Blog libel suit thrown out because potential damage was so small

Out-Law News | 14 May 2010 | 3:27 pm | 3 min. read

A libel suit against a website has been thrown out of court because the potential damage to the reputation of the person making the claim was so small.

Johanna Kaschke sued blogger David Osler after he published an article about Kaschke's arrest in Germany in the 1970s in connection with a link to an extremist political group that was never proved.

The blog said that the group was the Baader-Meinhoff gang, but Kaschke said in her objections to the post that that group was never named in any of the German prosecutor's documents. Kaschke was released without charge after three months in prison and compensated for wrongful arrest.

Osler based his article on a post on Kaschke's own website, which has since been taken down. Kaschke sued him for libel, saying that "the whole flavour of this article was positively assertive of terrorist activities and connected [her] to it".

But Mr Justice Eady in the High Court has said that the difference between the content of Osler's blog post and Kaschke's own, and therefore the additional damage to her reputation, was so small that a court case was not merited.

Even if slight damage were proved the damages would be so small that they would be dwarved by the costs of running a full jury trial. Mr Justice Eady said that, following a precedent set down in a libel case between Yousef Jameel and Dow Jones in 2005

"If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal," said Lord Justice Phillips in that case in the Court of Appeal. "The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick."

"It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake," he said.

Mr Justice Eady said that the same rule applied here and that if the case were allowed to proceed it would be an abuse of process.

"It is necessary … to try and assess what a jury would make of the alleged injury to Ms Kaschke's reputation," he said in his ruling. "If the jury came to the conclusion that none of the defences raised could succeed, I cannot imagine that the damages would be other than very modest. I would take the view that any such award would be out of all proportion to the time and money spent on this litigation and, in particular, to the cost of a two-week jury trial."

"In the circumstances, I have come to the conclusion that this is indeed one of those unusual cases in which the doctrine of abuse of process, as discussed by the Court of Appeal in [the Jameel case], should be applied," he said.

Cases where the stakes are so small rarely make it to the High Court or Court of Appeal, but small claims courts cannot deal with defamation actions because of their complexity.

Osler gave Kaschke a right of reply and her response to the blog post was published on his site.

"It is clear from Mr Osler's wording in the offending post that he was quite prepared to accept Ms Kaschke's denial of any wrongdoing and the fact that she had been compensated for wrongful imprisonment," said Mr Justice Eady. "I am quite satisfied that the posting does not link her to terrorism, in the sense of suggesting in any way that she was directly linked with it or that she approved of the extremist activities. He was merely choosing to highlight an unusual event in the history of someone who was at the material time active in politics in London. He was, in effect, taking her own assessment of the situation at face value."

Kaschke is pursuing another libel suit against a different blogger. The High Court has ruled that her case against blog Labourhome.org could not be struck out. The operators of that site had claimed that it was protected by the E-Commerce Regulations, which absolve online services from responsibility for content they did not create or edit.

The High Court said that a full trial was necessary, though, because the blog operator had engaged in enough editing of home page material to mean that the Court could not throw the case out under the E-Commerce Regulations's exemptions.