Who: Louisa Donovan and Kate Gibbons
Where: High Court of Justice in England
When: 21 October 2014
Law stated as at: 4 November 2014
The High Court was asked to consider whether three videos posted on YouTube were defamatory. The videos contained footage of a polo pony, named ‘Lady Gaga’, bucking and rearing whilst being lunged by her new owner, Kate Gibbons. These were posted on YouTube during 2013 and remained online until February 2014.
Mrs Gibbons had previously found the pony to be unsuitable for her children to ride and asked the seller, Louisa Donovan and her business AD Pharma Consulting Ltd trading as PharmaPoloPonies, to take it back. Ms Donovan refused and the videos on YouTube followed.
The videos did not have any dialogue, but were entitled “Pharma Polo” and “Pharma Polo 1″ and included a caption naming Ms Donovan and her business’s trading name and suggesting it was “dangerous” that the pony had been sold as suitable for children and a “scandal” that “they get away with this.”
Ms Donovan sued Ms Gibbons for libel, arguing that the videos were defamatory of her.
Ms Gibbons defended the videos by claiming that they were honest comment or opinion. In particular, Ms Gibbons argued that the comments on the video were only targeted at Ms Donovan’s company and the horse, not at Ms Donovan herself. The judge decided that the videos were not statements of opinion, but of fact and that they were defamatory of Ms Donovan herself because they reflected on her business reputation and, ultimately, her personal character.
In delivering the judgement, the judge gave the following sage advice;
“A fair balance has to be struck between allowing a critic the freedom to express himself as he will and requiring him to identify to his readers why it is that he is making that criticism. That is particularly important on the internet, where people can make a public comment about matters which are far from generally known, and where it will often be impossible for other readers to evaluate the views expressed.”
Why this matters:
Of course every case can turn on its facts, but this case serves as an important reminder that although comments and opinions are important rights under freedom of expression, defamation may only be a few misplaced words away.
What was of importance in this case was that the videos were held by the court to imply that Ms Donovan knew the horse was dangerous when she sold it. This, in part, turned the videos into an attack on the personal character of Ms Donovan, as opposed to a comment on the quality of the goods.
It is also worth noting that the nature of the goods in this case had a determining factor on the outcome. Whereas electrical goods, for example, may be without fault on manufacture and develop a fault a short time afterwards, an animal’s temperament is unlikely to change over a short period and, therefore, by indicating that the horse was dangerous shortly after purchase, there was a damaging implication in the videos that Ms Donovan knew the horse was dangerous when she sold it.
It should also be noted that the law regarding defamation changed on 1 January 2014 when the Defamation Act 2013 came into force and the position in this case was determined in accordance with the law prior to this date. In particular, no consideration was given to the threshold for serious harm to reputation that must now be met under the Defamation Act 2013.