The case of Brian Dudley v Michael Phillips - damages for defamation and breach of GDPR
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The first case where damages were awarded in both defamation and breach of data
PissedConsumer.com is a website that operates from Nevada US. WordPress is a website that operates from California US. Both platforms were used by an anonymous internet user to defame our client, Brian Dudley. Our client sued for defamation.
Our client, Brian Dudley, was a financial adviser with a successful and a promising career. After he had a fallout with a colleague, Michael Phillips, anonymous internet users began to post defamatory posts against Mr Dudley on the website PissedConsumer.com and on a WordPress website, which was dedicated to posting defamation against Mr Dudley. Soon after, the offending and defamatory posts began to appear on Google search results for searches for Mr Dudley’s name.
As a result, Mr Dudley had lost his job and was unable to obtain employment in the UK. No matter how many times Mr Dudley requested the operators of PissedConsumer and WordPress to delete the defamatory content, both website operators persisted with their refusal to do so. A request by Mr Dudley to Google to have the search results which featured the defamatory posts from PissedConsumer and WordPress delisted was also declined by Google. Mr Dudley was left with no alternative but the leave the UK and seek employment in the Far East. However, the anonymous internet user continued to pursue him with his new employment.
Whilst Mr Dudley suspected that it was the former colleague who was responsible for the postings of the defamatory posts about him, he was unable to prove this. The only means, he believed, of identifying the anonymous internet user who posted the defamation against him, was to issue subpoenas in California and in Nevada, which would compel the website operators of WordPress and PissedConsumer to disclosure whatever data they might have about their anonymous internet users.
Once such subpoena was issued, the anonymous internet user would be notified by each of the website operators of the legal request made against them. Obtaining disclosure from a US based website operator, would usually take anything between 30-60 days to complete. In the meantime, our firm had also tried to identify the anonymous internet user via various other means.
Shortly after Mr Dudley moved to live overseas, his anonymous defamer contacted Mr Dudley’s new employer by email and by telephone to “warn” them about Mr Dudley and to inform them to the anonymous defamatory posts, which he himself had posted about his victim. Luckily for Mr Dudley, the employer’s secretary made a note of the telephone number from which the call was made and submitted it to her boss together with her attendance note.
Whilst waiting for the disclosure process to go through, our firm carried out an extensive investigation of various online and offline sources to try and match the recorded telephone number taken by the secretary, with any other existing data that might exist.
After extensive investigations, our lawyers came up with a match. They found an old Facebook advert for the sale of a boat, which contained the very same telephone number which was used to call Brian Dudley’s employer. Additional investigations of the telephone number, as well as other information that came to light, resulted in identifying the anonymous internet user as no other than Brian Dudley’s former colleague, Mr Michael Phillips.
After we identified Michael Phillips as the anonymous defamer of Mr Dudley, we issued legal action for libel defamation against Mr Phillips. In addition, we also issued a claim under the Data Protection Act for the misuse by Michael Phillips of our client’s personal data.
In many cases, when someone posts defamatory posts against an individual, the defamatory posts also constitute a breach of the individual’s data, and as such, a breach of GDPR. This is because the poster of the defamation is incidentally also posting inaccurate data about the individual in question. Cohen Davis, therefore, on behalf of Brian Dudley brought a claim in the High Court against Michael Phillips for defamation and for breach of data.
The claim against Mr Phillips, included claims for damages for defamation, damages for breach of GDPR, or breach of data, and an injunction to compel the website operators, WordPress and PissedConsumer to remove the defamatory posts from their platforms.
Following a trial, Mr Dudley won damages from Mr Phillips for both defamation and breach of GDPR, as well as an injunction, which ordered the website operators in question to have the defamatory posts removed.
Notably, both WordPress and PissedConsumer are platforms that operate in the US and as such, are governed by US law. Generally speaking, whilst it is nearly impossible for US courts to make an order to compel website operators to remove or to delete defamatory posts, the Defamation Act 2013 gives the English court a right to do just that.
Under Section 13 of the Defamation Act 2013, where a court gives judgment for the claimant in an action for defamation the court may order the operator of a website on which the defamatory statement is posted to remove the statement, or any person who was not the author, editor or publisher of the defamatory statement to stop distributing it.
On this basis, the court agreed to grant an injunction, which would require both websites to delete the defamatory posts. Whilst the operators of WorldPress agreed to delete the defamatory website which was created by Michael Phillips against Brian Dudley in advance of the grant of the defamation injunction, the operators of PissedConsumer kindly agreed to have the defamatory posts deleted from their website following receipt of a copy of the injunction.
You can read the full judgement in the case of Brian Dudley v Michael Phillips here.
One of the main challenges that victims of defamation are facing, is the identification of the individuals behind the anonymous accounts who posted the defamation against them. Identifying anonymous internet users is one of our specialities, and in 99 cases out of 100, the lawyers at Cohen Davis have been successful in identifying anonymous internet users.
Once you get through the hurdle of identifying the anonymous internet user who is responsible for posting the defamation, it becomes much easier to obtain judgment and to have the defamation removed from the internet.
Whilst on occasions, it could be highly challenging to have defamatory posts removed from a website which operats in the US, on this occasion, the operators of PissedConsumer have been highly cooperative and respectful to the court order issued by the judge in England.
The solicitors who acted for Brian Dudley are Paul Greenberg and Yair Cohen of Cohen Davis Solicitors.
Case study disclaimer
Case studies are based on true cases where names, dates and circumstances have often been amended to protect the identity of those involved.