May 13, 2010
In an important judgment handed down today in the High Court, Mr. Justice Eady ruled in favour of Bryan Cave pro bono client David Osler, a well-known journalist and blogger, who was defending a libel claim brought against him by Johanna Kaschke. London associate Robert Dougans represented Mr. Osler and acted as the advocate at the hearing. Mr. Justice Eady ruled that the claim against Mr. Osler was an abuse of process and should be struck out.
This significant case clarifies the position in respect of bloggers and the online media in relation to the liability they face in respect of old postings still available in their archives. Dougans advised on the recent landmark libel case win for Dr. Simon Singh brought by the British Chiropractic Association, which has been one of the causes of a campaign to reform England's libel laws.
The Osler case arose out of a blog post written by Ms. Kaschke in which Ms. Kaschke stated that she had been wrongly arrested in Germany in the 1970s. Mr. Osler linked to, and summarised her blog post, which caused Ms. Kaschke to sue him for libel. However, Ms. Kaschke did not issue the claim form until over a year after Mr. Osler’s blog was posted on the web. Mr. Osler applied to the court to strike out the claim on two grounds, namely that the claim was an abuse of process and that there was no evidence of any publication after the expiry of the 1-year limitation period.
In the light of this decision, it is clear that real evidence of publication of such material is required, and that it will not lightly be inferred by the courts.
Dougans successfully convinced the court that the claim brought by Ms. Kaschke fell within the situation envisaged in the case of Jameel v Dow Jones  QB 946, and should be struck out as an abuse of process. Mr. Justice Eady held that there was very little difference between what the claimant had put into the public domain and what Mr. Osler had published on his blog. In the circumstances, damages could only ever be very minor and a trial was simply not worth the time and expense that would be incurred. On these grounds, Ms. Kaschke’s claim was struck out as an abuse of process.
“This is a rare occasion where the Jameel argument has actually succeeded in striking out a claim. This argument is often run, but rarely succeeds” Dougans said. “Mr. Justice Eady's decision today ought to clarify exactly when it is appropriate to run this argument, and give clarity to both Claimant and Defendant lawyers as to the type of dispute, which should be allowed to proceed by the courts” Dougans added. “This is not just my victory. My thanks go to the excellent William McCormick QC, of Ely Place Chambers, and David Allen Green, Of Counsel at Preiskel & Co; both played a key role in assisting me in this case, particularly in the development and expression of the key arguments, which were successful on the day. Further thanks are also due to Tooks Chambers' Joel Bennathan QC and Martin Huseyin, who offered their time to represent Mr. Osler at trial, should it have been necessary, on a pro bono basis. It is a privilege to have been able to work with such a team.”