THE OUP NATIONAL MOOTING COMPETITION
2016 – 2017
Round 4 moot problem
IN THE COURT OF APPEAL
BETWEEN
Appellant
Respondent
Background
1. Fake News! is an internet service provider that allows people to post blogs and comments
on issues of the day. Fake News! is extremely popular, and has a large and faithful audience
of users. Fake News! is understandably keen to ensure that all content posted on it is
accurate and does not breach any laws. Before a user can post a comment, s/he must
provide Fake News! with their personal details and must also accept their terms and
conditions of use.
2. These terms and conditions make it clear that users may not post material that would
breach the criminal law or would be defamatory, and the Fake News! website contains a
“report this comment” function for users to alert Fake News! to any such material. Under a
“three strikes rule”, if a user is found to breach these terms and conditions three times, Fake
News! will not post any future comments from that user until it has been checked by their
moderators.
3. One of Fake News!’s most prolific users is an angry middle-aged man based in America, who
uses the screen name “Ronald Trump”. Ronald Trump’s real name (if that is not it) is not
known publicly, nor are any of his other details. While Ronald Trump’s posts are widely
followed and shared, he is not renowned for his accuracy. In fact, Fake News! has received
thousands of complaints about his posts over the years.
4. As a result, Fake News! triggered the “three strikes rule” and placed all of Mr Trump’s
comments under moderation before publication. However, so prolific were Mr Trump’s
comments and so overworked were Fake News!’s staff that they did not have time to check
all of his comments properly.
5. A few months ago, Mr Trump posted a comment on Fake News! about a respected UK firm
called GCHQ Co, which is in the business of supplying hearing aids, ear trumpets and the like.
Mr Trump posted that GCHQ Co had breached the criminal law by committing widespread
fraud.
6. GCHQ Co became aware of the comments after five days. It used the “report” function to
alert Fake News! to the fact that Mr Trump’s comments were wrong, defamatory and
“utterly ridiculous”, and to demand their removal. Owing to an error, this report was filtered
into the wrong inbox and was never forwarded to a moderator for action.
7. After a week with no action, GCHQ Co wrote to Fake News! outlining their complaint again,
and in full. Upon receiving the letter, Fake News! immediately forwarded the complaint to
Ronald Trump for him to take appropriate action, and informed GCHQ Co that it had done
so.
8. Unfortunately, Ronald Trump was away on a golfing holiday at the time and did not receive
the letter until two weeks after it had been sent. When he did see it, he simply thought it
was an example of the establishment trying to silence him, and refused to do anything about
it. Consequently, Fake News! deleted the post itself.
9. By that time however, the post had been widely viewed and GCHQ Co was caused serious
financial loss.
10. GCHQ Co brought a claim for defamation against Fake News! At first instance, Clinton J
found that the posts made by Ronald Trump were defamatory, but ruled that:
(i) In accordance with s.10 of the Defamation Act 2013 there was no jurisdiction to
hear the claim against Fake News!. It was reasonably practicable to bring an action
against Ronald Trump himself, because it was possible to seek a Norwich Pharmacal
Order; and
(ii) In any event, Fake News! could not be considered a publisher of the post and in the
circumstances it had a defence under s.1 of the Defamation Act 1996.
13. GCHQ Co now appeals on the following grounds:
(i) The judge erred in finding that it was possible for GCHQ to identify Ronald Trump
within the meaning of s.5 of the Defamation Act 2013;
(ii) Fake News! was a primary publisher and so could not avail itself of the statutory
defence. Even if it were not, following the principles set out in Tamiz v Google [2013]
EWCA Civ 68, Fake News! was not protected by s.1 of the Defamation Act 1996.
--Ends--
Written for the OUP National Mooting Competition 2016/2017.
Not to be reproduced without permission from OUP. Please credit where appropriate.
