Case Law: Bussey v Page, “Unknown hacker” defence rejected, libel damages of £50,000 for internet abuse

10 03 2015

The Bussey Law Firm, Google+ cover photo, company page (1)In the case of Bussey Law Firm PC and Timothy Raymond Bussey v Jason Page (aka Jay Page) ([2015] EWHC 563 (QB)) a US lawyer and his firm were awarded libel damages of £50,000 for internet abuse by an individual in England.  

Sir David Eady was not persuaded by the Defendant’s “unknown hacker” defence and held that it was likely that he was responsible for a defamatory post on Google Maps concerning the Claimants.

Background

The First Claimant, Bussey Law Firm PC, is a law firm in the state of Colorado, in the United Statements. The Second Claimant, Mr Timothy Bussey, is the principal of the firm.

Reviews of businesses that appear on Google Maps can be posted on the site and are accessed throught the search engine. Someone posted a defamatory allegation on the Claimants’ Google Maps profile, alongside a number of positive reviews of him and his firm.

The offending post was in the following terms:

“A Google User received 10 months ago

Overall Poor to fair

Scumbag Tim Bussey, pays for false reviews, loses 80% of his cases.

Not a happy camper

3 out of 3 found this review helpful”

There was no suggestion that these allegations were true.

The defendant Jason “Jay” Page is a young man in his 20s who lives with his parents  in Telford.  The issue in the case was whether the Claimants could prove that the Defendant was responsible for the posting.

Judgment

The posting was made on 27 January 2012.  The Claimants obtained a subpoena in California and obtained Google’s records.  These showed that the posting had been made from the Defendant’s Google account.

After the commencement of proceedings the posting was voluntarily removed by the Defendant.

The claim related only to publication in Colorado.  The claimant relied on the presumption that foreign law is the same as that in England (see eg. Ames v The Spamhaus Project Ltd [2015] EWHC 127, at [109]).

The Defendant suggested that a third party must have hacked into his Google account to post the offending review.  The Judge noted that it would be challenging to hack into the Defendant’s account because he had particularly sophisticated password and security arrangements. [7]

The Defendant’s argument that he was the hacker’s main target was complex. Sir David Eady concluded that “this somewhat obscure explanation defies probability” [8]

The Defendant had advertised on Twitter as being willing to post “feedback” or “testimonial” (a description which corresponds to the posting complained of here) for $5 via the Fiver.com website. Ths would, as the Judge noted, provide a possible motive for his targeting the Claimants, of whom he had no personal knowledge or experience [10].

The Judge concluded that

“The likelihood is, in the absence of any convincing explanation to the contrary, that the posting from Mr Page’s account was authored or authorised by him. It is extremely improbable that anyone successfully hacked into that account on 27 January 2012 with a view to posting the words complained of. There is no evidence that anyone did so on that date and, moreover, no reason why anyone with a grudge against the Claimants should attempt to go down that route in any event. Why Mr Page should himself choose to attack the Claimants is also unclear, but the most likely explanation would appear to be a purely financial one”. [11]

The Judge noted that the publication was calculated cause serious harm to the Claimants.  In Mr Bussey’s case the Judge said

“There is no doubt that the allegation caused Mr Bussey considerable anxiety and distress, as it reflected upon his personal integrity and his professional competence throughout the period of ready access” [13].

He assessed the damages payable to Mr Bussey in the sum of £45,000 and the damages to the law firm in the sum of £25,000 for the law firm. As the the claim for damages was capped at £50,000 that was the total sum recovered by the claimants ([13] to [15]).

The Defendant was refused permission to appeal and was ordered to pay £50,000 on account of costs pending a detailed assessment.

Comment

This decision has has attracted some media attention in both Britain and the US. The Daily Mirror had the headline “British troll living with parents handed £100k libel bill after targeting American lawyer on Google” and the Daily Telegraph “Internet troll faces £100k damages after targeting US lawyer for groundless attack“.

The case shows that it is possible to pursue the publishers of internet abuse through the courts – although it appears to have required a particularly determined and dogged claimant to track down the defendant and bring him to court.  After all that effort it seems unlikely that the claimants will recover their damages and costs.  They can, however, point to the verdict of the court as vindication.

The defendant’s deployment of the “unknown hacker” defence did not impress the Court.  In reality, once a communication has been tracked to someone’s IP address, it is highly unlikely that they will be able to displace the obvious inference that they were its author.

One unusual feature of this case is that the damage for which the claimants were compensated occurred entirely in the United States.  Because the English Court had jurisdiction over the defendant it has no power to stay proceedings on the grounds of forum non conveniens (see Owusu v Jackson [2005] 1 QB 801, ECJ).

However, the claimant still had to satisfy the “double actionability” rule: that is, he had to show that the words complained of were actionable both in the UK and in Colorado.  In other words, the Claimants must plead and prove that the publication complained of was actionable in the law of the country where the alleged tort was committed as well as by English law (see s.13 the Private International Law (Miscellaneous Provisions) Act 1995).  In this case they did so by relying on the presumption, in the absence of evidence to the contrary the court will presume that foreign law is the same as English law.

On the facts of this case, even if  a First Amendment “malice” standard had been applied the Claimants would have succeeded as, on the Court’s findings, the Defendant plainly had no “honest belief” in the truth of the publications.

The Claimants’ solicitor commented

“We hope that this decision sends a message that fake negative reviews have a real impact on real people and those who post them can and will be held accountable”.

 


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