The recent case of Wissa v Associated Newspapers Limited ( EWHC 1518 (QB)) is an important reminder that, when pleading a defamation claim, it is necessary to set out the precise text of the words complained of and that it is not sufficient to simply state where they can be found e.g. on a particular URL.
The Claimant in this case referred in his Particulars of Claim simply to the URL which supposedly contained the allegedly defamatory words. The Claimant had pleaded that the Defendant had published defamatory words on that URL without setting those words out in the Particulars of Claim. The defendant applied to strike out the claim on the basis, inter alia, that the Claimant had failed to sufficiently identify the specific words and publication complained of.
It was held that the URL did not of itself identify the words because
a) there were several different versions of the article published on that URL on that day and
b) the article published on that URL contained large amounts of text, including readers’ comments which made it uncertain precisely what the Claimant wanted to complain about .
The judge said that the effect of CPR 16.4, PD 53 and the the guidance set down by the Court in the case of Best v Charter Medical of England Limited ( EWCA Civ 1588) was that in a claim for libel, it is necessary for the Claimant to set out word for word precisely those words which he alleges defame him, whether that is the whole of the text or an extract from a larger text. The claim was accordingly struck out: the Defendant needs to know exactly what words are complained of so that it knows the case it has to meet and can frame its Defence appropriately.
Further, as Lord Coledridge said in Harris v Qarre (1879) 4 CPD 125, an action for defamation turns not on the fact of a defendant having used defamatory expressions, but the fact of him having used those defamatory expressions.
The Claimant was not saved in this case by going onto give examples of 2 statements within the publication on that URL and actually quoting those statements. This was because the actual statements quoted did not appear in either of the two hard copy versions of the article which were before the Court. One version was from the Mailonline website, the other was a cached copy of the URL, had different update/publication times in its byline and appeared to be from a different website. This led the judge to believe that there could have been another version of the article, different from the printed versions but containing the precise words quoted in the Particulars of Claim. It was held that it would entirely defeat the purpose of a statement of case if there should be that degree of uncertainty as to the precise words complained of.
Given that the Claimant had not in the judge’s view made clear which version of the article if either (or both) he was referring to, and precisely which words within which version he was complaining about, the judge considered it inappropriate to comment on the meaning which such words might be capable of bearing, not least because they may not be words complained of.
The clear message is that, in an internet world of caching and web pages being constantly updated and re-published, Claimants must set out word for word precisely those words which he alleges defame him and where those words can be found including, if applicable, which version of the publication. By the same token, it will not suffice to plead that the Defendant made a statement “to the effect that…” or to plead the gist of what was written about the Claimant. Interestingly, the judge’s decision was not expressly confined to online publications and therefore it is safest to assume that it applies to all publications, even those which are readily accessible and of which there is only one version.
Valerie Paisner is a solicitor at Simons Muirhead & Burton