Can there ever be safety in numbers when it comes to libel?
28/10/2021
When defending a libel claim, it’s a given that a defendant will try to mitigate the damage a publication might have caused by any means possible, but what relevance do other similar publications have? Can they assist a publisher in defending the case? When it comes to publishing, can there ever be safety in numbers?
In the recent case of Wright v McCormack a pre-trial review explored precisely this issue; the question of whether a Defendant could refer to other similar publications to effectively ‘dilute’ the level of harm caused by a publication. Specifically in this case the argument was advanced in order to argue that the publication complained of did not pass the vitally important serious harm test.
The case was brought by Dr. Craig Wright, a well-known figure in the Bitcoin and cryptocurrency community. It is well-publicised that Wright has previously claimed to be the writer of the 2008 Bitcoin Whitepaper and that he is the figure behind the Satoshi Nakamoto pseudonym, the name commonly given to the creator of Bitcoin.
The Defendant, Peter McCormack, is a blogger within the same community and has a substantial following on social media.
In March 2019, the Defendant published Tweets and a YouTube video which alleged that the Claimant was not in fact Satoshi Nakamoto. This prompted the Claimant to bring libel proceedings on the basis that both the Tweets and the YouTube video carried the meaning that he fraudulently claimed to be Satoshi Nakamoto.
Whilst the claimant stated that he had been caused reputational harm as a result of the publications (including revoked invites to academic conferences and academic papers being rejected), the Defendant blamed other publications which had made the same or very similar statements for the harm that had been caused. So, could those statements, published by other publishers, on previous occasions be used to mitigate the reputational harm caused by the Defendant’s own publications?
There is a long-established rule (from the case of Dingle v Associated Newspapers Limited in 1964) that when trying to mitigate the damages payable in a libel case, the defendant cannot rely on other similar defamatory publications. In short, the argument that other people have said the same thing, so therefore your publication didn’t cause all the harm and you should have to pay a lower amount in damages, doesn’t float. Although the rule comes from a 1964 judgment it is well established and was recently reaffirmed in the well-known case of Lachaux.
In this case, the application of the rule in Dingle was not to the issue of damages but in fact, to the issue of serious harm. As we all know, in order for a Claimant to be successful in bringing a claim for libel it must be proven that the statement complained of had, or was likely to cause serious harm to the reputation of the claimant.
Despite the Defendant presenting a significant amount of evidence showing other publications similar to the statements complained of, the Court decided ultimately that this fell foul of the rule in Dingle and couldn’t be used as mitigation of harm when it came to considering the serious harm test.
Whilst the ruling is clearly case specific, it is not the outcome that publishers would have liked.
It has always been the case that it is not safe to publish allegations simply because others have already done so. Now this case, in a clear restatement of the rule in Dingle shows that previous publications will not even assist you when it comes to trying to mitigate the harm caused by your publication.
The moral of the tale? You should never rely on the publications of others, as when it comes to libel, there simply is no safety in numbers.