A High Court judge has ruled a libel action brought by political activist and Conservative Party member, Johanna Kaschke against Tower Hamlets journalist and blogger David Osler is ‘an abuse of process.’
Mr Osler’s lawyer, Robert Dougans, is speculating that the case may improve freedom of expression for online media. Ms Kaschke, also based in Tower Hamlets, said Mr Osler’s posting, published in April 2007, was defamatory in referring to her ‘Baader-Meinhof” link and that subsequent comments linked her with terrorism.
But Mr Osler denied libelling her and said he had given her a right to reply.
He argued that he was responding to an article and material posted on Ms Kaschke’s own website and had always accepted that although detained for a short time in the 1970s when she had come under suspicion, she was not guilty of any criminal offence and had actually been paid compensation by the German authorities for wrongful arrest.
“It is clear from Mr Osler’s wording in the offending post that he was quite prepared to accept Ms Kaschke’s denial of any wrongdoing and the fact that she had been compensated for wrongful imprisonment. I am quite satisfied that the posting does not link her to terrorism, in the sense of suggesting in any way that she was directly linked with it or that she approved of the extremist activities. He was merely choosing to highlight an unusual event in the history of someone who was at the material time active in politics in London. He was, in effect, taking her own assessment of the situation at face value. He went on, as a matter of comment, to point up the irony that she was now linking herself with another political grouping, the Respect Party, which contained members who thought (at least according to Mr Osler) that terrorism or assassination could in certain circumstances be morally justifiable.”
The judge said Johanna Kaschke is ‘a naturalised British citizen and is politically active in Tower Hamlets. She has from time to time changed her allegiance, politically, and has, as I understand it, contemplated standing for office.’ Johanna Kaschke has been a member of the Labour Party as well as the Respect party and joined the Conservative Party at the end of 2007. She had issued proceedings just over a year after the blog was originally published. The judge said:
“It is an important consideration for the court to have in mind on any abuse application that the fact of being sued at all is a serious interference with freedom of expression. […] the court must be vigilant to recognise the small minority of cases where the legitimate objective of vindication is not required or, at least, cannot be achieved without a wholly disproportionate interference with the rights of the defendant(s).”
Johanna Kaschke appeared as ‘the claimant in person’. The judge said he had to try and assess what a jury would have made of the alleged injury to her reputation against the background of the case:
“If the jury came to the conclusion that none of the defences raised could succeed, I cannot imagine that the damages would be other than very modest. I would take the view that any such award would be out of all proportion to the time and money spent on this litigation and, in particular, to the cost of a two-week jury trial.”
He concluded that ‘this is indeed one of those unusual cases in which the doctrine of abuse of process’ should be applied.