely on publications not pleaded in the particulars of claim; and the amount of damages.

The arguments

The sting of damaging allegations change with the  times. Deviations from the norm, like adultery or alcoholism, no longer attract the opprobrium they did. It is probably true that the allegations levelled at the claimant – financial dishonesty and paedophilia – are the most injurious of accusations in current times. The claimant contended that the usual approach of English libel law, granting damages at the conclusion of legal proceedings, was an inadequate remedy for the injury thus caused to reputation and the right to private life under Article 8.  In any event, the claimant maintained,

the courts when dealing with cases of blackmail or extortion have long been accustomed to granting anonymity

Tugendhat J concluded that it was right in this case to grant anonymity to the claimant on a permanent basis because the second defendant was attempting to blackmail him. (An anonymity order should not be confused with a “super injunction” although the he terms have occasionally been confused). £120,000 was granted by way of damages including an amount for aggravated damages of £20,000.

The reasoning behind the judgment

The principle of freedom of expression in English law has long militated against the grant of interim injunctions to silence allegations that might be proved true at trial.   For this reason it used to be extremely unusual for courts to restrain the publication of a slander or libel before trial. But the advent of the internet has made it easy for people to publish false and malicious allegations and to do so as a means of extortion – as in this case – or harassment or revenge.  So interim injunctions are increasingly granted to restrain this kind of harassment in the form of campaigns of vilification.

The defendant in such a case forfeits his right to freedom of expression even after a final judgment has been entered.  A claimant who succeeds in trial is normally entitled to a permanent injunction to vindicate the right that he has proved that he has.

Freedom of expression is valued, amongst other reasons, because it tends to lead to discovery of the truth. R v Secretary of State for the Home Department ex parte Simms [2000] AC 115, 126E-G. So where a defamatory allegation has been proved to be false (as has happened in the present case) there is no public interest in allowing it to be republished, and a strong public interest in preventing the public from being further misinformed. Final or permanent injunctions have been routinely granted after final judgments.

As a matter of principle, there was no reason why an anonymity order should not be made in a defamation action. The claimant should be granted anonymity on a permanent basis because the second defendant was attempting to blackmail him. If the second defendant had complied with the interim injunctions, then anonymity might not have been required, but the history of internet publications demonstrated that the second defendant would be likely to use any public judgment that named the claimant to exact further revenge, or support further extortionate demands. The court had to adapt its procedures to ensure that it did not provide encouragement or assistance to blackmailers, and did not deter blackmail victims from seeking justice from the courts.

As to damages, the judge took into account the fact that the present maximum award of general damages for defamation, allowing for inflation,  is of the order of £275,000: Cairns v Modi [2012] EWCA Civ 1382

For the publications to the small number of publishees identified the least sum necessary to compensate the claimant for the injury to his reputation, and to mark the seriousness of the slanders and libels, was £100,000. In addition, the aggravating factors were particularly grave, and a further £20,000 was necessary to compensate the claimant for the distress and harassment suffered.

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks