Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Mixed Outcome
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Kate Gibbons claimed that the pony she had purchased from Louisa Donovan was unsuitable for children and attempted to get a refund. After Donovan refused, Gibbons’ husband or son posted a video on YouTube showing the “pony bucking while being lunged” with a caption mentioning Donovan. Donovan brought a libel suit against Gibbons, and the video was found to be defamatory.
Louisa Donovan brought this libel action against Kate Gibbons, who purchased her polo pony, Lady Gaga. After deciding the pony was unsuitable for children and being denied a refund, Gibbons arranged for her husband or son to upload videos of the pony on YouTube. These videos showed the “pony bucking while being lunged” and included a caption stating “Pharmapoloponies.com Louisa Donovan sold this polo pony as being suitable for children. Downright dangerous and a scandal they get away with this.” Citing the Defamation Act of 2013, Donovan claimed that these videos were defamatory and sued in libel.
His Honour Judge Richard Parkes QC delivered the opinion in this case, where the High Court of Justice considered “whether the words and video complained of are defamatory of the claimant at all.” The defense argued that the words were not defamatory and that they reflected only Donovan’s company or the product sold by the company, i.e., the pony. Considering these issues under the common law, the Court agreed with the defense that the claimant’s words reflected upon Donovan’s business reputation. Applying the legal principles from various cases, including Yeo v. Times Newspaper Ltd. and Joseph v. Spiller, the Court first considered if the videos’ captions were facts or comments.
The Court noted “[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,” which the Court emphasized is especially “important on the internet, where people can make 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.” The defense attempted to draw an analogy between YouTube and TripAdvisor, claiming both are venues for review or comments rather than for facts. The Court, however, disagreed with this categorization and rejected the argument.
The Court found that there was a “defamatory allegation of fact: that the claimant sold a dangerous pony as being suitable for children (i.e. the ‘business’ defamation…)” and held that “the ordinary reasonable person watching the video will have concluded that the claimant had sold the defendant a dangerous pony as being suitable for children, even though she must have known that it was in fact wholly unsuitable for them.” Because this “conduct would plainly entail a reckless preparedness to put the children at risk,” the Court determined that the video’s caption “is of course unarguably defamatory of the claimant in a personal, as well as a business, sense.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In accordance with national case law, the High Court of Justice upheld and applied the current standards for libel.
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